Pavuluri v Minister for Immigration and Border Protection

THE APPELLANT'S VISA APPLICATION AND THE DECISION-MAKING PROCESS 10 As I have already observed, the appellant's nominated occupation on his visa application was "finance manager". The appellant told both the Tribunal and the Court that he nominated that occupation because he had received advice from persons within the department in which he studied at Deakin University that this was the appropriate occupation to nominate for his degree. He indicated he may also have spoken to some of his friends or classmates about these issues. Whoever he spoke to, it is clear he did not seek out any advice from a migration agent. Putting to one side whether or not his account of the advice he received informally is correct, this account of why he nominated "finance manager" explains the sequence of events, but does not alter the facts as found by the Tribunal, nor their legal consequences. 11 The first appellant's application identified the relevant assessing authority as the "Institute of Chartered Accountants of Australia" (ICAA) and specified the date of the skills assessment application as "12 March 2010". A receipt or reference number was also provided. The appellant explained he considered the receipt or reference number was sufficient. Since the criteria at the time of application in cl 485.214 refer only to the making of an application for a skills assessment, that may well be correct, although the delegate would no doubt be entitled to ask for a copy of the application in a particular case. 12 However, cl 485.221 required that there be a successful and compliant skills assessment before a visa could be granted. Therefore, on 23 August 2011 (some 18 months after the lodgement of the visa application), the Department wrote to the first appellant, requesting amongst other documentation that the first appellant "provide [a] Skills Assessment for your nominated occupation". A time frame of 28 days for a response by the first appellant was imposed. On 19 September 2011, the first appellant wrote to the Department as follows: I have been able to organize all documents within in days but bad news is could not find the assessment. I have searched every single place in my house but no use and requested the assessing authority to resend the assessment copy. Unfortunately they could not find my details and been advised to submit the new application to get assessment. I was in trouble; I did not know what to do. Immediately I have submitted the new application for assessment and kept searching for old assessment but I could not find it. So at last, I have decided to request for extension to submit the assessment. This is not request dear officer, I am imploring to give at least 28 days extension to submit the assessment if it is possible. I know that I should not ask the extension but I don't have other way. I have got word from assessing authority that they would issue outcome in 45 days. Dear officer please consider my request and grant at least 28 days extension. 13 It appears that request was not granted. On 14 October 2011, a delegate of the Minister refused to grant the appellants' visas. The reasons refer to the first appellant's email but not to any consideration of his request for an extension of time, rather only to the fact that the necessary information was not provided. The visa was refused, on the basis that, as he had not provided a skills assessment assessing him as suitable for his nominated application, the first appellant had not met the criteria as set out in cl 485.221 of Sch 2 to the Regulations. 14 On 7 November 2011, the first appellant applied for review of the delegate's decision in the Migration Review Tribunal. In support of that application for review, the first appellant submitted a statement, dated 3 November 2011, which stated that, after making further enquiries with CPA Australia (although the visa application had referred to ICAA), he had been advised that his application for an assessment had been refused, because his education meant he was not eligible to be assessed for the position of finance manager. As this was later explained by the first appellant to the Tribunal, what he had meant in this letter was that the subjects he had studied were not the correct core subjects for the skills assessment as finance manager. 15 The letter then goes on to state that he had applied to another assessing authority, VETASSESS, for a skills assessment for the different position of "market research analyst". 16 On 5 October 2012, the Tribunal invited the appellants to appear at a hearing of their review application. On 26 October 2012, the appellants' migration agent (whom they had belatedly retained) wrote to the Tribunal requesting an adjournment of the hearing date because the migration agent was going away. A copy of a skills assessment from VETASSESS, dated 13 December 2011 and confirming the first appellant met the education requirements for the occupation of market research analyst and needed only to complete the employment requirements, was included with this correspondence. 17 The appellants appeared before the Tribunal, represented by their migration agent, on 23 July 2013. Prior to the hearing, the first appellant provided a further skills assessment for the occupation of market research analyst, dated 28 June 2013. This was a complete and final assessment, and assessed him as suitable for the then nominated occupation of "market research analyst". 18 At the Tribunal hearing, as the Tribunal's reasons record, there were issues raised about how the first appellant's decision to change his nominated occupation from "finance manager" to "market research analyst" affected his ability to comply with the criteria in cl 485.214 and cl 485.221. The appellants' agent provided further written submissions to the Tribunal on 9 August 2013. These submissions, relying on ss 99, 100 and 105 of the Act, sought to demonstrate that the first appellant could amend his nominated occupation in his visa application (from "finance manager" to "market research analyst") because the information initially provided was "incorrect". 19 The submission stated: … Relying on "s.99 & s. 100" applicant did not know that nominated occupation is correct one to be eligible with his education qualifications. Relying on s. l05. behalf of the applicant I am requesting the tribunal to allow the applicant to change his occupation from finance manager (as specified on the visa application (at time of the application) to market research analyst. [under s.105, In this case, the applicant is essentially requesting the Tribunal to allow him to change his occupation from finance manager (as specified on the visa application) to Market Research Analyst, relying on s.105 It is necessary to give detailed consideration to s.105 and its possible operation to permit correction of a mistaken occupation nomination because the fact that the applicant made a mistake in occupation nomination and not changed his mind about which occupation he wanted to nominate.] … Further, client clams that "They never have intention to foul play with immigration department, this was happened by third party interference which is in the form of advice, she is totally unaware of law and regulations which were unknowingly breached and led the visa application refused. And also client requests the Tribunal Member that he doesn't want be victim of some body mistake. (Emphasis in original.)

THE TRIBUNAL'S DECISION 20 On 20 September 2013, the Tribunal affirmed the decision of the delegate to refuse to grant the appellants' visas. 21 The Tribunal found that, in principle, there may be circumstances in which it could find the nominated occupation on the visa application form to be something other than what was stated, if there was evidence to support a different characterisation of the nominated occupation at the time of the visa application. However, this was not such a case, the Tribunal found, because the nominated occupation of "finance manager" was clearly made on the visa application. 22 The Tribunal found that the evidence in this case did not support a finding that the first appellant intended to nominate on his application an occupation other than "finance manager", and in that sense did not support the contention that the first appellant had made a "mistake". The only "mistake" the Tribunal found was that the first appellant, having correctly recorded in his visa application the occupation he intended to specify as his nominated occupation, subsequently discovered he had been ill-advised and he lacked the qualifications necessary to secure an assessment of suitability for that occupation. 23 While in colloquial terms that is a mistake, it was not, as the Tribunal found, a mistake in the sense of the first appellant specifying on the visa application an occupation he did not intend to specify. Rather, as the Tribunal found, on subsequently discovering (more than 18 months later) that he was not qualified to be assessed as suitable for that occupation, the first appellant changed his mind and nominated a different occupation. That was not, the Tribunal found, the kind of "error" capable of correction under s 105 of the Act. 24 The Tribunal went on to find that, even if it were the case that the first appellant intended to nominate the alternative occupation "market research analyst", there was no skills assessment application in existence at the time of the visa application and, therefore, the first appellant did not meet the criteria in cl 485.214.

APPLICATION FOR JUDICIAL REVIEW 25 On 11 October 2013, the appellants applied for judicial review of the decision of the Tribunal in the Federal Circuit Court. The grounds of the application were as follows: 1. S.477, Judicial Review can be lodged within 35 days after tribunal review has been finalised 2. I am not happy with tribunal decision, applying for judicial review for legitimate decision 3. I do have exceptional circumstances beyond the application lodgement previously 26 On 6 February 2014, the primary judge ordered that the application be dismissed, finding there was no legal error in the Tribunal's decision. 27 By notice of appeal filed on 24 February 2014, the appellants appeal to this Court on the following grounds: 1. I am not Happy with the decision made by Federal Circuit court of Australia 2. I am looking for the justice at Federal Court of Australia 3. Further grounds of application attached. 28 The "further grounds attached" to the Notice of Appeal can be summarised by the following extracts: Exceptional circumstances beyond his control to choose the occupation to correct the incorrect answer, as his occupation in the application was finance manager through assessing Authority "ICAA" body in Australia, he was eligible for that occupation as his education qualifications were relevant to that occupation, this advice has been given by college HOD. Other part is Assessing authority body don't even give initial advise before the application, Here, Question is How applicant could imagine whether Assessing authority body would approve the assessment or not? … Delegate hasn't responded to that query whether he could submit 1022 form or not that is minimum responsibility of the delegate as client was dealing himself for his application further processing, second thing at least delegate should have granted some time to submit the assessment, neither of them happened here moreover his application visa has been refused. Is there any procedural fairness in applicant visa processing? 29 The affidavit in support of the appeal also exhibited the submission of the migration agent to the Tribunal and to which I have referred at [18] above. 30 The Minister's written submissions on the appeal accurately summarise, in my opinion, the contentions the appellants make. They are: (a) the first appellant applied to the CPA for a skills assessment as a Finance Manager relying on information provided by the course coordinator at Deakin University and the CPA; (b) he only came to know of the refusal by CPA of his application for a skills assessment after the delegate commenced processing his visa application; (c) another application for a skills assessment was made to VETASSESS for the occupation of "Marketing Research Analyst", but the positive outcome on that assessment was not considered by the delegate; (d) unlike the cases of Patel and Shafiuzzaman, the first appellant's nominated occupations were closely related to his education; (e) that consideration should be given to the first appellant having made a mistake in nominating the occupation of "Finance Manager", and that the later nomination of "Market Research Analyst" was not a change of mind. 31 As the Minister's submissions also point out, the appellants repeat a complaint made to the Tribunal that the Department should have advised the first appellant of a form (Form 1022) he could have filled in giving notification of incorrect answers on his visa application.

CONSIDERATION 32 The appellants contend that the Tribunal should have concluded there was a mistake, which was corrected by the VETASSESS assessment for the occupation of "marketing research analyst", and that the authorities of Patel v Minister for Immigration and Citizenship (2011) 198 FCR 62; [2011] FCA 1220 and Shafiuzzaman v Minister for Immigration and Citizenship [2011] FMCA 874 did not apply. I agree with the Minister's submissions that these contentions must fail because of the scheme of the Act and the Regulations. This is also what the Tribunal found. 33 The language of the visa criteria in cl 485.214 are not susceptible to any broader reading than that given by the Tribunal, subject perhaps to the qualification it expressed in its reasons that it may be able to examine other evidence or material to clarify or explain precisely which occupation an application intended to specify. However, this was not such a case: as the Tribunal found, there was no lack of clarity, or lack of intention, around the first appellant's choice to specify "finance manager" on his visa application at the time he made the application. 34 In Patel 198 FCR 62; [2011] FCA 1220 at [41]-[49], Robertson J set out his reasoning as to why cl 485.214 required that the application for a skills assessment had been made at the time of the visa application and not thereafter. His Honour said: In my view the application for an assessment was required to be made at the time of application for the following reasons. First, there is a difference in substance between the language considered in Berenguel and the present criterion. In Berenguel, the criterion was "the applicant has competent English" whereas here it is "has applied for an assessment". The former expression goes to competence whereas the latter refers to a means for establishing or testing particular skills, that is, for the nominated skilled occupation. This consideration relates to the grammatical connection element referred to in Berenguel at [26] and it is also related to the purpose element referred to by the High Court. In the present case there is a grammatical connection between the criterion in cl 485.214 and the heading "Criteria to be satisfied at time of application". Second, there is a contrasting relationship between cl 485.214 and cl 485.221, cl 485.221 referring to a time when the skills for the applicant's nominated skilled occupation "have been assessed" by the relevant assessing authority. It seems to me that this contrast provides textual support for the construction that the application for assessment referred to in cl 485.214 is intended to be at the time of application for a visa. There was no equivalent provision corresponding to cl 885.213 in Berenguel. Further, cl 485.214 would be largely if not entirely otiose if it did not refer to an application for an assessment at the time of application for the visa. The appellant submitted that "the time of application" refers to a period rather than to a day, the period being while the application was being dealt with up to the date of decision. I reject this submission as having insufficient foundation in the statutory language. Third, it is necessary to read the provision in context. The relevant subclass requires that the applicant for such a visa must nominate a skilled occupation in the application. Then, by cl 485.213, the applicant is to meet the requirement that he or she has satisfied the two year study requirement in the period of six months "ending immediately before the day on which the application was made" and that each such degree, diploma or trade qualification is closely related to the applicant's nominated skilled occupation ie the skilled occupation nominated in the visa application. In my view, applying for an assessment of the applicant's skills for the nominated skilled occupation should be read as ancillary to the requirements of cl 485.213 and as a matter to be satisfied, in point of application to a relevant assessing authority, at the time of application for the visa. So viewed, the purpose of the provision made by cl 485.214 goes both to timeliness of the assessment of the applicant's skills for the nominated skilled occupation and to the efficient consideration of the application with reference to whether the skills have been assessed by the relevant assessing authority as suitable for the nominated skilled occupation: see cl 485.221. Implicit in this conclusion is that, contrary to the appellant's submission, the words "the nominated skilled occupation" do refer to the skilled occupation nominated in the application for the visa. In my opinion the construction of cl 485.214 which I prefer does not give rise to the "plain unfairness and absurdity" referred to by the High Court in Berenguel with reference to the construction of cl 885.213 there contended for by the Minister. 35 I respectfully agree with his Honour's reasoning. Contrary to the submissions of the appellants, it is not material that on the facts before his Honour the appellant's education was not "as close" to his nominated skilled occupation as is the case for the first appellant in this proceeding. It is Robertson J's approach to the construction of cl 485.214 which matters and that approach is, with respect, clearly correct. 36 The approach taken by both the Tribunal and the primary judge was to adopt the construction of cl 485.214 put forward by Robertson J and they were correct to do so. 37 Further, as the Tribunal pointed out in its reasons, if the correct construction of cl 485.214 is that identified by Robertson J, then the attempt by the first appellant to change the nominated occupation after the delegate's decision and to obtain a skills assessment in respect of a new occupation could not have assisted the success of his visa application. 38 If the nominated occupation is taken to be as specified on the visa application - finance manager - then, even if cl 485.214 could have been satisfied as of the date of the visa application, by evidence such as the receipt or reference number, cl 485.221 could not be satisfied at the time of decision. That is because, as the CPA subsequently informed the first appellant, and the first appellant conceded, his skills were not assessed as suitable because he did not have the requisite core subjects in his university degree. 39 Even if the nominated occupation could have been corrected - through an operation of ss 104-105 of the Act (which I do not find to be the case) - then cl 485.214 could not have been satisfied because the first appellant's application to VETASSESS for a skills assessment under the occupation of "market research analyst" did not occur until some time after the lodgement of his visa application. 40 The findings of the Tribunal to this effect were based on the account of events put forward by the first appellant himself. As the Tribunal noted in its reasons, it was satisfied the first appellant had been truthful in his evidence to the Tribunal about the sequence of events. 41 I accept the Minister's submissions that the effect of ss 104-105 of the Act is not to permit visa applicants to change their nominated occupations because they have later had a change of mind. Neither the language nor the context of those provisions suggest such a construction is available. 42 Sections 104 and 105 are contained within Subdiv C of Div 3 of Part 2 of the Act, which is headed "Visas based on incorrect information may be cancelled". Sections 101-105 set out various obligations imposed on persons who apply for visas, designed to advance the objective that all decisions on visas under the Act are made on the basis of correct and true information. The subdivision sets out a process by which the Minister may cancel the visa of a person the Minister has decided has not complied with ss 101, 102, 103, 104 or 105 or s 107(2) of the Act. Procedural fairness is to be afforded to a person exposed to the prospect of cancellation for such a reason by a notice to be given to the person under s 107 of the Act. It matters not to the availability of the cancellation power that the non-compliance is deliberate or inadvertent: s 111. Full compliance by a person with obligations to correct information and advise of changes in such circumstances may avoid cancellation: see s 113. 43 Section 104 provides: 104 Changes in circumstances to be notified (1) If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them. (2) If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted. (3) If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared. (4) Subsection (1) applies despite the grant of any visa. 44 Section 105 provides: 105 Particulars of incorrect answers to be given (1) If a non‑citizen becomes aware that: (a) an answer given or provided in his or her application form; or (b) an answer given in his or her passenger card; or (c) information given by him or her under section 104 about the form or card; or (d) a response given by him or her under section 107; was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer. (2) Subsection (1) applies despite the grant of any visa. 45 The Minister submitted that the "form" referred to by the first appellant, Form 1022, was the form used for the purposes of s 104, and there was another form, Form 1023, used for the purposes of s 105. I proceed on the basis that submission is correct. 46 Sections 104 and 105 are not freestanding provisions permitting changes to visa applications where there are changes of circumstances or incorrect answers given. In context, they are intended to operate as potential triggers for the cancellation power in s 109, and possibly as exculpations from the exercise of that power. 47 In my opinion, those provisions cannot have the kind of operation which the appellants seek to give them in this case, which is as some freestanding opportunity for a visa applicant to alter information on a visa after an application is lodged, where the alteration and new information will improve the likelihood of the visa being granted, because the visa applicant has subsequently realised a problem existed with the application as lodged. 48 Rather, s 104 is concerned to ensure that information in an application is "correct" and correctly reflects the circumstances of the visa applicant. So, for example, if the applicants for a spouse visa subsequently separate before a decision has been made on the visa, that is the kind of "change of circumstances" s 104 may oblige the visa applicants to inform the Minister about. Relevantly, the change of circumstances must cause an answer in the visa application to be incorrect. In the first appellant's situation, there was no "change of circumstances" which caused the answer "finance manager" to the question "nominated occupation" to be incorrect because, as the Tribunal found, that was the occupation the first appellant had intended to specify. Rather, the change of circumstances - the unsuccessful skills assessment for finance manager - would render the visa application itself unsuccessful. That is a matter outside the scope of s 104. 49 Or, for example, on a visa application of the kind made by the first appellant, if in answer to a question about the receipt number or reference number for the skills assessment application, the wrong number was entered because of a typographical error, this is the kind of incorrect answer "at the time it was given" which, under s 105, the visa applicant would be obliged to correct as soon as reasonably practicable. The emphasis in s 105 on the answer being incorrect at the time it was given or provided is what renders that provision inapplicable to the first appellant's situation. At the time the first appellant entered "finance manager" on the visa application form, that was the correct specification of the occupation at that time. 50 It is the case that, even if the first appellant had somehow been able to ask the Tribunal to treat his visa application as one for the nominated position of "market research analyst" (which I have found the Tribunal correctly concluded he could not do), it was still not possible for the Tribunal to be satisfied that the first appellant's visa application met the criteria in cl 485.214 and cl 485.221. This is the point made by the Tribunal in its reasons (at [38], [41]-[42]): The ultimate difficulty the applicants face is this. Even if the statement of nominated occupation in the visa application was not correct, in the relevant sense, and the Tribunal were to find that the nominated occupation was actually Market Research Analyst, cl.485.214 read with Legislative Instrument IMMI 12/068 would have the following effect. At the time of application, the applicant would have had to have applied to VETASSESS for an assessment of his skills for that occupation. The applicant gave evidence that he applied to VETASSESS only after problems emerged concerning the assessment of his skills for the occupation of Finance Manager. That was some time after he made the visa application. The judgment of Robertson J in Patel makes clear that the application for the skills assessment had to be made at the time of the application: see paragraphs [38]-[52]. The Court expressly rejected the submission in that case that "the time of application" refers to the period during which the application was being dealt with up to the date of decision: at paragraph [45]. … This case is different. In one sense the applicant may have made a mistake in that he nominated an occupation and applied to a relevant authority when he lacked the qualifications necessary to obtain a positive skills assessment. Nevertheless, the Tribunal finds on the basis of the applicant's evidence that he correctly recorded in the application the occupation that he intended to specify as his nominated occupation. Subsequently, realising that there was a problem, he sought to put forward Market Research Analyst as his nominated occupation and apply to the relevant assessing authority for that occupation. The Tribunal considers that there was not an error in the application but that the applicant essentially changed his mind. Even if that conclusion were not the correct one, the applicants could not succeed. Either the applicant applied in time for a skills assessment for his nominated occupation of Finance Manager (as required by cl.485.214) but his skills were not assessed as suitable for that occupation (as required by cl.485.221) or (if Market Research Analyst was his nominated occupation) he did not apply in time for the skills assessment. On either analysis, the applicant cannot meet both cl.485.214 and cl.485.221. … 51 Finally, the claim by the appellants that there was some procedural unfairness because the Department (that is, the delegate) did not permit the appellants to submit a form reflecting the terms of s 104 of the Act does not assist the appellants. 52 On review before the Tribunal, as the Minister's submissions point out, the appellants were able to put forward the VETASSESS assessments, and to put forward whatever new material they desired. Part of the purposes of a full merits review is to allow such a course of action, and, frequently, even if there is a denial of procedural fairness in a first instance decision, a full review process will be held to have cured it: see Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314; [2005] FCAFC 58 at [12]. 53 There is no occasion to consider the application of those principles, because it is not apparent to me there was any denial of procedural fairness by the delegate or the Department. As I have outlined at [45] to [49] above, the form the appellants wished to have been able to submit (under s 104 of the Act, or even s 105) could not have cured the problems with the visa application. Those provisions of the Act simply do not cover the situation faced by the appellants. The dilemma to which I have referred above would have remained, even if the details had been altered after the application was submitted to reflect the occupation of market research analyst and a new skills assessment. What was required was an entirely new visa application, so that the "time of application" criteria in cl 485.214 could be met. 54 In its reasons the Tribunal made the following observations (at [45]): There is some discussion in the authorities of the policy reasons for applicants being unable to change their nominated occupation once they have indicated that. That can have unfortunate consequences for applicants as it has for the applicants in the present case. They first arrived in Australia nearly six years ago. They were married here. They have both obtained postgraduate qualifications here. They wish to remain in Australia. The Tribunal considers that they have given truthful evidence about their circumstances. Whoever is responsible for the mistake about the applicant's eligibility for employment as a Finance Manager, the consequences have been serious for the applicants. 55 Those remarks are apposite. However, they cannot affect the conclusion this Court must reach: namely that the Tribunal's decision is not affected by any legal error, let alone a jurisdictional error. The primary judge was correct to so find. 56 The appeal must be dismissed. There is no basis to depart from the usual orders as to costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.