Chawala v Minister for Immigration

[2020] FCCA 729

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAWALA v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 729

Catchwords:
MIGRATION – Application for judicial review – Skilled (Provisional) (Class VC) visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.351
Migration Regulations 1994 (Cth), cl.485.213

Applicant: SHUBHAM CHAWALA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTUCULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1853 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: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. There be no Order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1853 of 2018

SHUBHAM CHAWALA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

Overview

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 6 June 2018.  The Tribunal affirmed a decision of the delegate not to grant the applicant a Skilled (Provisional) (Class VC) visa. 

Background

1. The review application in this court was filed in June 2018 and listed before me for a Show Cause hearing, because it appeared on the face of the application that the applicant had no prospects of success.

2. This case falls into a category of which we have seen a number before the court: the pathos of the circumstances in these cases remains striking.

3. The applicant applied for his skills visa on 29 June 2017. As the applicant explained from the bar table (an explanation commonly heard and apparently correct), the applicant applied for his visa online using an online form generated by the Department. One of the questions in the form is a question asking whether or not the applicant had yet sought his police check, a mandatory requirement for obtaining a skills visa. The applicant selected no, which was quite honest and submitted the application. The application was accepted, processed and then refused shortly thereafter.

4. What the applicant was unaware of, was the precise terms of clause 485.213 of Schedule 2 of the Migration Regulations 1994 (Cth), which states:

   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.

5. The effect of this regulation is that an applicant for a skilled visa must have applied to the Australian Federal Police for a police check during the 12 months before they lodge their visa application and cannot remedy that at any time after the date of applying for the visa. 

6. It is a strange requirement given that the contents of the police check will not change no matter when it is applied for, that is, the police check document will show any past offences for which a person has been convicted whether one applies for it prior to the date of lodgement of the visa application or after that date.

7. Undoubtedly, in this case and others like it that I have seen, had the applicant received a warning on the computer screen that he had to apply for his police check from the Australian Federal Police prior to lodging the visa application, he would have gone and done that and then lodged his visa application. Unfortunately, the applicant was not aware of this regulation hidden deep within the very thick schedule of regulations and nor was he alerted to it by the online material. The applicant has since applied for and obtained his police check: see page 46 of the Court Book. There is nothing that has been put before me to indicate that the applicant would not have otherwise obtained his Skilled (Provisional) (Class VC) visa and that, in reality, the only difficulty he confronted was that he obtained his police check on 21 July 2017, not on a date prior to 29 June 2017.

The Tribunal hearing

1. When the application for review was lodged before the Tribunal in August 2017 the Tribunal granted the applicant a hearing in May 2018, the applicant had provided the Tribunal with his police check. The Tribunal set out in its decision:

   9. During the hearing, the applicant gave oral evidence that he applied for his visa by himself, and noted that the question regarding police checks was not a mandatory field. He stated that he submitted most of the required documents with his application, and that he was waiting for a call from the Department in relation to any outstanding documents. The applicant told the Tribunal that he had no time when making his application, and thought he would apply for the AFP check at a later date because the question on the application form did not make clear that it was a mandatory requirement; rather, it just asked the applicant to answer 'yes' or 'not' to the question of whether he had applied for an AFP check in the 12 months prior to lodging his visa application. The applicant told the Tribunal that his application was rejected straight away.

   …

   11. At the hearing, the representative further submitted that there is a misconception amongst the international student community that they can submit documents within 28 days of lodging a Subclass 485 visa application. He stated that international students spend a lot of time and money on their education in Australia, and that if they go home without work experience, all the skills gained during their studies will be "zero". He submitted that the applicant was in a desperate situation, that he is young, and that he will suffer in the future if he is not allowed to stay.

   …

   14. The applicant has acknowledged that he did not apply for an AFP check during the 12 months immediately before he made his visa application on 29 June 2017, and has indicated to the Tribunal that it was unclear to him from completing the on line visa application that applying for an AFP check prior to submitting his visa application was a mandatory requirement for the grant of a subclass 485 visa. The there is no evidence before the Tribunal that the applicant had applied for an AFP check during the 12 months immediately before the day on which he made his visa application.

2. As the Tribunal noted (at [15]), that it does not have any power to waive the requirements of clause 485.213, nor is it open to the Tribunal to extend the time within which that police check must be applied for. Ultimately, the Tribunal concluded that the applicant, therefore, did not meet one of the criteria for the visa, namely the criteria relating to the police check, and therefore, affirmed the decision of the delegate to refuse to grant the applicant a visa.

Application for judicial review

1. In the applicant’s judicial review application, the applicant sets out six grounds as follows:

   1. THE CLAUSE 485.213 OF SCHEDULE 2 HAS BEEN APPLIED INAPPROPRIATELY TO CONCLUDE THE REFUSAL OF VISA APPLICATION.

   2. THE ACTUAL ISSUE INVOLVED WAS NOT CONSIDERED APROPRIATELY. THERE IS NO ADVERSE FINDING OR POLICE RECORD AGAINST THE VISA APPLICANT. THE APPLICANT PASSES THE CHARACTER TESTS. HIS PAST AND PRESENT CONDUCT SHOWS THAT HE HAS GOOD CHARACTER. THE VISA APPLICANT WAS NEVER SENTENCED TO 12 MONTHS OR MORE IN PRISION, OR MULTIPLE SENTENCES THAT ADD UP TO MORE THAN 12 MONTHS IN PRISION.

   3. THE DELEGATE'S FAILURE TO GIVE AN OPPORTUNITY TO VISA APPLICANT BEFORE MAKING A DECISION AMOUNTS TO NON-OBSERVANCE OF THE PRINCIPLES OF NATURAL JUSTICE AS WELL SECTION 58 OF THE ACT.

   4. THE SERIOUS AND PROLONGED EFFECTS ON THE WELL BEING OF VISA APPLICANT WERE NOT KEPT UNDER CONSIDERATION AND DECIDED THE MATTER IN A PROCEDURAL MANNER.

   5. THE MERITS OF VISA APPLICATION AND REVIEW COULD PROPERLY BE TAKEN INTO CONSIDERATION TO DETEMINE A LEGAL ISSUE OF SOME IMPORTANCE.

   6. THE DETERMINATION OF APPLICATION HAS RESULTED IN UNFAIRNESS TO VISA APPLICANT.

2. The applicant before me was quite distressed that what appears to have been a minor matter of timing has left him without being able to obtain a visa that he has been working towards for some time; and in circumstances where he would, it seems, otherwise have received the visa, a pathway towards becoming a resident and potentially a citizen of Australia. The distress that he is experiencing is apparent from the nature of the grounds that he sets out.

3. Unfortunately, it is not a situation where it is open to me on a judicial review to conclude that there was a legal error by the Tribunal in affirming the delegate’s decision, as, technically, the applicant did not satisfy all of the visa criteria. The applicant was given a hearing. The Tribunal member considered his application. It does not appear to me that there was any other decision that the Tribunal member or delegate could make at law. The grounds do not raise a basis on which the applicant could succeed.

4. In these circumstances, I therefore find that the applicant’s application must be dismissed. 

5. It appears that the only potential remedy for the applicant at this stage is to make an application to the Minister under section 351 of the Migration Act 1958 (Cth) (‘the Act’) setting out the things that have occurred in this case and seeking the Minister grant the visa, even though there is a technical non-observance of one of the visa conditions.

6. I will ask that my associate provide to the applicant a copy of section 351 of the Act and I suggest to the applicant that when he prepares a letter to the Minister with the relevant documents, he attend upon a community legal service to have somebody read over his letter to ensure that he has included all of the relevant submissions and documents that the Minister’s office may need to consider in an application under that section. The formal orders of the court, however, must simply be that the application is dismissed.

Costs

1. In this application, the Minister has been successful. However, the circumstances giving rise to the application come about, it seems, entirely as a result of the nature of the webpage and online form that the Minister’s office provided, which, it seems to me, has already caused the applicant serious injustice. Whilst costs ordinarily follow the event, I am ultimately not persuaded that I should order that the applicant pay the Minister’s costs of this application at this point.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:  

Date:  31 March 2020