Boddu v MIBP

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FEDERAL COURT OF AUSTRALIA

Boddu v Minister for Immigration and Border Protection [2019] FCA 1340

Appeal from: Application for leave to appeal: Boddu v Minister for Immigration and Anor [2019] FCCA 879
File number: VID 392 of 2019
Judge: STEWARD J
Date of judgment: 20 August 2019
Legislation:

Federal Circuit Court Rules 2001 (Cth) r 44.12

Migration Regulations 1994 (Cth) cl 485.213

Cases cited:

Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562

Boddu v Minister for Immigration and Anor [2019] FCCA 879

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Date of hearing: 20 August 2019
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: No Catchwords
Number of paragraphs: 15
Counsel for the Applicant: The applicant appeared in person
Counsel for the First Respondent: Ms S Roberts
Solicitor for the First Respondent: Mills Oakley
Counsel for the Second Respondent: The second respondent filed a submitting notice

ORDERS

VID 392 of 2019
BETWEEN:

SRIVANTHI BODDU

Applicant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

STEWARD J

DATE OF ORDER:

20 AUGUST 2019

THE COURT ORDERS THAT:

1.The application for leave to appeal is refused with costs as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

STEWARD J:

  1. On 15 March 2017, a delegate of the first respondent, (the “Minister”), refused to grant the applicant a Skilled (Provisional) (Class VC) (Subclass 485) visa (the “visa”). That decision was affirmed on review by the second respondent (the “AAT”). The applicant then sought judicial review of that decision in the Federal Circuit Court. That application was dismissed at a show cause hearing, pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). At all times, the applicant, who is from the Republic of India, was self-represented. She has no legal qualifications. The applicant now seeks leave to appeal the decision of the Circuit Court to this Court.

    Background

  2. It is unnecessary for me to set out the reasons of the learned primary judge below.  They can be found at Boddu v Minister for Immigration and Anor [2019] FCCA 879. At the time the applicant made her application for the visa, she needed to comply with cl 485.213 of Sch 2 to the Migration Regulations 1994 (Cth) (the “Regulations”), which was in the following form:

    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.

  3. It is accepted that on 18 January 2017, the date of the visa application, the applicant did not supply evidence that in the preceding 12 months she had applied for an Australian Federal Police (the “AFP”) check.  Indeed, in answer to the question…

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Details
Case
[2019] FCA 1340
Decision Date

CaseChat Overview and Summary

In the case of Boddu v MIBP, the applicant, an Indian national, sought judicial review of the decision of the Minister for Immigration to refuse to grant her a Skilled (Provisional) visa. This was subsequently affirmed by the Administrative Appeals Tribunal. The Federal Circuit Court dismissed the application for judicial review, and the applicant now seeks leave to appeal to the High Court. The primary issue before the court was whether the applicant had complied with the requirements of cl 485.213 of Sch 2 to the Migration Regulations 1994 (Cth) when she applied for the visa.

The court held that the language of cl 485.213 required the applicant to provide evidence that she had applied for an Australian Federal Police check before making her visa application. The fact that she took steps to acquire such a check a few weeks later was insufficient. The court held that the language of the provision compelled that conclusion. The court also held that the applicant had had ample opportunity to seek legal assistance, but had chosen not to do so on the basis of cost. The applicant had not established that she had been denied natural justice or that the primary judge had made a mistake in construing the law. The applicant's desire to avoid an unwanted marriage in India did not provide a sufficient basis for the court to grant leave to appeal.

The application for leave to appeal was refused with costs as agreed or assessed.

Orders

Orders of the court

1. The application for leave to appeal is refused with costs as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

On 15 March 2017, a delegate of the first respondent, (the “Minister”), refused to grant the applicant a Skilled (Provisional) (Class VC) (Subclass 485) visa (the “visa”). That decision was affirmed on review by the second respondent (the “AAT”). The applicant then sought judicial review of that decision in the Federal Circuit Court. That application was dismissed at a show cause hearing, pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). At all times, the applicant, who is from the Republic of India, was self-represented. She has no legal qualifications. The applicant now seeks leave to appeal the decision of the Circuit Court to this Court.Background It is unnecessary for me to set out the reasons of the learned primary judge below. They can be found at Boddu v Minister for Immigration and Anor [2019] FCCA 879. At the time the applicant made her application for the visa, she needed to comply with cl 485.213 of Sch 2 to the Migration Regulations 1994 (Cth) (the “Regulations”), which was in the following form: 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. It is accepted that on 18 January 2017, the date of the visa application, the applicant did not supply evidence that in the preceding 12 months she had applied for an Australian Federal Police (the “AFP”) check. Indeed, in answer to the question posed on the online form, namely, “[h]ave you and all persons included in this application who are 16 years of age or over applied in the last 12 months to the Australian Federal Police for a check of criminal records?”, the applicant responded “No”. That is because she had yet to obtain an AFP check. She did, however, seek such a check a few weeks later. Both the AAT and the learned primary judge were of the view that there had been non‑compliance with cl 485.213, so that the Minister was bound to reject her visa application. She needed to have produced evidence that she had applied for an AFP check before making her visa application. The fact that she took steps to acquire such a check a few weeks later was insufficient. The language of cl 485.213, it was said, compels that conclusion.Application for Leave The application for leave was accompanied by an affidavit affirmed by the applicant on 18 April 2019. In that affidavit, she set out her perception of what had occurred before the learned primary judge. In essence, she had sought an adjournment to obtain legal advice. This had been refused. The learned primary judge was of the view that the applicant had had ample opportunity, of around seven to eight months, to seek legal assistance. When asked why this had not occurred, the applicant said, amongst other things, that she could not afford to obtain legal assistance. The applicant, nonetheless, considered that she had been denied natural justice and that she had a good case. She deposed her belief that the learned primary judge had made a mistake in construing the law. She further deposed that if she were compelled to return to India, her parents would force her to marry someone she does not want to marry. Understandably, she does not want that to happen.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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