Annam v Minister for Immigration and Border Protection & Anor
[2019] HCATrans 135
[2019] HCATrans 135
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M31 of 2019
B e t w e e n -
SREEKANTH ANNAM
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
FEDERAL COURT OF AUSTRALIA
Second Defendant
NETTLE J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON MONDAY, 24 JUNE 2019, AT 9.30 AM
Copyright in the High Court of Australia
MR ANNAM appeared in person.
MR C.E.A. HIBBARD: May it please the Court, I appear for the first defendant in that matter. (instructed by Clayton Utz Lawyers)
HIS HONOUR: Thank you, Mr Hibbard. Would you call the matter outside, Madam Registrar. Come in, Mr Annam, have a seat. Mr Annam, you appear for yourself this morning?
MR ANNAM: Yes.
HIS HONOUR: I have had the benefit, thank you, of your material in writing. Is there anything that you wish to add orally to what has already been advanced? Something further you would like to say in support of your case?
MR ANNAM: Yes, I say orally.
HIS HONOUR: Could you just stand near the microphone so that they can – yes, stand up there, please.
MR ANNAM: Yes.
HIS HONOUR: They can hear you then.
MR ANNAM: Yes. So I already submitted some files, so I can say just give me five minutes I can explain myself.
HIS HONOUR: Would you say that again please?
MR ANNAM: I can say like give me five minutes, I can explain my case and everything.
HIS HONOUR: Yes, of course. This is your opportunity. If there is anything further you would like to say now you should say it.
MR ANNAM: Yes. Firstly, I submitted my application two years back. At that time I was a student so I submit myself as - on the time, so it was like lack of knowledge on that time only. I submitted technical issues on the time so I just pressed that…..because I thought like that you like – 27 days’ time regarding the submitting like all applications, attached applications. So that in generally I submitted the.....because I have already the police check and everything, the Federal Police check, so I got everything. There is no…..like doing that one.
So after I submitted that one I realised it is a mandatory application so – because I got no ‑ like I did not approach any like migration agent because I cannot able to put some like money so – I was a student on that time. This going to be big issue so because of one application, it is going to be – everything going to be very depression so I ‑ follow that I approach the court, so Tribunal and then Federal Circuit. I am only asking for this one is like because of one certification everything will be disappointed, my career. So I am asking to the Court, so this one, if it is – I have like proper evidence, like there is no criminal evidence I think from on me, everything is going on process. Because I have only on the time I was like – there is rules and regulations, I have no idea on the time, so I applied myself.
There is no on that one immigration website. It says like what must - and it is only certain options only. If it says “mandatory” I will definitely submit that application on that time. Everything is remaining – every fields, it is mandatory, mandatory, so I can prepare that one on that time only. It says like, “…..options only”. So I just put “no” maybe on the time. And on the day only I apply and the next day I submit the police check.
So it says, after that one, without any mail or anything to me, directly they sent to them email so – which said it has been cancelled. That is the only thing that happened, so it is going to be – almost this one and a half year I spent like 48 ‑ $49,000 for my Masters and like this one for $9,000 for the Court proceedings and everything because I am a student only here. I cannot able to earn that much money so I afford that one because of – maybe get some positive response, so that is why if suddenly it happens you have to go back to the country it means I cannot able to – like there is no proper jobs there in my country. If I get my Masters there is no like proper – there is no use to get my Masters. So I am asking only the question to the Court, so at least I have like proceeding with my – do some…..or something here so it will be better for me for my future.
Very suddenly…..here. There is no options for me because of one application. I am going through everything in a proper way. For this I do the Masters and then applying for the…..and then with like getting the…..and then this is my goals and everything I dream. If it suddenly happens I know I can obey the rule, I did the thing on the time, the rules and regulations. I have to obey the rules, but it happens – the mistake happens at the time ‑ on the technical issue on the time.
I am requesting the Court maybe give some extension for my proceeding, at least I can get my…..and then it will be useful for my next opportunity, but if it suddenly stops here and make me – there is no options and nothing for me so…..option.
HIS HONOUR: Yes, I understand. Thank you.
MR ANNAM: Thank you.
HIS HONOUR: Mr Hibbard.
MR HIBBARD: Your Honour, I only wish to make some brief submissions in addition to the written response of the Minister and response to the oral submissions made by the plaintiff today.
That was in particular first to what appeared to be a request for an extension of today’s hearing. To the extent that request is pressed by the plaintiff, the Minister would oppose that request because there is insufficient reasons given for any further extension of the hearing.
I may have misunderstood Mr Annam, but he seemed to be suggesting that he had applied for the Australian Federal Police check prior to applying for the visa application – or making the visa application.
HIS HONOUR: I took him to say the day after.
MR HIBBARD: Yes. That, as I understood it, was the case. I just may have misunderstood – or apparently did misunderstand Mr Annam. In those circumstances, the evidence that has been before the Tribunal and, indeed, was before the Federal Circuit Court and Federal Court, has always been that Mr Annam applied for the Australian Federal Police check the day after and it was subsequently issued by the Australian Federal Police.
HIS HONOUR: Can he make another application or is he barred from doing that now?
MR HIBBARD: He could have withdrawn his application and effectively started again.
HIS HONOUR: Because it has gone through to completion that is now foreclosed, is it?
MR HIBBARD: Exactly so, your Honour.
HIS HONOUR: Yes. Was he advised that he could withdraw and start again?
MR HIBBARD: I am not aware of that, your Honour. I could seek instructions on that point.
HIS HONOUR: Yes, please.
MR HIBBARD: Your Honour, I have just been reviewing the correspondence from the Department to the plaintiff in the course of his visa application, there does not appear to be any correspondence advising him of the possibility of withdrawing his application.
HIS HONOUR: Yes, I see. Thank you. Mr Annam, could you just clarify it was the day after you filled out the web page that you sought the police check, was it?
MR ANNAM: I submitted on the next day.
HIS HONOUR: The next day you sent away.
MR ANNAM: Yes.
HIS HONOUR: Yes, I see. Thank you.
MR ANNAM: On the day – once I submitted the application, on the day at uni I printed one. I have…..a police check but it was almost six months it is already expired, so that is why.
HIS HONOUR: Would you say that again please?
MR ANNAM: I have already police check before I create that one but it is already six months – they mention only six months before the police check, it is already…..that is why you have to renew that,…..a new one, so I submitted the new one on the next day.
HIS HONOUR: But you had not applied for a police check within the 12 months preceding the date of your application?
MR ANNAM: While filling the application.
HIS HONOUR: Yes.
MR ANNAM: Yes.
HIS HONOUR: You had not? You had not sought a police check within that 12 months preceding?
MR ANNAM: No, it is already expired, that previous one. No.
HIS HONOUR: When did you apply for it, the previous one?
MR ANNAM: It is almost – once I came here, it is almost one year back.
HIS HONOUR: Almost one year?
MR ANNAM: Yes, it is not 12 months.
HIS HONOUR: Not 12 months?
MR ANNAM: Yes.
HIS HONOUR: Just let me be perfectly clear about this. You say that within 12 months before making your application for the visa you had applied for a police check and it had been granted for a period of six months and expired, is that correct?
MR ANNAM: Yes.
HIS HONOUR: Have a seat please. Mr Hibbard, can you help me please?
MR HIBBARD: Yes, your Honour.
HIS HONOUR: I mean, if it were the fact – and I do not say it is at the moment – that there had been an application for a police check within the 12 months preceding then the condition would be satisfied, would it not?
MR HIBBARD: No, it would not, your Honour. Might I hand up a bundle of documents ‑ ‑ ‑
HIS HONOUR: Yes, please.
MR HIBBARD: ‑ ‑ ‑ and I might draw your Honour’s attention to the wording of the provision.
HIS HONOUR: Is this 485.2?
MR HIBBARD: Yes, 485.213.
HIS HONOUR: Yes.
MR HIBBARD: A copy of that regulation is in the inside cover of that bundle of documents.
HIS HONOUR: Yes.
MR HIBBARD: If your Honour turns to the third page there is clause 485.213 and that provides:
When the application was made, it was accompanied by evidence that:
(a) the applicant –
. . .
had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.
The difficulty here for the plaintiff is that he was required to provide that evidence along with his application.
HIS HONOUR: So what did he provide, just an assertion that he had done so?
MR HIBBARD: It is not even that, your Honour, an assertion that he did not have an Australian Federal Police check. Does your Honour have an affidavit ‑ ‑ ‑
HIS HONOUR: No, no, I do have the affidavits, thank you. It is all one way, no one ever goes back to them and says “you have not ticked this box” or “you need to put that in”, a bit like the Registrars do here in Court.
MR HIBBARD: Perhaps so, your Honour.
HIS HONOUR: That is not the case with the Department.
MR HIBBARD: No, I do not know, your Honour, but certainly not in this case.
HIS HONOUR: Yes, I see. Do you know, Mr Hibbard, whether he had in fact applied for a police check during the 12 months preceding the application?
MR HIBBARD: No, your Honour, I do not know that. All I know is the police check that was provided to the Administrative Appeals Tribunal and that is the one that the applicant applied – or the plaintiff applied for the day after his visa application.
HIS HONOUR: Yes, thank you very much.
MR HIBBARD: May it please the Court.
HIS HONOUR: Mr Annam, you have heard what Mr Hibbard has to say, is there anything you want to add in light of what he has said? I do not
suggest that you should, I am just giving you the opportunity if you wish to controvert anything he has said.
MR ANNAM: Nothing.
HIS HONOUR: By Application for a Constitutional or other Writ, the plaintiff applied for the following relief:
“Plaintiff is requesting the [H]igh [C]ourt to accept the application on the basis of show cause grounds. Appeal be allowed. decision of JUSTICE CHAR[L]ESWORTH, Judge JD Wilson QC, and the Administrative [A]ppeal[s] Tribunal be set aside. The matter be remitted to the Administrative Appeals Tribunal to be determined in accordance with law.”
On 5 June 2019, the applicant filed further submissions largely repeating the substance of submissions made in the Application for a Constitutional or Other Writ and attaching an extract of s 55 of the Migration Act 1958 (Cth) and of cl 485.213 of the Migration Regulations 1994 (Cth).
The plaintiff is a citizen of India. On 4 December 2016, he applied for a Temporary Graduate (Class VC) Temporary Graduate (Post‑Study Work) (Subclass 485) visa through the Post‑study work stream.
Clause 485.2 of Sch 2 to the Migration Regulations 1994 (Cth) relevantly provides that:
"485.2 - Primary criteria
Note: The primary criteria for the grant of a Subclass 485 visa include the criteria set out in streams.
…
If an applicant applies for a Subclass 485 visa in the Post‑Study Work stream, the criteria in Subdivisions 485.21 and 485.23 are the primary criteria.
The primary criteria must be satisfied by at least one member of a family unit.
The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application, unless otherwise stated.
485.21 - Common criteria
Note: These criteria are for all applicants seeking to satisfy the primary criteria for the grant of a Subclass 485 visa.
485.211
…
485.212
…
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 plaintiff’s application for visa of 4 December 2016 was not accompanied by evidence that the applicant, or any person included in the application, had applied for an Australian Federal Police check during the 12 months preceding 4 December 2016.
On 23 January 2017, a delegate of the first defendant Minister refused the plaintiff’s application for visa for failure to comply with cl 485.213.
The plaintiff appealed to the Administrative Appeals Tribunal (“AAT”) but, on 11 August 2017, the AAT affirmed the delegate’s decision.
The applicant applied to the Federal Circuit Court of Australia for judicial review of the AAT’s decision but, on 25 October 2018, Judge Wilson QC ordered that the proceeding be summarily dismissed pursuant to r 44.12 of the Federal Circuit Court Rules2001 (Cth).
The plaintiff sought leave to appeal to the Federal Court of Australia but, on 6 February 2019, Charlesworth J dismissed the application and affirmed the rectitude of Judge Wilson’s order.
The plaintiff’s application is out of time and no extension of time has been sought. It is also incompetent, in that it fails to comply with the requirements of r 25.01 of the High Court Rules 2004 (Cth). Further, inasmuch as it seeks judicial review of the AAT’s decision, it is an abuse of process: because that relief has already been refused by the Federal Circuit Court and the plaintiff has been refused leave to appeal from that decision to the Federal Court[1].
[1]See and compare Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at 678 [11]‑[14] per Gageler J; 297 ALR 560 at 562‑563; [2013] HCA 22.
In addition to those difficulties, the plaintiff’s application does not disclose an arguable basis for the relief that is sought. It advances no reason to doubt the correctness of the delegate’s decision, or the AAT’s decision, or thus reason to doubt the correctness of the judgments and orders of the Federal Circuit Court and of the Federal Court.
Clause 485.213 conditioned the grant of a Subclass 485 visa on the application for visa being accompanied by evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the date of application; and thus, in effect, on the applicant providing a police check[2]. Since the plaintiff failed to satisfy that condition, the delegate was bound to refuse the plaintiff’s application for visa and the AAT was bound to affirm the delegate’s decision. It is beside the point that the plaintiff might not have been aware of the requirements of cl 485.213, as the plaintiff contends, or that he applied for a police check after making the application for the visa, as he alleges. The requirements of cl 485.213 were mandatory.
Conclusion
In the result, the Application for a Constitutional or Other Writ should be dismissed on the ground that, it is out of time; and, inasmuch as it seeks judicial review of the AAT’s decision, it is an abuse of process. It does not disclose an arguable basis for relief.
The order of the Court is:
[2]See and compare Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251 at 254 [17], 255 [24] per French CJ, Gummow and Crennan JJ; 264 ALR 417 at 421, 422; [2010] HCA 8.
1. The application for constitutional or other writ is dismissed.
Do you seek costs?
MR HIBBARD: Yes, your Honour.
HIS HONOUR: It is ordered that it be dismissed with costs.
MR HIBBARD: May it please the Court.
HIS HONOUR: I shall now adjourn.
AT 9.51 AM THE MATTER WAS CONCLUDED
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