Suryawanshi v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1136

1. On 1 December 2022 a delegate of the Respondent granted a Temporary Graduate Visa (Subclass 485) in the Graduate Work Stream to Mr Mitesh Suryawanshi (the Applicant).
2. By an application made on 9 January 2025 the Applicant seeks an extension of time under s. 477(2) of the Migration Act 1958 (Cth) to seek judicial review of the grant of that visa to him.
3. It is notable that the Applicant's application for an extension of time in which to commence a judicial review application concerns the grant of a visa to him not a decision to refuse to grant him a visa.
4. Of significance to his application is that there are two "streams" within the Temporary Graduate Visa subclass. The Applicant's substantive grievance is that he should have been granted a visa in the other stream: that is, he should have been granted a visa in the Post-Study Work Stream and not in the Graduate Work Stream of the relevant visa subclass. Although it is not necessary to make any formal finding as to these matters, his grievance was animated by his belief that a visa in the Post-Study Work Stream visa was likely to be of longer duration - for three years rather than the two-year visa he was granted - and a visa in the Post-Study Work Stream would have provided the foundation for the grant to him of subsequent visas not available to him in the Graduate Work Stream.
5. In summary, there is not sufficient merit in any of the Applicant's grounds of review to grant an extension of time. I will dismiss the application for an extension of time. My reasons follow.

1. In the usual course, I consider judicial review applications only after a merits review application to what is now the Administrative Review Tribunal. In this case, I nonetheless have jurisdiction as to a delegate's primary decision because the decision to grant the Applicant the visa is not a "Part 5 reviewable decision" under s. 338(2) of the Act in a way in which a decision to refuse the visa would have been merits reviewable.
2. Also in the usual course, I consider judicial review applications in circumstances in which a visa has been refused - rather than, as here, granted - but the Minister did not submit that the determination of the issues before me was moot or lacked utility (Cf. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2020] FCAFC 87; (2020) 276 FCR 1 at [4], [18]-[28]).

1. I admitted into evidence the Applicant's affidavit made on 7 January 2025 (Ex A2).
2. The following summary of the relevant facts is drawn from that affidavit (Ex A2) and the Respondent's submissions (Ex R1).
3. In February 2020, the Applicant arrived in Australia.
4. On 7 September 2022, the Applicant engaged a registered migration agent to assist with lodging an application for a Temporary Graduate visa (Subclass 485) application.
5. On 9 September 2022, his agent provided a draft visa application to him for his review. The draft application was in the Graduate Work Stream. The Applicant identified and reported several minor errors which are not material and which were corrected prior to submission (Ex A2, [2]; Annexures A13-A14).
6. On 13 September 2022, the application, as lodged remained for a Temporary Graduate Visa (Subclass 485) in the "Graduate Work Stream".
7. On 1 December 2022, the delegate granted the Temporary Graduate Visa (Subclass 485) in the Graduate Work Stream for a period of 2 years to expire on 1 December 2024. That is, the delegate granted the very visa for which the Applicant had applied.
8. It is in respect of that decision that the Applicant brings his application for an extension of time to commence a judicial review application.
9. On or about 1 December 2022, the Applicant received notice of the grant of the visa to him (Ex A2, [4]). The Applicant queried with his migration agent why the visa was for two years, not three years. The migration agent told him that two years was standard (Ex A2, [5]). The Applicant was sufficiently concerned that he telephoned the immigration department and was told that the decision regarding the duration of his visa was final and could be changed "under no circumstances" (Ex A2, [5]).
10. The Applicant apparently then took no further action until about 18 months later in August 2024.
11. By August 2024, the Applicant was nearing the expiry date of his visa. In that context, naturally enough, the Applicant turned his mind to his visa status. The Applicant deposed that he (Ex A2, [6]):

did not become aware of the critical error made by the agency until August 2024 specifically 15th of August 2024, almost 1.8 years after the visa had been approved.

1. In August 2024, he consulted with migration agents, other than the agent who had assisted him to lodge his application in September 2022, for guidance on pathways to extend his stay in Australia. It was during these consultations in August 2024 that the Applicant first understood the ramifications for him remain in Australia which flowed from his application for a visa in the Graduate Work Stream and not in the Post-Study Work Stream.

1. It is in the context of those facts that I must consider whether to extend time for the commencement of a judicial review application.
2. Under s. 477(2) of Act, I will grant an extension of time if I consider "that it is necessary in the interests of the administration of justice". I may extend time if it is "needed" - not just desirable - in the interests of justice. As the plurality in the High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] 276 CLR 579; [2022] HCA 28 at [12] noted: "there are no mandatory considerations". In Tu'uta Katoa, the plurality held:

So framed, the paragraph allows the Court to look at a myriad of facts and circumstances including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties, and the merits of the underlying application. The level of satisfaction for the Court to reach is not low. The Court must that an extension of time is desirable but that it is needed in the interests of the administration of justice.

1. I may, as appropriate, confine my considerations to the merits of the underlying application to an "impressionistic" assessment or consider the merits in greater depth because, as the plurality of the High Court said in Tu'uta Katoa at [19], I may have regard to the merits in "such manner as appropriate in the circumstances".
2. I turn now to the various factors the High Court plurality referred to in Tu'uta Katoa: including the length of the delay, the reasons for the delay, prejudice to the Respondent and the merits of the underlying application in the exercise of the discretion to extend time.

1. The delay is long. The application was lodged 770 days after the visa decision, over two years outside the statutory time limit for seeking review under s. 477 of the Act.
2. In Tu'uta Katoa at [18] a majority of the High Court noted that where a delay is long an applicant may need to show the merits of their case are "strong or even exceptional".

1. The Applicant says that he queried the two year duration of the visa with his migration agent shortly after 1 December 2022. He also had telephone contact with the department.
2. Having been told by his migration agent that a two-year visa was standard and told by the immigration department that the duration of his visa could not be varied under any circumstances, the Applicant apparently took no further steps to investigate his situation, and certainly no steps to question or challenge the visa grant decision, until some 18 months later on 15 August 2024.
3. As noted, around August 2024 he came to understand that he had been granted a Temporary Graduate Visa in the Graduate Work Stream and not the Post-Study Work Stream and the significance of that fact.
4. Between August 2024 and 9 January 2025, when he lodged his initiating application, he submitted that he made various inquiries including of lawyers as to his options.
5. A satisfactory explanation for delay is not a precondition to the granting of an extension. The Applicant's close examination of his circumstances was only occasioned by his realisation that his visa was nearing expiry. Initially, after the grant of his visa on 1 December 2022 and his queries in December 2022 both of his migration agent and the Department of Immigration, he took no active step to challenge the decision to grant him a visa. He has provided no satisfactory explanation for delay in commencing his judicial review application.

1. The Respondent points to no prejudice to him which would be occasioned by an extension of time. The absence of prejudice is not of itself sufficient to warrant an extension of time (Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344; [1984] FCA 176, [21]).

1. In his oral submissions, the Minister concentrated on what he submitted was an absence of merit in the underlying application as the fundamental reason I ought not to extend time. I now turn to consider the merits of the four grounds the Applicant identifies as constituting jurisdictional error in his substantive application (Ex A1).

Ground 1 - Did the delegate exceed jurisdiction or mistake the law in granting a visa for which the Applicant was not eligible?

Incorrect Visa Stream Decision - The Department of Home Affairs granted a temporary residency visa (subclass 485) under the incorrect stream. The visa application with wrong stream was completed by the migration agency .... This suggests immigration department failed to properly assess the application.

1. The Applicant submitted his "profile" as a post-graduate student ought to have made it apparent to the delegate that he ought to be granted a visa in the Post-Study Work Stream and not the Graduate Work Stream.

1. The scheme under the Act and the Regulations relevantly creates "classes" of visas, "subclasses" within those classes and "streams" of visas within those subclasses as follows.
2. Section 31 of the Act provides that "there are to be prescribed classes of visas".
3. Under reg. 2.01 of the Migration Regulations 1994 (Cth), the prescribed classes of visas include "such classes... as are set out in the respective items in Schedule 1".
4. Schedule 1, Part 2 concerns temporary visas. Schedule 1, item 1229 creates a "class" of Skilled (Provisional) (Class VC) visa.
5. Regulation 2.02 introduces "subclasses" of visa. Subclass 485 is the "Temporary Graduate" visa subclass. The Temporary Graduate visa (subclass 485) is the only subclass within the Skilled (Provisional) (Class VC) visa class.
6. Regulation 2.03(1A) introduces the concept of "streams".
7. Within the Temporary Graduate Subclass there are two streams with different criteria which govern the grant of a visa. There are criteria for the "Graduate Work Stream" (Sch 2., cl. 485.221-cl. 485.224) and criteria for the "Post-Study Work Stream" (Sch 2, cl. 485.231-485.235).
8. Under s. 46 of the Act, a visa application had to be "valid". Relevantly in this case, item 1229(1) of Schedule 1 to the Regulations provided for an approved form to apply for a Temporary Graduate Visa. If an application was made in accordance with the approved form the visa application was valid.
9. At the relevant time, items 1229(3)(j), (k) and (ka) of Sch. 1 (which required a visa applicant to "nominate only one stream" as to a Temporary Graduate Visa) were 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.

(k) An applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 (Temporary Graduate) visa in the Graduate Work stream must nominate a skilled occupation for the applicant that is specified by the Minister in an instrument in writing for this paragraph.

(ka) Paragraph (k) does not apply if the application is made in the period starting on 1 July 2022 and ending on:

(i) if, before 1 July 2023, the Minister specifies a day on or after 1 July 2023 in a legislative instrument made for the purposes of this subparagraph under subregulation 2.07(5) - the day specified; or

1. The Applicant's application made on 13 September 2022 for a "485 - Temporary Graduate Visa - Graduate Work Stream" was in evidence before me. The application included the following:

Application context

Select the visa for which the applicant intends to apply

Visa type: 485 - Temporary Graduate Visa - Graduate Work Stream

[Emphasis added]

1. As noted, under item 1229(3)(j) in a valid application the Applicant had to nominate "only one stream". He did so by nominating the Graduate Work Stream. In his application on 13 September 2022, he did not nominate the Post-Study Work Stream.
2. The Applicant attached forensic significance to the fact that he did not nominate a skilled occupation in accordance with item 1229(3)(k) in support of a submission that the immigration department failed properly to assess his application. In short, he wished to rely upon the requirement of item 1229(3)(k) to contend that he did not satisfy the criteria for the grant of a visa in the Graduate Work Stream because he had not nominated a skilled occupation. I do not accept this contention because items 1229(3)(k) and (ka) need to be read together. It is true that item 1229(3)(k) provided that an applicant in the Graduate Work Stream "must nominate a skilled occupation". Critically, however, because the Applicant lodged his application in a particular date range - between 1 July 2022 and 1 July 2023 - cl. 1229(3)(ka) exempted him from the obligation to nominate a skilled occupation under item 1229(3)(k) which would otherwise have applied.
3. By reference to the facts set out above and in particular the effect of cl. 1229(3)(ka), by his application made on 13 September 2022, the Applicant met the criteria for the grant of the visa in the Graduate Work Stream of the Temporary Graduate Visa subclass, being the visa for which the Applicant applied.
4. Once satisfied that the Applicant met the criteria for the grant of a visa, the delegate granted the visa under s. 65. The Applicant's criticism of the Department's assessment of his application is misplaced.
5. Item 1229(3)(ka) was introduced into the regulations by the Migration Amendment (Occupation Nomination and Skills Assessment for Subclass 485 Visas) Regulations 2022 and operated to relax the criteria and particularly the requirement to nominate a skilled occupation which had previously been a criterion for the grant of a Temporary Graduate Visa in the Graduate Work Stream. Given the textual clarity and field of operation of item 1229(3)(ka), it is not necessary further to explore any underlying purpose for the introduction of item 1229(3)(ka) into the regulations.
6. The delegate did not make a jurisdictional error either by exceeding jurisdiction or mistaking the law in granting the Applicant a visa in the Graduate Work Stream of the Temporary Graduate visa subclass for which he had applied.
7. Analysed in this way, Ground 1 lacks sufficient merit to extend time.

A legally unreasonable decision? A duty to make inquiries?

1. The Applicant submitted that his "profile" - as a postgraduate student who held a master's degree in business administration marketing - was better suited to a Temporary Graduate Visa in the Post-Study Work Stream.
2. Interpreting Ground 1 in the most beneficial way available to the Applicant, it might be characterised as an argument that the delegate's decision was legally unreasonable.
3. The Minister made submissions to me on the issue of whether the delegate had a duty to make inquiries as to whether the Applicant had made an application in the intended stream before making the decision.
4. Any duty to make inquiries of the kind discussed in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 at [24]-[25] does not apply to the facts of this case. A decision cannot be characterised as legally unreasonable because of a failure to make inquiries or for any other reason in circumstances in which the delegate granted the very visa for which the Applicant applied. There was no duty on the decision-maker to provide the Applicant with advice.
5. Further, relevantly to an argument as to whether there was a duty on the delegate to make inquiries about whether the Applicant had applied for a visa in the intended stream, it follows from the fact that the Applicant was told that the decision to grant him a visa and its duration was final that his communications with the immigration department occurred after the grant of the visa.

The delegate only had the power to grant the visa in the stream the applicant applied for

1. I also accept the Minister's submissions that the delegate only had the power to grant the visa in the stream the applicant applied for. In Obinwa v Minister for Immigration, Citizenship & Multicultural Affairs [2024] FCAFC 63; 302 FCR 529 - which contains a detailed explanation of classes, subclasses and streams of visas in the context of the legislation - the Full Court said at [50], [52]:

The consequence is that an applicant for a Class VC visa who nominates a particular stream (as every applicant must, in order to make a valid application) must satisfy the criteria applicable to that stream in order for the visa to be granted. Satisfying criteria that are applicable only to another stream does not assist.

We accept that this outcome is in some respects unsatisfactory. It means that, by making what was apparently an innocent mistake in filling in an online form, the appellant made a visa application that was doomed to fail, wasted his application fee and became subject to the restriction on further visa applications in s 48 of the Act. It would probably have been a relatively simple matter to design the form so that it would raise an alert when somebody who nominated the Graduate Work stream answered "no" to the question whether they had applied for a relevant skills assessment. The appellant is entitled to feel aggrieved in that respect. However, in our view, the construction of the Regulations is clear. The provisions are designed to ensure that a decision maker need only consider an application against an identified set of criteria and does not need to range across other possible routes to the grant of a visa. The unfortunate consequences that arise in individual cases are not properly addressed by giving the provisions of a strained construction that does not accord with their clear intention.

1. I do not accept the Applicant's attempt to distinguish Obinwa on the basis that it concerned a decision where the visa was refused, not granted. The reasoning applies with equal force in this case: "a decision maker need only consider an application against an identified set of criteria and does not need to range across other possible routes to the grant of a visa" (Obinwa, [52], above).
2. However it is analysed, Ground 1 lacks sufficient merit to extend time.

Ground 2 - Did the delegate fail to inform the Applicant of an error?

Failure to Inform of Error When Inquired - When the Applicant contacted the Department shortly after the visa grant to clarify their situation, the Department failed to acknowledge the incorrect visa stream and instead provided misleading advice, claiming no further action could be taken. This denied procedural fairness to the Plaintiff.

[Emphasis added]

1. I accept the Minister's characterisation of this ground as a procedural fairness ground. In essence, the Applicant submits that the delegate - as a matter of procedural fairness - after the visa was granted had to notify him that his application was in the incorrect stream.
2. The delegate's statutory procedural fairness obligations, in this context are contained in Part 2, Division 3, Subdivision AB of the Act. Relevantly, under s. 57 the Minister must give to the applicant information that the Minister considers:

57 Certain information must be given to applicant

(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or part of the reason:

1. Because the visa was not refused, no procedural fairness obligation to give information to the Applicant arose under s. 57.
2. Further, as the Minister submitted, procedural fairness requires disclosure of adverse material, not guidance or advice. It "remains for the claimant to present evidence and advance arguments adequate to enable the decision-maker to make a decision favourable to the claimant" (Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220, [2016] FCAFC 52, [69]-[70]). Any procedural fairness obligation did not extend to advising or guiding the Applicant as to whether he had applied for a visa in the intended stream which he considered best suited to his desired outcome.
3. Ground 2 lacks sufficient merit to extend time.

Ground 3- Did the delegate make a subsequent admission of error?

Subsequent Admission of Error - When the applicant later contacted the immigration department after discovering the error, the applicant was told by the department representative that the visa was filed under the wrong stream and should have been rejected initially. This further underscores a jurisdictional error in the assessment and grant of the visa.

1. Under s. 67(4) of the Act, the Minister has no power to vary a decision to grant the visa (or refuse a visa) once made.
2. The Applicant deposed that on 15 August 2024 in a conversation with an unnamed person at the Department he was told the visa application should not have been granted in the first place. He deposed as follows (Ex A2, [6]):

To seek further clarity, the applicant reached out to the Department of Home Affairs on 131881 and was told that the visa application should not have been granted in the first place and that it should have been rejected initially, thus providing evidence of negligence from the department of immigration as well.

1. In circumstances in which the person to whom the Applicant spoke is unnamed and the words that person said are reported only at a general level, I can give that evidence no real weight.
2. Without finding that the Applicant has proved departmental negligence, I note that I am concerned with whether a decision was affected by jurisdictional error, a proposition which is evaluated by asking whether a decision was made in accordance with statutory authority, and not by answering a question of whether there was "negligence."
3. In any event, whatever was said in or about August 2024, more than 18 months after the grant of the visa on 1 December 2022, can play no part in assessing whether that decision contained an error when it was made. As a Full Court observed in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12:

the question is whether the decision was made in accordance with the authority conferred by the statute.... The question is not answered by reference to circumstances which did not exist at the time of the decision.

1. Ground 3 lacks sufficient merit to extend time.

Ground 4 - is there any jurisdictional error because the Minister did not intervene

1. Ground 4 (a handwritten addendum to the initiating application) is as follows:

1. The Applicant deposed that in December 2024 - the month before he commenced his application in this Court - he made three requests for ministerial intervention (Ex A2, [8]).
2. On 8 January 2025 the Applicant received correspondence noting the Minister had no power to intervene under s. 351 of the Act. The correspondence included the following:

The Minister has no power to intervene in this matter

Section 351 of the Migration Act 1958 (the Act) provides the Minister with the power to substitute a decision of the Administrative Review Tribunal (the Tribunal) with a more favourable decision if the Minister thinks it is in the public interest to do

The Minister's personal non-compellable power is only available if the Tribunal has made a decision under sections 349 or 368C of the Act, or 105 of the Administrative Review Tribunal Act 2024. The Tribunal has not made a decision under this section in your case.

351 Minister may substitute more favourable decision

(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision

1. It is apparent from the terms of s. 351(1) that the power of ministerial intervention is to substitute a more favourable decision for a Tribunal decision. In the circumstances of this case there was no Tribunal decision - there was only a delegate's decision - which engaged the terms of s. 351. In the absence of any Tribunal decision for which a more favourable Tribunal decision might be substituted, it is not necessary further to consider the personal and non-compellable nature of the Minister's power under s. 351.
2. Ground 4 lacks sufficient merit to extend time.

1. For completeness, I note that there was passing reference in submissions before me to the Department's Policy Advice Manual PAM-3 - Subclass 485 (Temporary Graduate) Visa (PAM).
2. I accept the Minister's submission that the PAM is properly characterised as procedural and policy guidance to officers applying the provisions of the Act and Regulations. So characterised, its terms do not contain mandatory relevant considerations such that any failure to consider them gives rise to a jurisdictional error (El Ess v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 43, [2004] FCA 1038, [45]). It is not necessary on the facts in this case to go further and consider circumstances in which a decision-maker purports to consider the terms of a procedural and policy document but then misconstrues or misapplies those terms.

1. Because the delay is more than two years, there is no satisfactory explanation for the delay and each of the four proposed grounds of review lack sufficient merit to extend time it is not necessary in the interests of justice to extend the time for the bringing of the judicial review application.
2. I will dismiss the application for an extension of time.

1. The Applicant submitted that a costs order would occasion to him some hardship. Costs should nonetheless follow the event.
2. I accept the Minister's submission that the appropriate exercise of my costs discretion is to order that the Applicant pay the Minister's costs fixed in the scale amount of $4,189.38.

I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.