Ahmed v Minister for Immigration and Anor
[2020] FCCA 622
•18 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHMED v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 622 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Temporary Graduate (Class VC) (subclass 485) visa – whether the Tribunal’s inclusion of the word ‘and’ between subclauses (1) and (2) of clause 485.215 of Schedule 2 of the Regulations resulted in jurisdictional error – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.55 |
| Cases cited: Anand v Minister for Immigration and Citizenship [2013] FCA 1050 |
| Applicant: | SYED SIDDIQ AHMED |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3524 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 18 March 2020 |
| Date of Last Submission: | 18 March 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 18 March 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Anang, Christopher Levingston & Associates |
| Solicitors for the Respondents: | Ms Strugnell, Minter Ellison |
ORDERS
The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5600.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 3524 of 2018
| SYED SIDDIQ AHMED |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(Revised from Transcript)
The applicant is a citizen of India. On 14 February 2017, he applied for a Temporary Graduate (Class VC) (subclass 485) visa.
A question on the visa application form stated:
Do you and all applicants included in this application hold health insurance?
The applicant answered ‘no’ to that question. On 18 April 2017, the Department wrote to the applicant requesting he provide further information. Amongst the information requested, the Department requested that the applicant provide evidence that he had held adequate health insurance arrangements from the time of the lodgement of his application and that these arrangements were still in place. The applicant did not respond to this request for information.
On 25 May 2017, a delegate of the Minister refused to grant the applicant a temporary graduate visa on the basis that the applicant did not meet clause 485.215 of Schedule 2 to the Migration Regulations1994 (Cth) (“the Regulations”). This provision is as follows:
(1) When the application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.
(2) The applicant has had adequate arrangements in Australia for health insurance since the time the application was made.
On 8 June 2017, the applicant sought a review of the delegate’s decision before the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 29 November 2018, the Tribunal affirmed the decision not to grant the applicant his visa. The applicant now seeks judicial review of the Tribunal’s decision.
The Administrative Appeals Tribunal Decision
After setting out the background, at paragraph 7, the following appears verbatim:
The issue in the present case is whether the applicant meets clause 485.215 which provides as follows:
485.215
(1) When the application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance: and
(2) The applicant has had adequate arrangements in Australia for health insurance since the time the application was made.
At paragraph 8, the Tribunal noted the applicant’s response to the question, regarding his holding of health insurance in his original application, was “no”. At paragraph 12, the Tribunal said the following:
On 31 August 2018, the applicant provided the Tribunal with copies of his membership card with NIB [a health insurance firm] and a letter from BUPA, showing the start date for essential visitors health cover of 31 March 2017 and a transfer certificate issued on 2 June 2017 showing the applicant had OSHC coverage from 20 October 2014 to 30 March 2017.
A written submission was made by the applicant’s representative to the Tribunal, arguing the validity of clause 485.215(1) of the Regulations in regard to s 55 of the Migration Act 1958 (Cth) (“the Act”) on the basis that further information may be given:
Until the Minister has made a decision whether to grant or refuse to grant the visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
At paragraph 15, the Tribunal accepted the applicant had now provided evidence of holding adequate health insurance arrangements which were valid at the time the application was lodged with the Department.
At paragraph 18, the Tribunal noted the applicant lodged his application to the Department on 14 February 2017. On 25 May 2017, an authorised delegated decision maker made the decision on the basis of the information before them. It was noted that the Department’s records indicated the applicant did not provide or attempt to provide evidence to the Department at the time the delegate made the decision as to the applicant’s health insurance status. In fact, the applicant did not provide evidence of holding adequate health insurance until approximately 18 months later.
At paragraph 19, the Tribunal considered the case of Anand v Minister for Immigration and Citizenship [2013] FCA 1050 (“Anand”), in which Katzmann J considered an identically worded clause, being clause 487.216. Her Honour said at [27] – [28]:
[27] It seems to me that the intention of the regulations is to ensure that the application is not processed unless it meets certain criteria. That is why relevant evidence is to accompany the application…
[28] Evidence supplied around the time of the application may be sufficient… It might even extend beyond (a day or two). Where, for example, an applicant indicated in his application or a document submitted with it that he would forwarded evidence within a week, and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged...
At paragraph 21, the Tribunal also had regard to the more recent case of Nguyen v Minister for Immigration & Anor [2016] FCCA 1523 (“Nguyen”), in which Burchardt J held that the words “accompanied by” in the context of a subclass 485 visa application are “imperative” and suggested there must be “a very close temporal connection” between the time the application is lodged and where the evidence which must accompany that application must be provided. In that case, his Honour held that a 29-day gap was too great to meet the temporal requirement.
At paragraph 23, the Tribunal was not persuaded in the case under consideration, that there was a close temporal connection between the visa application and the provision of the relevant evidence, given that a period of approximately 18 months had elapsed.
Accordingly, the Tribunal found the applicant did not satisfy the criteria for the grant of a subclass 485 visa and it affirmed the decision of the delegate.
Grounds of Application
At the time of the lodgement of the original application, two grounds were relied upon. One ground has since been abandoned, leaving the sole ground as follows:
The Tribunal’s decision is infected by an error in law.
Particulars
(a) At the time of the application for the visa, on 14 February 2017 and the Tribunal’s decision on 29 November 2018, clause 485.215 of Schedule 2 to the Migration Regulations 1994 provided as follows:
(1) When the application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.
(2) The applicant has adequate arrangements in Australia for health insurance since the time the application was made.
(b) At paragraph 7 of its decision record, the Tribunal states that clause 485.215 to schedule 2 to the Regulations provide as follows:
(1) When the application was made, it was accompanied by evidence that the applicant had adequate health arrangements in Australia for health insurance; and (emphasis added)
(2) The applicant has had adequate arrangements for health insurance since the time the application was made.
(c) Evidently, by inserting the word “and” the Tribunal imported the requirement for the applicant to satisfy both clause 485.215 (1) and clause 485.215(2).
(d) The Tribunal’s importation of the word “and” into clause 485.215 is an error in law.
The Applicant’s Submissions
Contrary to the Tribunal’s statement at paragraph 7 of its decision record, the word “and” was not included in the wording of clause 485.215 of the Regulations at the time of the visa application nor at the time of the Tribunal’s decision.
The applicant submits that the Tribunal’s use of the word “and” imports a requirement for the application to satisfy the requirements of clause 485.215(1) and (2) of the Regulations in order to meet the requirements of this section under the law.
The applicant concedes at the time of the visa application and the Tribunal’s decision, the applicant did not satisfy the requirements of clause 485.215(1) of the Regulations because when the application was made, it was not accompanied by evidence that the applicant had adequate health cover in Australia.
The applicant submits, however, that at the time the application for the visa and the Tribunal’s decision, he satisfied the requirements of clause 485.215(2) of the Regulations as there were documents before the Tribunal that demonstrated that the applicant had had adequate health cover arrangements since the time the application was made. The Tribunal, in fact, accepted that position at paragraph 16.
The applicant submits that at the time of the application for the visa and the Tribunal’s decision, there was nothing in the wording of 485.215 of the Regulations that stipulated satisfaction of both subsections (1) and (2) in order for the requirements of the clause to be met. This is supported by the fact that the delegate, in a letter dated 21 April 2017, requested the applicant provide “evidence that he held adequate health insurance arrangements from the time of lodgement of the visa application and that those arrangements are still in place”. That letter was sent to the applicant more than two months after the application for the original visa was made.
The applicant submits that had the applicant responded to the letter on 21 April 2017 and provided evidence demonstrating that the relevant health insurance was available within the stipulated timeframe, in line with the judgments of Anand and Nguyen, given the time lapse between the date of the application and the date of the letter, the applicant would not have been able to satisfy the temporal requirement identified in the above two cases. Evidently, in the proceedings, there is arguably some ambiguity between the Tribunal and the delegate as to whether both subparagraphs in clause 485.215 of the Regulations are required to be satisfied in order to meet the requirements of the entire clause.
The applicant submits there is nothing in the wording of clause 485.215 of the Regulations that supports a contention or a conclusion that both paragraphs must be satisfied in order for the requirements of the entire clause to be met. Consequently, it was submitted that the Tribunal erred when it imported the word “and” into 485.215 of the Regulations and that error led to the Tribunal incorrectly interpreting the regulation.
The First Respondent’s Submissions
The first respondent concedes, in reproducing clause 485.215 in its decision, the Tribunal inserted the word “and” between subclauses 485.215(1) and (2) of the Regulations. The real issue is, however, whether the Tribunal erred in its interpretation of clause 485.215 of the Regulations as requiring the applicant to satisfy both subclauses (1) and (2). The first respondent submits that both of the two separate subclauses of 485.215 of the Regulations must be satisfied to meet that clause. Each of the subclauses is directed to different periods of time, the first being at the time the application for a visa is made and the second is a criterion that applies throughout the period following the visa application up until a decision is made.
The first respondent notes that the Tribunal’s approach in finding that both provisions must be met is supported by the explanatory statement to the Migration Legislation Amendment Regulation 2013 (No 1) (SLI No 33 2013) which introduced the provision. The relevant part of the explanatory statement states as follows:
This item inserts a new clause 485.215 which provides that:
· When the application was made, it was accompanied by evidence that the applicant has adequate arrangements in Australia for health insurance; and (emphasis added)
· The applicant has had adequate arrangements in Australia for health insurance since the time the application was made.
This clause requires applicants to have adequate arrangements for health insurance in Australia at the time they apply for a visa and to maintain adequate arrangements until the time the visa application is decided.
The purpose of this amendment is to ensure that applicants for a Subclass 485 visa had adequate health arrangements in Australia while their visa application is being decided. Non-citizens who hold such arrangements represent less of a cost to the Australian health system if they access services that are covered by health insurance arrangements.
This amendment is complemented by the requirement in clause 485.611, which provides that condition 8501 is attached to the visa. Condition 8501 provides the holder of the visa must maintain adequate arrangements for health insurance whilst the holder is in Australia.
The first respondent submits that, having regard to the fact that the two subclauses are directed at different points in time and noting the content of the explanatory statement to the Amendment Regulation, there is no basis to read subclause 485.215 as inserting the word “or” between subclauses (1) and (2). The first respondent submits that such an approach would be inconsistent with the fact that the two subclauses are directed to different points of time.
Consideration
In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at page 604, the Full Federal Court consisting of French, Sackville and Hely JJ, stated as follows:
46The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications … its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
It is properly conceded by the first respondent that the recitation of clause 485.215 of the Regulations at paragraph 7 of the Tribunal’s reasons, incorrectly inserts the word “and” between subclauses (1) and (2). The fact that the word was wrongly inserted of itself, in my view, is neither here nor there. The relevant question is whether or not the insertion of the word caused an error of law in the decision of the Tribunal.
I am satisfied that the decision of the delegate to refuse the visa was correct based on the fact that the applicant, firstly, indicated he did not have health insurance, although this was incorrect as it subsequently turned out, and then failed to respond to a letter from the Department requesting further information regarding his health insurance status.
The Tribunal noted the non-provision of the information to the delegate. It noted that information had now been provided to it some 18 months after the decision of the delegate which indicated that the applicant, at all relevant times, did, in fact, hold health insurance.
The Tribunal relied upon the decision of Katzmann J in Anand to find there was a temporal connection between the provision of the evidence of adequate health insurance and the initial application. At paragraph 21 the Tribunal noted Burchardt J, in Nguyen, held that the words “accompanied” in the context of a Subclass 485 visa, were imperative and that a 29 day gap is too great to meet the temporal requirement. Whilst Nguyen involved clause 485.223 of the Regulations and not clause 485.215 of the Regulations, I am satisfied that the reasoning is sound and that as a matter of comity, I should follow that decision unless I am satisfied it is plainly wrong.
I am not satisfied it is plainly wrong. Even if I am wrong in this regard and that Anand and Nguyen are not good law, I adopt the first respondent’s submissions that I have detailed above as to the explanatory statement to the amendments which brought the regulations into effect and indicate the approach adopted by the Tribunal is correct.
While the addition of the word “and” in a recitation of the relevant regulation is unfortunate, and I consider it to be a typo rather than being a matter of some import, I do not consider it has resulted in an error of law such that the decision of the Tribunal should be quashed for jurisdictional error and remitted back to the Tribunal for further consideration.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 14 April 2020
6
3
3