Boddu v Minister for Immigration
[2019] FCCA 879
•5 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BODDU v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 879 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Show Cause Hearing – skilled visa – application for an adjournment – application for leave to amend – failure to comply with cl.485.213 of Schedule 2 of the Migration Regulations 1994. |
| Legislation: Federal Circuit Court Rules, r.44.12 Migration Regulations 1994, cl.485.213, 485.223, 485.216 of Schedule 2 |
| Cases cited: Anand v The Minister for Immigration and Citizenship [2013] FCA 1050 |
| Applicant: | SRAVANTHI BODDU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1936 of 2017 |
| Judgment of: | Judge Blake |
| Hearing date: | 12 February 2019 |
| Date of Last Submission: | 6 March 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 5 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | None |
| Advocate for the First Respondent: | Ms Robertson |
| Solicitor for the First Respondent: | Mills Oakley |
ORDERS
The Application filed on 7 September 2018 and amended on 27 February 2019 be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.
The Applicant pay the First Respondent’s costs in the amount of $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1936 of 2017
| SRAVANTHI BODDU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 11 August 2017. In that decision, the Tribunal affirmed a decision of a delegate to the Minister not to grant the Applicant a Skilled (Provisional) Class Visa (‘the Visa’).
The matter came before the Court as a Show Cause Hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (‘the Rules’). The question before this Court is whether the Applicant has raised an arguable case that the decision of the Tribunal is affected by jurisdictional error.
I have decided to dismiss the application for judicial review. My reasons for doing so are set out below.
The hearing on 12 February 2019, the request for an adjournment and to amend the Application
The Applicant made her Application to this Court on 7 September 2017.
On 16 May 2018, Registrar Burns listed the Application for a Show Cause Hearing pursuant to r.44.12 of the Rules. The matter was initially set down for Hearing on 19 November 2018 but was subsequently relisted to 12 February 2019. Registrar Burns made Orders, among other things, requiring the Applicant to file and serve 28 days before the hearing any amended application, any supplementary Court Book, and any written submissions. The Applicant did not file any material pursuant to these Orders.
On 12 February 2019, the matter proceeded as a Show Cause Hearing before me. The Applicant appeared in person. She sought an adjournment to seek legal advice. During the course of an exchange with the Applicant, the Applicant also submitted that she did not have a copy of the Court Book that had been filed by the Minister on 7 March 2018.
Counsel for the Minister indicated to the Court that a copy of the Court Book had been served by mail and sent to the Applicant’s address for service on 7 March 2018. In the course of the Hearing, it became apparent that the Applicant had changed her address in January 2018, but did not update her address for service until 16 May 2018.
At the Hearing on 12 February 2019, I noted that the Applicant has therefore had plenty of time to seek advice. In the circumstances, I proceeded to hear the matter. To take account, however, of the fact that the Applicant had not seen the Court Book, I made Orders permitting the Applicant to file any further written submissions she may wish to make by 27 February 2019. I also made an Order granting the Minister leave to file a reply to any submissions that may be received by the Applicant.
On 27 February 2019, the Applicant filed an affidavit and further submissions. In the affidavit sworn on 27 February 2019, the Applicant, among other things, says:
a)that she was unwell for much of 2018 which prevented her from seeking advice or amending her application before this Court; and
b)that at the Hearing on 12 February 2019, she sought leave to amend her application, and now seeks leave to amend her application. The amended Application is annexed to her affidavit.
At the Hearing, the Applicant did not seek leave to file an amended application. What the Applicant sought was an adjournment to obtain legal advice. Nevertheless, in written submissions filed on 6 March 2019, the Minister indicated that he did not oppose leave being granted to the Applicant to rely on her amended application.
In the circumstances, I grant leave to the Applicant to rely on the amended Application annexed to her affidavit filed on 27 February 2019.
Background
As an applicant for the Visa, the Applicant was required to, among other things, satisfy cl.485.213 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). At the time the visa application was made, cl.485.213 of Schedule 2 was in the following terms:
485.213
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.
The Applicant submitted her application for the Visa online on 18 January 2017. The visa application form required the Applicant to answer the following question
‘Have 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?’
To this question, the Applicant answered ‘No.’
On 4 February 2017, subsequent to the filing of the application for the Visa, the Applicant applied and paid for an Australian Federal Police (‘AFP’) Check. She was issued with an AFP complete disclosure certificate on 6 February 2017. On 23 March 2017 and 21 July 2017, the Applicant provided to the Tribunal copies of the AFP Check and the Complete Disclosure Certificate issued to her on 4 and 6 February 2017 respectively.
On 15 March 2017, a delegate of the Minister refused to grant the Visa to the Applicant because the Applicant had not satisfied the requirements of cl.485.213 of Schedule 2 to the Regulations.
On 23 March 2017, the Applicant lodged her application for review with the Tribunal. The Applicant attended a hearing at the Tribunal on 9 August 2017. The Applicant was represented by her migration agent.
On 11 August 2017, the Tribunal affirmed the decision of the delegate not to grant the Visa. The Tribunal identified that the issue before it was whether the Applicant met the requirements of cl.485.213 of Schedule 2 to the Regulations which required the Applicant to provide evidence, at the time of making her visa application, that she had applied for an AFP check during the 12 months immediately before the day the visa application was made.
The Tribunal was not satisfied that the Applicant had complied with cl.485.213 of Schedule 2 to the Regulations. As it had no power to waive the operation of cl.485.213, the Tribunal concluded that the Applicant did not satisfy the criteria for the grant of the Visa and affirmed the Delegate’s decision.
The Application for judicial review
The show cause provisions of the Rules are in the following terms:
44.12 Show cause Hearing
(1)At a hearing of an application for an order to show cause, the Court may:
(a)if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; or
(b)if it is satisfied that the application has raised an arguable case for the relief claimed – adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the Application as are specified by the Court; or
(c)without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the Application.
(2)To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.
The question before this Court is whether the Applicant has raised an arguable case that the decision of the Tribunal is affected by jurisdictional error.
The ground and particulars set out in the Amended Application are as follows:
1.The Tribunal erred on the ground that it misconstrued or misapplied cl 485.213 (b) of the Sch 2 to the Migration Regulations 1994 (Cth)
Particulars
1.1At the time of her application, cl.485.213 required that the application be accompanied by evidence that the applicant had applied for an Australian Federal Police check in the last 12 months.
1.2The applicant submitted her application on 18 January 2017 and applied for the Australian Federal Police check on 4 February 2017.
1.3The Tribunal reasoned that because the applicant did not provide evidence with her application that she had applied for a police check in the proceeding (sic) 12 months, the applicant could not and did not meet cl.485.213.
1.4In adopting this reasoning, the Tribunal failed to ask itself whether a police check provided after the date of application was temporal in accordance with the approach required by law.
1.5The Tribunal misconstrued or misapplied cl 485.213.
At the Hearing on 12 February 2019, the Applicant stated, among other things, that:
‘…I have – know few cases which is similar to me. And the tribunal and the AAT, they made small errors in – when they were doing – when they were- when they were doing the application or whatever it may be, but there should be some errors. So with the proper lawyer guidance, so I might argue this case...’[1]
[1] Tr. p.11, l.24-28
In her written submissions filed on 27 February 2019, the Applicant refers to the decision of the Federal Court of Australia in Anand v The Minister for Immigration and Citizenship [2013] FCA 1050. In that case, the Federal Court held that evidence of an AFP check could be supplied after the application for a visa, provided the evidence had a temporal connection with the application. The Applicant contends that the Tribunal failed to ask itself whether, in the circumstances of this case, the late provision by the Applicant of the AFP check provided a sufficient temporal connection to meet the requirements of cl.485.213.
The Minister submitted that the ground of review does not raise an arguable case. The Minister submits there are two problems with the contentions advanced by the Applicant:
a)in Anand, the Federal Court was dealing with a differently worded provision. The relevant clause at that time did not include the words ‘when the application was made’; and
b)the judgment in Anand was concerned only with the words ‘accompanied by’. This matter is distinguishable from Anand because in the matter before this Court, it is clear the application for the AFP Check was made after the Visa Application was made.
In light of the above, the Minister says the Tribunal was not required to ask itself whether there was a sufficient temporal connection between the making of the visa application and the submission of the AFP check, because the evidence supplied by the Applicant indicated she had applied for an AFP check after she applied for the visa, and was therefore unable to meet the requirements of cl.485.213.
Clause 485.213 is in mandatory terms. It requires that when an application for a visa is made, the application be accompanied by evidence that an applicant or relevant others had applied for an AFP check during the 12 months immediately before the day the application is made.
In Khan v Minister for Immigration and Border Protection [2018] FCAFC 85, the Full Court of the Federal Court was required to consider cl.485.223 of the Regulations. That provision provided as follows:
‘When the application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.’
In Khan, the applicant had submitted a Visa application on 15 March 2016. He applied for his skills assessment some two months later on 13 May 2016. The decision of the delegate was made on 16 May 2016. The applicant was required to make another application for a skills assessment because of a deficiency in his existing application and he did so on 17 May 2016. A favourable skills assessment was then made on 27 May 2016.
The Full Court in Khan considered these facts and the meaning of the term accompanied by. The Full Court among other things, reviewed the decision in Anand. The Full Court then stated that cl.487.216 of the Regulations establishes an objective temporal test. The Court also noted that whether or not there was some flexibility in the test (as commented on in Anand), nothing in Anand permits any temporal requirement to import notions of fairness so as to avoid what might otherwise have been an apparently harsh outcome for the Visa applicant.
The Full Court stated then that the responsibility for obtaining the evidence is that of the Visa applicant, and not the Minister. While the applicant’s objective reason for applying for a Visa on the day that he did was noted, the Full Court stated that nothing in the text, context or purpose of cl.485.223 of the Regulations contemplated considerations of that kind to give effect to the inquiry as to whether, objectively, the application was accompanied by the evidence. On that basis, the Court dismissed the appeal.
It is to be observed that Khan is a decision of the Full Court that comes after the decision in Anand. It is also to be observed that the Full Court construed strictly the requirement as to the timing in cl.485.223 of the Regulations and denied relief sought in circumstances where the skills assessment was submitted two months after the visa application.
Turning to Anand, which is relied on by the Applicant, an application for a visa was made on 9 March 2009. The application recorded that the applicant had not made the police check application. However, he had applied for the police check on 27 February 2009, prior to his application for a visa being submitted. The visa application was refused by a delegate of the Minister on the basis that the relevant regulation in existence at the time had not been complied with. Clause 487.216 of Schedule 2 to the Regulations at that time provided as follows:
487.216 The application is accompanied by evidence that:
(a) the applicant; and
(b) each person included in the application who is at least 16;
has applied for an Australian Federal Police check during the 12 months immediately before the day when the application is made.
The Federal Court in Anand accepted that the words accompanied by were construed too narrowly, and that a police check application could be supplied after the visa application was lodged. The Court stated, however, that there needed to be some temporal connection between the supply of the police check and the lodging of the application. Importantly, in Anand, the Court found there was no temporal connection, notwithstanding the application for the police check was made prior to the visa application. The temporal connection was not made out given approximately five months had passed between the making of the visa application and the receipt of the AFP check.
Both of the decisions above do not assist the Applicant. It is clear from the Full Court’s reasoning in Khan that the test is an objective one. It is also clear that while there might be room for there to be a temporal connection between the making of the Visa application and the filing of the relevant evidence, it is impermissible to import notions of fairness when considering that temporal requirement. The acquisition of the skills assessment some two months after the making of the visa application did not give rise to any temporal connection.
The Applicant in this matter also confronts a further difficulty. In Anand, the application for the police check was made prior to the making of the visa application. It could therefore at least be argued that the applicant in Anand had applied for a police check in the 12 months before the application was made. That situation does not arise here. The facts are plain. The application for the AFP Check was made after the application for the Visa was submitted.
In light of the above, I agree with the submission of the Minister that the Tribunal did not need to consider whether there was a sufficient temporal connection between the evidence supplied by the Applicant after she had made her visa application.
Having considered all the material, and the submissions, I find that the Applicant has not raised an arguable case for the relief claimed. In those circumstances, the Application is dismissed.
Costs
The Minister seeks an order for costs in a fixed amount consistent with the scale contained in the Rules.
The Applicant contends that this is a case in which it is appropriate not to order costs. She points to the decision of this Court in Seghal v Minister for Immigration and Anor [2018] FCCA 2587. In that case, the Court decided not to order costs.
I have considered Seghal and the facts of this matter. I am not persuaded that the facts here support a conclusion that the Applicant should be relived from paying costs. I will order costs consistent with the scale.
I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of Judge Blake
Date: 5 April 2019
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