Ashraf v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 176
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ashraf v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 176
File number(s): | MLG 1390 of 2018 |
Judgment of: | JUDGE EGAN |
Date of judgment: | 16 March 2022 |
| Catchwords: | MIGRATION – application for skilled work visa – failure to meet relevant criteria which were necessary preconditions required to be satisfied before a visa could be granted – no jurisdictional error on the part of the Tribunal – application dismissed |
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| Legislation: | Migration Regulations 1994 (Cth) sch 2. Reg. 485.213 |
| Cases cited: | Anand v Minister for Immigration and Citizenship [2013] FCA 1050 per Katzmann J. Rahim v Minster for Immigration and Border Protection [2018] FCA 1736 per Davies J. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 |
Division: | Division 2 General Federal Law |
Number of paragraphs: | 12 |
Date of last submission/s: | 15 March 2022 |
Date of hearing: | 15 March 2022 |
Applicants: | Mr Ashraf as a Self-Represented Litigant |
Solicitor for the First Respondent: | Mills Oakley |
Second Respondent: | Submitting appearance save as to costs |
ORDERS
MLG 1390 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
| BETWEEN: | AYAZ ASHRAF First Applicant RIZWANA BANO Second Applicant MEKAEEL AYAZ Third Applicant |
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent |
ORDER MADE BY: | JUDGE EGAN |
DATE OF ORDER: | 16 MARCH 2022 |
IT IS ORDERED THAT:
The Originating Application for Review filed on 21 May 2018 be dismissed.
The First and Second Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,853.00.
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).
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REASONS FOR JUDGMENT
Judge Egan
Introduction
The first applicant is a citizen of Pakistan. The second applicant is the first applicant’s wife, and the third applicant is the child born of the union of the first applicant and the second applicant.
On 4 May 2017, the first applicant made application for the grant to him of a Skilled (Provisional) (Class VC) Subclass 485 Visa. The second applicant and the third applicant were each included in the application as members of the first applicant’s family unit.
It was a precondition for the grant to the first applicant of the visa that he met the criteria as set out in r. 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
Regulation 485.213(1) relevantly provided as follows:
“485.213
(1) 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.
(2) …
On 26 October 2017, the application for the visa was refused by a delegate of the Minister on the basis that the criteria under r. 485.213(1)(b) of the Regulations had not been met.
On 27 October 2017, the applicants applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision of the delegate.
On 17 April 2018, the Tribunal gave oral reasons for affirming the decision of the delegate. On 12 August 2019, the Tribunal published its written reasons for decision. It too had found that no evidence had been provided by the applicants that they had applied for an Australian Federal Police check in the 12 month period immediately before the date on which the visa application had been made.
On 21 May 2018, the applicants filed an Originating Application for Review of the decision of the Tribunal. The Grounds of Review did not in any meaningful way address the applicants’ non-compliance with the provisions of r. 485.213 of the Regulations.
This Court is bound by decisions of the Federal Court involving the same factual scenario as was present in the subject matter where it was held that a failure to meet the r. 485.213 criteria was fatal to the granting of the visa application. [1]
[1] Anand v Minister for Immigration and Citizenship [2013] FCA 1050 per Katzmann J and Rahim v Minster for Immigration and Border Protection [2018] FCA 1736 per Davies J.
The decision of the Tribunal could not be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66]This approach does not deny that there is an area within which a decisionmaker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76]As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The Applicants have failed to establish jurisdictional error on the part of the Tribunal.
The Originating Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.
Associate:
Dated: 16 March 2022
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