Babajee v Minister for Immigration - [2020] FCCA 655

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
Migration Regulations 1994 (Cth), cl.485.213

Cases cited:

Rahim v Minister for Immigration & Anor [2018] FCCA 1814
Rahim v Minister for Immigration and Border Protection [2018] FCA 1736

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 655
Decision Date: 18 February 2020

CaseChat Overview and Summary

Babajee applied to the Federal Circuit and Family Court of Australia for judicial review of a decision made by the Minister for Immigration concerning his application for a Skilled (Provisional) (Class VC) visa. The core of the dispute revolved around the Minister's assessment of Babajee's eligibility for this visa subclass.

The court was required to determine whether the Minister's decision to refuse Babajee's visa application was affected by an error of law. Specifically, the court considered whether the Minister had properly applied the relevant legislative criteria and whether the decision-making process was fair and reasonable in accordance with administrative law principles.

Judge Riethmuller found that there were no matters of principle raised by the application that warranted intervention. The court concluded that the Minister's decision was made in accordance with the applicable migration law and regulations, and that no legal error had been demonstrated. Consequently, the application for judicial review was dismissed.

Orders