Babajee v Minister for Immigration
[2020] FCCA 655
•18 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BABAJEE v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 655 |
| Catchwords: MIGRATION – Application for judicial review – Skilled (Provisional) (Class VC) visa – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.55, 351, 353, 359A |
| Cases cited: Rahim v Minister for Immigration & Anor [2018] FCCA 1814 |
| Applicant: | BALKRISHNA BABAJEE |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1881 of 2018 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 18 February 2020 |
| Date of Last Submission: | 18 February 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 18 February 2020 |
REPRESENTATION
| The Applicant appeared In Person |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The name of the First Respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application be dismissed.
There be no Order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1881 of 2018
| BALKRISHNA BABAJEE |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore)
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 1 June 2018. The applicant in this case applied for a Skilled (Provisional) (Class VC) visa under the Migration Act 1958 (Cth) on 27 June 2017.
The applicant enclosed with the visa application a police check document that was generated by CVCheck.com, which is a third party website offering Australian police checks. The applicant believed that he was obtaining an Australian Federal Police check as described in cl.485.213 of the Migration Regulations 1994 (Cth). The applicant paid his money and provided the CVCheck document with his visa application.
The facts are strikingly similar to those in the case of Rahim v Minister for Immigration & Anor [2018] FCCA 1814 (affirmed in Rahim v Minister for Immigration and Border Protection [2018] FCA 1736). Unfortunately, that document is not sufficient to satisfy the regulations and, therefore, the applicant cannot be said to have applied for an Australian Federal Police check in the 12 months immediately before the date the application was made because he applied for a national police check through CVCheck.com.
There is no evidence of exactly what was displayed on CVCheck.com’s website in this case, although, I note that in the decision of Rahim (at [5]), I recount that the website did have a note on its page that the CVCheck national police checks cannot be used for immigration, albeit, not in a particularly large font. As with the previous occasion I am prepared to accept the applicant’s claims from the bar table that he genuinely believed he was obtaining the relevant document and was simply mistaken.
Following lodging the documents, the applicant received a request from the delegate to address the question of whether or not he had a national police check and the applicant then forwarded a document he obtained that answers the criteria, copies of which appear in the Court Book. The applicant assumed that that meant that he had resolved the technical problem with his visa application but, due to the wording of reg.485.213, the delegate, nonetheless, was obliged to refuse his application and the applicant then applied for review to the Tribunal who also refused his application.
After having a hearing with the applicant in May 2018, the Tribunal concluded that the application for the correct police check had not been made at the time when the applicant applied for the visa and, therefore, the applicant did not satisfy that visa criteria and, therefore, affirmed the decision of the delegate.
Grounds of judicial review
The applicant raised a number of different grounds in his argument with respect to overturning the delegate’s decision and is set out in his application as follows:
1. The Minister breached the code of procedure for dealing fairly, efficiently and quickly with visa applications in this matter.
Particulars
(a) The delegate unfairly assessed the application despite seeking further information.
(b) The delegate was aware that the applicant:
i. Was overseas,
ii. Had no access to his mail box in Australia.
2. The Tribunal did not exercise its jurisdiction and failed to consider the relevant facts of the case.
Particulars
(a) The applicant was given until the 26 July 2017 to submit the Complete Disclosure AFP to the delegate.
(b) The applicant was overseas during that period and had no choice to upload the receipt of the purchase dated 20 July 2017.
(c) The applicant had limited time and rushed through a third party to have a quicker service.
(d) the applicant has provided a statement by an appropriate authority to the tribunal which was issued by 26 July 2017.
(e) The applicant would have uploaded the statement if he was onshore during that period.
3. The Tribunal failed to exercise the jurisdiction and powers conferred by s353of the Migration Act 1958.
Particulars
(a) Section 353(a) of the Act states that the Tribunal is not bound by technicalities and s353(b) states that the Tribunal shall act according to substantial justice and merit of the case.
(b) The merit of the case required due consideration of the fact that the applicant had no court disclosable outcomes in his character test.
(c) The merit of the case also demanded that, the fact that the delegate demanded the AFP certificate on 20 July 2017, to be submitted by 26 July 2017, the applicant did apply for the AFP certificate and uploaded the receipt.
(d) The Tribunal, despite accepting in paragraph 11 of its Statement of Decision and Reasons that at the crucial period of time the applicant; was overseas, was busy in his wedding, had little access to his email and had no access to his mail box in Australia, reasons for which the document was not uploaded by 26 July 2017, ignored these facts in paragraph 13 while making the decision. This clearly shows that the tribunal failed to act according to substantial justice and merit of the case and preferred technicalities involved in.
4. The Tribunal was required to consider the circumstances of the case of the applicant as held in the case law Berengual V The Minister for Immigration, (2010) 264 ALR 417
Particulars
(a) Section 55 of the Act states that until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making his decision.
(b) The applicant did possess the right and correct certificate before the Minister made his decision on 09 August 2017.
(c) The questions I would like the court to consider here are:
i. Did the delegate of the defendant apply Regulation 485.213 at the time of assessment on 20 July 2017?
ii. Was the procedure for the visa application assessment done fairly when the applicant was overseas and restricted from his mail box?
iii. In this special circumstance, would the applicant satisfy the criteria of 485.213 if the applicant was onshore on 24 July 2017 and uploaded the Complete disclosure certificate issued on 24 July 2017 which was within the timeframe provided by the delegate?
(d) Admittedly there is nothing adverse on the police record of the applicant neither here nor in his home country Mauritius.
5. The Tribunal breached s359a of the Act.
Particulars
(a) The Tribunal failed to
i. give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
ii. ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
iii. invite the applicant to comment on it.
Ground One
The applicant cannot raise complaints about the delegate given that the Tribunal decision replaces the delegate’s decision and the judicial review relates to the Tribunal. In this respect ground 1 cannot succeed.
Ground Two
The second ground sets out that the applicant had limited time and that the Tribunal had failed to exercise its jurisdiction and to consider the relevant facts of the case. It seems clear that the Tribunal did have regard to the relevant facts and understood precisely what occurred with respect to the applications for police check documents and that, therefore, there’s no basis for this ground to have any success.
Ground Three
The applicant raises the question as to whether or not s.353 of the Act should provide him with some relief. That section provides as follows:
353. The Tribunal, in reviewing a Part 5-reviewable decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.
The section requires that the Tribunal not be bound by technicalities and that the Tribunal act in accordance with the substantial justice and merit of the case. It is not surprising that the section is attractive for the applicant given that, on a practical view of the case, he made a minor technical error in sending the wrong police check document which he immediately rectified. I also note that it is clear that there is no suggestion that the applicant has any form of police record, nor is there any suggestion that he was hiding anything: In his case, the police check was, in reality, a formality as it demonstrated that he had no criminal history.
The difficulty with this argument is that reg.485.213 appears to be a criteria that forms part of the visa and that criteria is that the application is accompanied by evidence that the applicant had applied for an Australian Federal Police check. It does not seem to me, that it is open to rely upon s.353 to overcome a failure to comply with a requirement for an application for a visa.
In these circumstances, I am not persuaded that this ground provides an arguable case for the applicant.
Ground Four
The fourth ground relates to s.55 of the Act which requires the Minister to consider any material provided prior to deciding whether or not to grant the visa. Had reg.485.213 merely required that the applicant provide a copy of an Australian Federal Police check, the applicant would have been able to rely upon s.55 to justify sending the police check in, either prior to the delegate decision or at least prior to the Tribunal’s decision. However, the terms of the regulation require that the application for that check be made in the 12 months immediately before the day of the application for the visa, which had not occurred in this case.
I am, therefore, not persuaded that the applicant has an arguable case with respect to s.55 of the Act in the context of this particular case.
Ground Five
The applicant also raises a final general ground with respect to s.359A of the Act. In this case it was clear that the applicant was aware of the nature of the issue before the Tribunal and that the Tribunal squarely addressed that issue in their decision. On the material before me I am not able to see a way in which, at law, I can conclude that the applicant has an arguable case or a method of succeeding in this case given the facts and circumstances and the operation of reg.485.213.
It appears to me that the only real remedy that remains open to the applicant in this case is an application to the Minister under s.351 of the Act.
Conclusion
There is nothing in the material before me to indicate that the applicant would not have been granted this visa had he simply obtained the printout from the Australian Federal Police rather than the printout from CVCheck.com, particularly, in circumstances where there is no suggestion that he has any criminal history in any event. However, it is ultimately a matter for the Minister whether or not to exercise the power under s.351.
In the circumstances of this case, therefore, I dismiss the application of the applicant.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 23 March 2020
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