Alam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 394
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Alam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 394
File number(s): SYG 1502 of 2018 Judgment of: JUDGE LAING Date of judgment: 16 May 2022 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant a Skilled (Provisional) (Class VC, Subclass 485) visa – applicant unable to meet cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) – whether the Tribunal denied the applicant procedural fairness or natural justice and committed jurisdictional error – issues with online application form - futility – application dismissed. Legislation: Federal Circuit Court Rules 2001 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Migration Act 1958 (Cth) ss 357A, 360
Migration Regulations 1994 (Cth) Schedule 2; cl 485.213
Cases cited: Annam v Minister for Home Affairs [2019] FCA 237
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 16 May 2022 Place: Sydney Solicitor for the Applicant The Applicant appeared in person Solicitor for the First Respondent Mr Kovacs, Clayton Utz ORDERS
SYG 1502 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ERFANUL ALAM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMNISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
16 MAY 2022
THE COURT ORDERS THAT:
1.The first respondent's name be changed to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs."
2.The application filed on 30 May 2018 be dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $7,328.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Skilled (Provisional) (Class VC, Subclass 485) visa.
BACKGROUND
The applicant applied for the visa on 10 August 2017. In his application for the visa, the applicant answered “No” in relation to the following question:
Have you and all persons included in this application who are 16 years of age or over, applied in the last 12 months to the Australian Federal Police for a check of criminal records?
Text above this and other questions on the application form noted:
To be eligible to be granted a subclass 485 visa through the Post-study 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 to be granted a visa.
A Police Clearance Certificate from the Government of the People’s Republic of Bangladesh was provided with the application. However, evidence of an application for an Australian Federal Police check made in the 12 months before the visa application was not provided.
The applicant subsequently provided to the Department of Immigration and Border Protection (as it was) a receipt dated 14 August 2017 for an Australian Federal Police check.
On 7 September 2017, the Delegate refused the visa application. The Delegate found that the applicant was unable to meet cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) because the evidence he had provided indicated that he had not applied for an Australian Federal Police check during the 12 months immediately before the day the visa application was made.
The applicant applied to the Tribunal for review of the Delegate’s decision on 20 September 2017. He attended a hearing before the Tribunal on 9 May 2018.
On 11 May 2018, the Tribunal affirmed the Delegate’s decision.
RELEVANT PROVISION
At the relevant time, cl 485.213 provided:
485.213
When the application was made, it was accompanied by evidence that:
(a) the applicant; and
(b) each person included in the application who is at least 16;
had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.
THE TRIBUNAL’S DECISION
The Tribunal summarised the background to the matter and set out the relevant provision in issue (at [1]-[7]). It found that the Australian Federal Police check arranged after the visa application had been lodged was not capable of meeting cl 485.213 (at [8]). The Tribunal observed that it had explained the requirements of the provision to the applicant at the hearing and the “applicant indicated he understood and he had nothing further to add” (at [11]).
The Tribunal had regard to submissions by the applicant’s representative raising concerns about the acceptance of the visa application for lodgement even though the applicant had acknowledged that he had not applied for the Australian Federal Police check. In relation to this, the Tribunal stated (at [12]):
The Tribunal has taken into account all of the evidence provided by the applicant and the representative’s written submissions. It notes when making the visa application, the applicant acknowledged that he had not applied for an AFP check during the 12 months before lodging the visa application. It understands why the applicant may be frustrated by the process because the online visa application system has allowed his application to be lodged despite his acknowledgement that he had not applied to the AFP for the check. It accepts that the applicant now has an AFP National Police Certificate - Complete Disclosure. However this is not evidence that the applicant has complied with cl.485.213.
Having regard to the evidence before it, the Tribunal was not satisfied that when the visa application was made, it was accompanied by evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made. The Tribunal therefore found that the applicant did not meet cl 485.213 and affirmed the Delegate’s decision (at [13]-[16]).
PROCEEDINGS BEFORE THIS COURT
An application for judicial review was filed by the applicant on 30 May 2018 containing the following grounds:
(1) The Tribunal decision was affected by erred of law, procedural fairness and jurisdictional error in relation to exercise its discretion to grant of a sub class 485 visa.
Particulars:
Discretion has the meaning of acting on one's own authority and judgement. In law, discretion as to legal rulings, such as whether evidence is excluded, may be exercised by a judge or tribunal member at all levels of law enforcement, which was denied in this matter.
(2) The Tribunal made erred law and denial of natural justice in relation to consider Australian Federal Police (APP) check during 12 months at the time of decision made by the tribunal.
(3) The tribunal failed to consider procedural fairness in lodging online visa application form to grant of a sub class 485 visa to the applicant.
Particulars:
The applicant lodged a sub class 485 visa by online [immigration visa portal], where applicant clearly mentioned that he did not apply for AFP check prior to visa lodgement. The application should not continue because it was a basic requirement for the lodgement of visa and should show error proceeding visa application further because it was online application. The online system does not warn applicant for lodgement of an application for sub class 485 visa and therefore online visa application lodgement system was not correct and the tribunal made error to consider or make a comment on that point and made jurisdictional error, error of law and procedural fairness to the applicant, which amounts to Denial of Natural Justice.
At the hearing of this matter, the applicant appeared in person. It was confirmed that he had received a copy of the Minister’s written submissions and that he was in possession of the Court Book and other relevant documents. The scope and limitations of the Court’s powers in contrast to those of the Tribunal were explained to the applicant.
The applicant’s oral submissions at the hearing were consistent with the pleaded grounds. He again referred to the fact that his application had been accepted despite his acknowledgement that he did not have the requisite police check. He asked that the Court review his application and see what it could do.
Grounds 1 and 2
Grounds 1 and 2 allege that the Tribunal made errors of law, denied the applicant procedural fairness or natural justice and committed jurisdictional error. The grounds are largely unparticularised, although ground 1 suggests that the Tribunal ought to have applied some form of discretion and ground 2 suggests that the Tribunal should have considered the Australian Federal Police check that he had undertaken in the 12 months prior to its decision.
However, as was found by the Tribunal, it had no discretion to waive or ameliorate the effect of cl 485.213. The criterion is a mandatory one. It was required to be assessed by reference to the period “12 months immediately before the day the application [was] made”: see Annam v Minister for Home Affairs [2019] FCA 237 at [4] and [13]-[16].
On the face of the materials, there does not appear to be any substance to the assertion that the Tribunal made errors of law or denied the applicant procedural fairness (or natural justice). The Tribunal’s natural justice obligations were limited by s 357A of the Migration Act 1958 (Cth) (the Act). The applicant was invited to attend a hearing pursuant to s 360 of the Act. It is apparent that he was given a meaningful hearing before the Tribunal, in which the Tribunal considered the material before it and explained the requirements of cl 485.213. In response to this, the applicant indicated that he “understood and he had nothing further to add”: see [11] of the Tribunal’s decision.
No relevant error has been demonstrated by either ground 1 or ground 2 of the application.
Ground 3
Ground 3 submits that the Tribunal ought to have considered and “comment[ed]” on the applicant’s contention that the online application system ought not to have accepted his application for a visa, or ought to have warned him that it was unable to succeed, in circumstances where he had disclosed that he had not applied for an Australian Federal Police check.
The ground does not go any further towards demonstrating jurisdictional error than grounds 1 or 2. Whilst the applicant may not agree with the acceptance of his visa application for processing, this does not identify relevant error on the part of the Tribunal.
The Tribunal considered the applicant’s submissions on this issue. It expressed that it understood his frustration that the online application process allowed his application to be lodged despite his acknowledgment that he had not applied for the relevant Australian Federal Police check (at [12]). However, it found that the applicant was unable to meet cl 485.213, which was a mandatory criterion for the visa (at [12]-[14]). The applicant has not demonstrated any relevant error in the approach taken by the Tribunal.
Further, as the Minister has submitted, the application form did provide some warning that inability to meet the “requirements” of the Australian Federal Police check may result in the applicant not being “able… to be granted a visa” (see [3] above).
Ground 3 is unable to succeed on the material that is before the Court.
Futility
Even if some error in the procedure or decision of the Tribunal was able to be ascertained, it would be futile to grant the relief sought by the applicant.
This is because cl 485.213 of Schedule 2 to the Regulations imposes a mandatory requirement which, on the objective evidence, the applicant is unable to meet. The applicant does not contend that his visa application was accompanied by evidence that he had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made.
If the matter was remitted to the Tribunal, it would have no option other than to affirm the decision under review. Relief would not be granted in these circumstances: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 at [27]-[29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
CONCLUSION
For these reasons the application will be dismissed.
The Minister seeks costs fixed in the amount of $7,328, which the Court was informed was the applicable amount according to the scale in place under the former Federal Circuit Court Rules 2001 (Cth) at the time the application was made to this Court. That amount is lower than that which is provided under the current scale contained within the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Having regard to the scale and the work in this matter, I accept that the amount sought is reasonable.
30 I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate:
Dated: 26 May 2022
0
2
0