Anguralia v Minister for Immigration
[2014] FCCA 2027
•10 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANGURALIA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2027 |
| Catchwords: MIGRATION – Application seeking review of decision of Migration Review Tribunal refusing to grant applicant a Skilled (Residence) (Class VB) visa (Subclass 885 visa) – Failure to satisfy requirements of cl.885.214 of Schedule to the Migration Regulations 1994 (Cth) – No reviewable error in decision of Tribunal – Application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.368, 368A, 379A, 379G Migration Regulations 1994 (Cth), Sch.2 cl.885.214 |
| Anand v Minister for Immigration and Citizenship (2013) 136 ALD 633 |
| Applicant: | PANKAJ KUMAR ANGURALIA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1813 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 8 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Punjabi interpreter. |
| Solicitor for the First Respondent: | Mr D. McLaren of Sparke Helmore |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The application filed on 2 August 2013 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1813 of 2013
| PANKAJ KUMAR ANGURALIA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Migration Review Tribunal (the “Tribunal”), being MRT Case Number 1213193, a decision of Tribunal Member K. Raif dated 8 July 2013, affirming the decision of a delegate of the Minister for Immigration and Border Protection (at the time of the decision the Minister for Immigration, Multicultural Affairs and Citizenship) (the “Minister”) to refuse to grant the applicant a Skilled (Residence) (Class VB) visa.
The solicitors for the first respondent, the Minister, filed a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing pursuant to orders of the Court made on 19 August 2013. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.
By orders made by the Court on 19 August 2013, the applicant was granted leave to file and serve an amended application or any additional affidavits upon which he wished to rely. The applicant was also granted leave to file and serve an outline of written submissions fourteen days before the hearing. The applicant filed written submissions on 24 April 2014.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicant is a citizen of India who arrived in Australia in 2006. On 16 June 2009, he applied to the Department of Immigration (the “Department”) for a Skilled (Residence) (Class VB, Subclass 885) visa (CB 1-14).
On 29 March 2010 the Department wrote to the applicant requesting that he provide within 28 days of receipt of the letter certain documents relevant to the processing of his visa application (CB 18-23). Relevant to the current proceedings, this included a request that the applicant provide a “[r]eceipt for application for AFP [Australian Federal Police] check” (CB 20).
On 19 May 2012 the Department wrote to the applicant again requesting that he provide documents in support of his application (CB 31).
On 29 May 2012 the applicant caused an email to be sent attaching documents relevant to his visa application (CB 32-69). In relation to an Australian Federal Police (“AFP”) check document, the applicant stated in his covering email “… sorry for late reply as I was waiting for my AFP and Medical examination. I will send you AFP as soon as I will get it” (CB 32).
On 2 June 2012 the applicant caused an email to be sent to the Department explaining in relation to his AFP certificate:
AFP at time of application (However I sent my AFP to my Immigration Lawyer in 2009 however he is no longer representing me, so if you want I can chase up with AFP department as I do not have any receipts or AFP from 2009 – my apologies I should have kept a copy.) However I attach current AFP in 2012 as attachment 13 AFP.
(CB 70)
The applicant attached a copy of a National Police Certificate dated 29 May 2012 to the email sent on 2 June 2012 (CB 74).
Delegate’s Decision
On 14 August 2012 a delegate of the Minister refused to grant the applicant a Skilled (Residence) (Class VB, Subclass 885) visa (CB 85-91).
In so refusing, the delegate applied Part 885 of Schedule 2 to the Migration Regulations 1994 (Cth) (the “Migration Regulations”). Part 885 sets out the relevant criteria for a person applying for a Skilled (Residence) (Class VB, Subclass 885) visa. Clause 885.214 of the Migration Regulations (at the time of the visa application) contained a mandatory requirement for the grant of the visa that:
The application is accompanied by evidence that:
a) the applicant; and
b) each person included in the application who is at least 16;
has applied for an Australian Federal Police check during the 12 months immediately before the day when the application is made.
The delegate found that the applicant’s visa application was not “accompanied by evidence” that the applicant had applied for an AFP check during the 12 months immediately before the day on which the application was made. The delegate found that the Department had no evidence of a receipt being provided for an AFP check until he provided a receipt dated 9 May 2012, which was not in the 12 months immediately before the day of his application. As the applicant did not satisfy cl.885.214(a) of Schedule 2 to the Migration Regulations, the delegate refused the applicant’s visa application.
Proceedings before the Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision on 29 August 2012 (CB 92-104).
The applicant provided written submissions dated 5 July 2013 to the Tribunal in support of his application for review (CB 123-125). In those submissions the applicant stated the background of his interactions with the migration agent who acted for him in relation to his original visa application. The applicant stated he was instructed by the agent to complete the relevant forms for an AFP check (CB 124). He submitted he had “done everything that is required to meet the criteria for the above application” and that his migration agent had “failed to deal competently, fairly and diligently in relation to my matter” (CB 124). The applicant contended that, in light of the exceptional circumstances of his case, the Tribunal should grant him the visa sought (CB 125). Attached to these submissions was a copy of an AFP check dated 24 March 2010 (CB 128).
The applicant attended a hearing before the Tribunal on 8 July 2013 (CB 131-132). On the same day, the Tribunal decided to affirm the decision under review (CB 135-139).
In affirming the delegate’s decision, the Tribunal found:
a)That both AFP certificates provided by the applicant post-dated his visa application, and that there was no evidence before it to indicate that the applicant had applied for an AFP check prior to the lodgement of his application (CB 136 at [6]-[7]), CB 137 at [9]). While the Tribunal acknowledged the applicant’s submissions about the conduct of his former migration agent, it found it had no power to waive the relevant legislative requirements (CB 137 at [8]). Accordingly, the Tribunal was not satisfied on the evidence before it that the applicant had applied for an AFP check in the 12 months before the day on which the visa application was made (CB 137 at [10]); and
b)That the visa application was not “accompanied by evidence” that the applicant had applied for an AFP check (CB 137 at [11]-[12]).
For those reasons, the Tribunal was not satisfied that the applicant met the requirements of cl.885.214 of Schedule 2 to the Migration Regulations. The Tribunal was also not satisfied that the applicant met the relevant requirements for the grant of a Subclass 886 or Subclass 887 visa (CB 137 at [12]-[13]).
Current Proceedings
The application filed on 2 August 2013 pleads the following ground of review:
1. The Tribunal committed jurisdictional error by misconstruing and misapplying clauses 487.216 and 485.216 of Schedule 2 of the Migration Regulations 1994 (Cth).
Particulars
(a) The Tribunal misconstrued and misapplied the law in the interpretation given to the words “accompanied by” in that provision.
(b) The Tribunal should have construed those words as applying to evidence provided to the Minister or the Tribunal, prior to the making of the decision on the applicant’s visa application.
I note that at the time of the filing of the application for review in this Court the applicant was legally represented, however, that representation was withdrawn on 13 January 2014 and the applicant was self-represented at the hearing.
Applicant’s Submissions
The applicant filed written submissions on 24 April 2014. In these, the applicant has reiterated the events surrounding the making of the application for the substantive visa and the conduct of his then migration agent. He states that the agent informed him he would take all the necessary steps to satisfy the relevant criteria, however, he never received the AFP check from his agent and believes the agent did receive the receipt for the AFP check and simply failed to communicate with him. The applicant claims the migration agent has since lost his practice license. It is the applicant’s belief that the actions (or inactions) of the former migration agent caused the failure of the receipt for the AFP check to be sent with his substantive visa application.
Attached to the applicant’s written submissions were three documents, namely:
a)The applicant’s substantive visa application;
b)Two receipts for payment from Raymond Solaiman & Associates to the applicant; and
c)Three AFP Police Certificates in respect of the applicant, dated 24 March 2010, 29 May 2012 and 5 December 2013.
Oral submissions
At the hearing, the applicant recited his complaint in respect of the conduct of his former migration agent. He stated that the failure to lodge the AFP certificate occurred as a result of his migration agent, not him.
The applicant also raised complaints in respect of the way in which he was notified of the Tribunal’s decision. He stated he was telephoned by a person at 6:00am on a Sunday morning to be informed the Tribunal had rejected his application and this person was very rude to him.
Minister’s Submissions
Written Submissions
The Minster contends that the applicant pleads that the Tribunal misconstrued and misapplied “clauses 487.216 and 485.216 of the Migration Regulations”. These provisions clearly have no application to this matter as the applicant applied for a Subclass 885 visa. However, even if this ground is read as a complaint that the Tribunal misconstrued cl.885.214, then the Minister submits that it cannot succeed.
The substance of the applicant’s complaint appears to be that the Tribunal should have found that the words “accompanied by” meant that the evidence could have been provided up until the time of the delegate’s and/or Tribunal’s decision. This complaint cannot succeed. Such an argument was put and rejected in Anand v Minister for Immigration and Citizenship (2013) 136 ALD 633 per Katzmann J at [28]-[29].
In any event, there was no evidence before either the delegate of the Tribunal to support a finding that, even if it were possible for evidence of the AFP check to be supplied around the time of the visa application, the applicant had applied for an AFP check in the 12 months immediately before the day when his application was made. In those circumstances, the application before the Court cannot succeed.
Oral Submissions
Mr McLaren, appearing for the Minister at the hearing, stated that the written submissions provided to the Court were effectively the same as those provided to the Tribunal. He went on to address the submissions relating to the AFP Certificates attached to the applicant’s written submissions. All the material attached to the applicant’s submissions was before the Tribunal at the hearing and this is reflected in the Court Book (see CB 127-128).
Mr McLaren then went on to address the applicant’s complaint in respect of notification of the Tribunal’s decision. He stated that the Tribunal complied with its statutory obligations to notify the applicant as did the Department in respect of the delegate’s decision.
Consideration
As stated above, this application seeks to challenge the decision of the Tribunal to refuse to grant the applicant a Skilled (Residence) (Class VB, Subclass 885) visa. The Tribunal found the applicant failed to provide evidence when applying for his visa that he had applied for an AFP check during the 12 months immediately before the day when the application was made (CB 136 at [4]), failing to satisfy cl.885.214 of Schedule 2 to the Migration Regulations.
Clause 885.214 of Schedule 2 to the Migration Regulations stated at the time the applicant lodged his visa application:
885.21 Criteria to be satisfied at time of application
…
885.214 The application is accompanied by evidence that:
(a) the applicant; and
(b) each person included in the application who is at least 16;
has applied for an Australian Federal Police check during the 12 months immediately before the day when the application is made.
Clause 886.214 is also in the same terms.
Her Honour Katzmann J in Anand (supra) considered the construction of cl.487.216 of the Migration Regulations which is in the same terms as cl.885.214. At [27]-[29] her Honour stated:
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 the relevant evidence is to accompany the application. Consistent with that purpose the evidence should be submitted with or at the same time as the application. Certainly that appears to be the object of the provision. Yet, it is not necessarily inconsistent with that purpose that the evidence is submitted after the visa application is lodged, although how long after is another question. There is force in Mr Karp’s submission that there is some flexibility or elasticity in the phrase “accompanied by”: see, for example, Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 at 103; Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 96 ; 94 ALR 361 at 378. It would seem that the delegate had the same view. Why else send the letter of 10 June 2009 requesting the evidence? In this respect I think that both the tribunal and the federal magistrate construed the words of cl 487.216 too narrowly. The next question is what, if anything, turns on this error of construction.
What are the consequences of the error?
28. For the above reasons I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged. Still, there must be some temporal connection with the application. Evidence supplied around the time of the application may be sufficient. I doubt, for example, if the accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application. It might even extend beyond that. Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within the 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, 5 months after the application was lodged and 2 days after the decision was made. Language cannot be stretched so far that it snaps: compare Wielgus v Removal Review Authority [1994] 1 NZLR 73 at 79. In contrast to the position in Berenguel the construction for which Mr Anand contended would compromise the purpose of the Regulations.
29. It is true that the tribunal “stands in the shoes” of the minister. But for present purposes that is beside the point. The question is not whether the evidence was provided to the minister; it is whether it accompanied the application. The federal magistrate correctly found that “application” in cl 487.216 meant the application for the visa.
In this matter, however, there was no evidence before the Tribunal that the applicant (or his migration agent on his behalf) had applied for an AFP check during the 12 months immediately before the day when the application was made. I follow Katzmann J’s reasoning in Anand at [29] that “application” in respect of cl.885.214 meant the application for the visa. This application was made on 16 June 2009. The earliest evidence of an AFP check being made in respect of the applicant is on 24 March 2010 (CB 127 and attached to the applicant’s written submissions). This correspondence clearly postdates the visa application and there was no evidence provided to the Tribunal (or the delegate) of when that AFP check was applied for or if any earlier AFP checks had been applied for. It follows that the Tribunal was bound to refuse the visa application as the applicant did not satisfy one of the criteria to be satisfied at the time of the visa application, namely cl.885.214.
To the extent that it can be interpreted that the grounds of the application make complaints about cl.887.214, her Honour Katzmann J in Anand considered this and these submissions cannot be sustained. It is clear that evidence of an AFP check accompanying a visa application of the nature being considered in these proceedings must be dated a date in the 12 months immediately before day when the visa application was made. The first chronological evidence relating to an AFP check in respect of the applicant is dated 24 March 2010. Accordingly, the sole ground of review must fail.
I now turn to the applicant’s complaints in respect of his former migration agent. The Tribunal made its findings in this respect at [6]-[8] and [14] of the Decision Record. No error is discernable on the part of the Tribunal on a fair reading of those paragraphs. To the extent that the applicant claims there has been a fraud on the Tribunal, there is no evidence to support such an allegation other than the applicant’s unsubstantiated submissions. There was no evidence of an application for an AFP check being made in the 12 months prior to the applicant’s visa application.
Lastly, I have had regard to the applicant’s complaint in respect of the way in which he was notified of the Tribunal’s decision. Sections 368, 368A and 379A of the Migration Act prescribe the manner in which written decisions of the Tribunal are to be prepared and the way in which the Tribunal (or one of its officers) is to notify an applicant of its decision on an application for review.
The evidence before the Court shows that on 8 July 2013 an officer of the Tribunal notified the applicant’s nominated representative by facsimile transmission of its decision and provided a copy therein (CB 133-139). I am satisfied the Tribunal satisfied ss.379A(5) and 379G of the Migration Act in notifying the applicant of its Decision. This is not disputed by the applicant. There is no evidence before the Court of a phone call being made to the applicant at 6:00am on a Sunday morning and I am of the view this complaint warrants no further consideration.
I have also undertaken a review of the Decision Record and the Court Book as a whole and can see no error on the part of the Tribunal.
Accordingly, the application should be dismissed with costs awarded to the Minister.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 10 September 2014
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