Boddu v MIBP
[2019] FCA 1340
•20 August 2019
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:
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.
Her proposed notice of appeal disclosed the following grounds:
1.The appellant was denied an adjournment to obtain legal advice regarding the appellant’s claims which amounts to a denial of natural justice.
Particulars
1.1The appellant made an application for an adjournment on 12 February 2019.
1.2The Federal Circuit Court did not allow the appellant to provide full argument as to the reasons for why she could not proceed on that day and her desire to obtain legal advice.
1.3The Federal Circuit Court refused the application for an adjournment to obtain legal advice on the basis that she had plenty of time to get advice.
1.4The Federal Circuit Court failed to have regard to the appellant’s reasons for not obtaining the advice earlier both at the hearing and failed to have proper regard to her affidavit affirmed 27 February 2019.
1.5 This amounted to a denial of natural justice.
2.The appellant was not given a proper opportunity to be heard and was denied procedural fairness.
Particulars
2.1The appellant appeared at the hearing unrepresented and requested an adjournment.
2.2The Federal Circuit Court refused the appellant’s request for an adjournment and did not allow her to provide full explanation and evidence regarding the extenuating personal circumstances which she had faced.
2.3The Federal Circuit Court proceeded to hear full submissions from the First Respondent's legal representative and not the appellant.
2.4She was not given a proper opportunity to present her case and was denied procedural fairness.
3.The Federal Circuit Court erred in misconstruing or misapplying cl.485.213(b) of Sch 2 to the Migration Regulations 1994 (Cth).
4.The Federal Circuit Court failed to consider a pleaded grounded including all particulars which constitutes a failure to exercise its jurisdiction.
The principles concerning the grant of leave are well-established. There must be:
(a)sufficient doubt as to the correctness of the judgment below, and
(b)assuming the judgment to be wrong, that substantial injustice would be suffered if the application for leave were to be refused.
See Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.
In my view, the second element of the test is made out here. If the judgment below is assumed to be wrong, the applicant will suffer substantial injustice if she is not granted leave. More problematic for the applicant, however, is the first element of the test. The requirements of cl 485.213 are clear. When the visa application was made, it had to be accompanied by evidence that the applicant had applied for a police check during the preceding 12 months. The applicant had not done this. It is also my view that there is no room here for a test of temporal connection of the kind considered in Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562. In that case, the applicant had in fact applied for a police check before making the visa application, but answered “no” in the visa application form concerning that issue. The police check was supplied after making the application. It was found that this was sufficient to show that such a check had accompanied the application. Here, unlike the situation in Anand, no application for a police check had been made in the preceding 12-month period. Moreover, the learned primary judge also rightly recognised that the language of the regulation considered in Anand is different to the language found in cl 485.213.
Grounds of Appeal
I turn now to consider the three proposed grounds of appeal.
Ground One
The Minister submitted that the applicant was not denied procedural fairness because she had been given a sufficient opportunity to secure legal representation. He observed that on 16 July 2018, the parties were advised that a show cause hearing would take place in about four months’ time on 19 November 2018. The Minister filed his written submissions on 2 November 2018, and on 8 November 2018, the parties were advised that the hearing date was to be moved to 12 February 2019, about seven months after the first notification. The Minister also pointed out that the applicant was granted a period of 14 days after the hearing to file any further submissions she might want to rely upon. She filed an affidavit affirmed on 27 February 2019, which the applicant submits was never considered. That, with respect, is not the case. The learned primary judge expressly referred to that affidavit at [9]. Before me, the applicant explained that she was unaware of the terms of cl 485.213 and thought, based on advice from friends, that she could supply the police check after making the visa application. Regrettably for her, that belief was mistaken. The applicant understandably does not want to be punished for making what, in her words, was a small mistake. Unfortunately, for the reasons given by the learned primary judge, in my view that mistake was relevantly dispositive.
I thus respectfully disagree with the applicant’s submission. In my view, she did have sufficient time to seek legal representation. In my view also, the evidence was not that she had had no reasonable opportunity to obtain legal advice but, rather, she did not have the money to pay for such advice. In my view, she was not therefore denied procedural fairness. Ground one lacks sufficient merit for a grant of leave.
Ground Two
In proposed ground two, the applicant alleges that she was not given a proper opportunity to be heard. In contrast, it was said full submissions were heard from the Minister but not from the applicant. As I understood this contention, it is bound up in her lack of legal representation. For reasons already given, in my view the applicant was given a proper opportunity to be heard. She made submissions before the learned primary judge on 12 February 2019 and was given the opportunity to make more submissions, which she did, by her affidavit of 27 February 2019. This ground lacks sufficient merit as well.
Ground Three
In proposed ground three, the applicant contends that the judge below erred because his Honour did not consider that she had applied for a police check only a short time after lodging her visa application. In my view, the learned primary judge did not overlook this submission, which is similar to that considered in Anand. For reasons I have already given, the seeking of a police check only a short time after the making of the applicant’s visa application is no answer to the language of cl 485.213, which, as the primary judge correctly observed, deploys an objective test which is either satisfied or not satisfied. Before me, other than expressing that she had made an honest mistake, which I accept, the applicant did not contend that she had complied with the mandatory terms of cl 485.213. It follows that this third ground lacks sufficient merit.
I finally note that before me the applicant again sought an adjournment to obtain legal advice. In this matter the decision of the learned primary judge was heard in February and handed down in April 2019. It is now August. The application for leave was filed in April. In my view, the applicant has had ample opportunity to obtain legal advice. Once again, it was not a lack of opportunity which has prevented the obtaining of legal advice and representation but, rather, a lack of money. Unfortunately for the applicant, that is no excuse. I refused to make the adjournment.
For the foregoing reasons, I am not satisfied that sufficient doubt has been established as to the correctness of the decision below. It follows that leave is refused with costs as agreed or assessed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward. Associate:
Dated: 3 September 2019
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