ANNAM v Minister for Immigration
[2018] FCCA 3232
•25 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANNAM v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3232 |
| Catchwords: MIGRATION – Skilled (provisional) (class VC) (subclass 485) – show cause hearing – no arguable case – no error by the tribunal – delegate’s decision affirmed. |
| Legislation: Federal Circuit Court Rules 2001, r.44.12 Migration Regulations 1994, sch.2, cl.485.213 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 AQN15 v Minister for Immigration and Border Protection [2016] FCA 571 Craig v State of South Australia (1995) 184 CLR 163 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 Kirk & Anor v Industrial Court of New South Wales & Anor (2010) 239 CLR 531 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Siddique v Minister for Immigration and Border Protection [2014] FCA 1352 Spencer v Commonwealth of Australia (2010) 241 CLR 118 SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 SZTTW v the Minister for Immigration and Border Protection [2014] FCA 837 WZATH v Minister for Immigration and Border Protection [2014] FCA 969 |
| Applicant: | SREEKANTH ANNAM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1825 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 25 October 2018 |
| Date of Last Submission: | 25 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 25 October 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
This application filed on 22 August 2017 is dismissed.
The applicant pay the first respondent’s costs of the proceeding in the sum of $3 737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1825 of 2017
| SREEKANTH ANNAM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
By order of a registrar of this court made on 2 May 2018, the registrar ordered this proceeding to go forward under the show cause hearing procedure prescribed by r 44.12 of the Federal Circuit Court Rules (“rules”) before me.
Pursuant to that same order, the registrar required the applicant to provide an amended application, with proper particulars of his application and written submissions, 14 days prior to the date of this show cause hearing. The applicant failed to comply with those orders.
Among the orders that a court may make under r 44.12 of the rules is an order for the summary dismissal of the entire proceeding. Authority at the highest level, including Spencer v Commonwealth of Australia[1] and AMF15 v Minister for Immigration and Border Protection,[2] cautionary statements have been made to the effect that an order for the summary dismissal of the proceeding should not be lightly made. I have proceeded with that instruction in mind.
[1] (2010) 241 CLR 118
[2] [2016] FCAFC 68
In this proceeding, the applicant sought judicial review of a decision of the Administrative Appeals Tribunal made on 11 August 2017. He complained that the decision of the tribunal was wrong on three grounds. Expressed verbatim (with errors in the original), they were as follows –
(1)complete facts were not taken into account. Important facts have been let out at decision time;
(2)incorrect issues were identified and these were incorrect interpretations of the applicable law; and
(3)the decision has been affected by jurisdictional error.
Before turning to those grounds, it will suffice to say something briefly about the facts giving rise to this application for judicial review.
On 4 December 2016 the applicant, a 28 year old Indian citizen, applied to the department for a skilled (provisional) (class VC) (subclass 485) visa. On his application, the applicant indicated that he had not applied in the 12 months leading to the application to the Australian Federal Police (“AFP”) for a criminal records check.
On 23 January 2017 a delegate of the minister refused to grant the applicant the visa he sought on the basis that the applicant did not satisfy cl 485.213 of sch 2 to the Migration Regulations. That was because the applicant had not applied for an AFP check during the 12 months immediately before the day he lodged the visa application.
On 23 January 2017 the applicant applied to the tribunal for a review of the delegate’s decision.
On 18 July 2017 the tribunal invited the applicant to appear before it at a hearing scheduled on 9 August 2017.
On 9 August 2017 the applicant attended the hearing before the tribunal, in accordance with the previous schedule.
On 14 August 2017 the tribunal notified the application of its decision, made a few days earlier on 11 August 2017, to affirm the delegate’s decision to refuse to grant the visa that the applicant sought.
It is necessary to go to some of the more important findings of the tribunal.
Between paragraphs 1 to 6 of its reasons the tribunal recorded the relevant background of the applicant and his application.
In paragraph 7 of its reasons the tribunal stated that the issue before it was whether the applicant satisfied the requirements of cl 485.213.
That was a correct expression of the issue for the tribunal’s consideration in my view.
Between paragraphs 8 to 16 the tribunal set out the elements of cl 485.213, especially the need to have regard to the plain language of the clause, the relevant case law on the point and the provisions of the department’s Procedures Advice Manual, PAM3.
Between paragraphs 20 and 22 of its reasons the tribunal recorded that the applicant did not apply for the AFP check until three days after he lodged his visa application.
Between paragraphs 23 and 25 of its reasons the tribunal recorded that the applicant did not satisfy the requirements of cl 485.213 and the criteria for the grant of the visa.
The tribunal decided not to refer the matter to the minister under s 351, between paragraphs 31 and 43 of its reasons, and otherwise affirmed the delegate’s decision not to grant the visa.
As is sufficiently plain from the tribunal’s reasons the gravamen in its decision lay in the fact that the applicant did not satisfy a key criteria for the grant of the relevant visa, namely, that the applicant had not provided the relevant AFP check at the time of his application. The tribunal affirmed the delegate’s decision.
Being dissatisfied with the decision of the tribunal the applicant applied to this court by application filed 22 August 2017. The grounds of his application have been recorded above.
On behalf of the minister the point was taken that none of the grounds contained particulars with the consequence that according to a particular line of authority grounds of review expressed in a manner bereft of particulars rendered the ground amenable to dismissal on that ground alone.
Three authorities were cited by the minister. In fact, there are very many more. Let me catalogue them to include SZNXA v Minister for Immigration and Citizenship,[3] WZAVW v Minister for Immigration and Border Protection,[4] WZATH v Minister for Immigration and Border Protection,[5] AQN15 v Minister for Immigration and Border Protection,[6] BHK15 v Minister for Immigration and Border Protection,[7] MZARG v Minister for Immigration and Border Protection,[8] CNN15 v Minister for Immigration and Border Protection,[9] BYM16 v Minister for Immigration and Border Protection[10] and DQQ17 v Minister for Immigration and Border Protection.[11]
[3] [2010] FCA 775
[4] [2016] FCA 760
[5] [2014] FCA 969
[6] [2016] FCA 571
[7] [2016] FCA 569
[8] [2018] FCA 624
[9] [2017] FCA 579
[10] [2017] FCA 326
[11] [2018] FCA 784
Each of those authorities has consistently referred to the fact that particulars that do not set out propositions of fact and law by which it is possible to ascertain the basis on which an applicant asserts the existence of jurisdictional error render the application for judicial review amenable to dismissal. It was open for me in this case to rely on those authorities and to dismiss this application for want of particulars.
However, on the hearing of a show cause application and in particular an application for summary dismissal, two other authorities required me to investigate whether or not it would be a proper exercise of my discretion to summarily dismiss the proceeding. Those cases include Siddique v Minister for Immigration and Border Protection[12] and SZTTW v the Minister for Immigration and Border Protection.[13]
[12] [2014] FCA 1352
[13] [2014] FCA 837
Accordingly, while attractive it may have been to dismiss the proceeding by reason of the absence of particulars, I would fall short in my obligations by doing so. Accordingly, it became necessary to embark on a consideration of the substantive points in this case.
Ground one
Let me turn to ground one. Under that ground the applicant contended, as best as I was able to make out his ground, that the tribunal failed to take into account important matters.
I did not detect any want of the proper discharge of the tribunal’s functions. To the contrary, it seemed to me that the tribunal properly posed the correct question for its consideration, namely, whether the applicant satisfied the elements of cl 485.213.
That clause required the applicant to provide evidence, with his application, that he had obtained an AFP police check during the 12 months immediately before the day of his application. He failed to do so on the undisputed facts of this case.
Accordingly, it seemed to me that the tribunal properly investigated the matter that it had to investigate, albeit that it reached a conclusion that was not to the applicant’s liking. Ground one had no merit.
Ground two
Under ground two the applicant asserted that the tribunal identified incorrect issues and then incorrectly applied the law.
I disagree.
The tribunal correctly stated the one matter for its consideration, namely, whether the applicant satisfied cl 485.213. It also correctly postulated the relevance of Procedures Advice Manual, PAM 3 and the tribunal considered it.
I disagree that it recorded the incorrect issues for its consideration. To the contrary, it set out the correct issues and correctly applied the law to them.
Under the third ground the applicant said that the decision was affected by jurisdictional error. Without knowing the ambit of the precise complaint the applicant made, it seemed that he was obliquely seeking to invoke the types of categories of jurisdictional error espoused in such cases as Craig v State of South Australia[14] and Minister for Immigration and Multicultural Affairs v Yusuf.[15]
[14] (1995) 184 CLR 163
[15] (2001) 206 CLR 323
Those cases demonstrate that an administrative tribunal falls into error amounting to jurisdictional error with the effect of invalidating any order or decision of the tribunal if the tribunal –
a)identifies the wrong question;
b)asks itself a wrong question;
c)ignores relevant material;
d)relies on irrelevant material; or
e)in some instances, makes an erroneous finding or reaches a mistaken conclusion.
Those are illustrations only of the ambit of jurisdictional error as the High Court in Kirk & Anor v Industrial Court of New South Wales & Anor[16] held that it was neither necessary nor possible to attempt to mark the metes and bounds of jurisdictional error. The reasoning in Craig does not provide a rigid taxonomy of jurisdictional error.
[16] (2010) 239 CLR 531
Ground three
Under ground three the applicant made no attempt to identify what he said was the jurisdictional error in this case.
He did provide a document which he entitled submissions. I did not find that document to be particularly useful and I say that recognising that the applicant is a litigant in person for whom the processes of the Federal Circuit Court, in its judicial review jurisdiction, or indeed the requirements of the Migration Act might provide a high degree of uncertainty for him.
That said, it fell to the applicant to demonstrate the existence of a jurisdictional error by the tribunal. It was not for the minister to assist him in that. To my mind, the minister faithfully discharged his obligations as a model litigant in explaining in a neutral and uncontroversial manner the way in which the case came before the court today.
In my view ground three was without merit.
Conclusion
Accordingly, it seemed to me that in the exercise of the residual discretion I possessed to not summarily dismiss the proceeding, I should not exercise the discretion in any way other than by dismissing the proceeding, which I propose to do.
It seemed to me the applicant did not raise an arguable case for any relief, particularly not for the issue of constitutional writs by reason of the existence of jurisdictional error. In my opinion, the tribunal made no error in this case and I so dismiss this proceeding.
I order this proceeding to be dismissed and I order the applicant to pay the minister’s costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 8 November 2018
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