Gayam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 434
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gayam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 434
File number: MLG 1910 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 3 June 2022 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – refusal to grant Skilled Provisional (Class VC) (Subclass 485) visa – where applicant did not satisfy mandatory time of application criteria for visa - whether applicant was afforded procedural fairness – whether Tribunal engaged in an improper exercise of power – no jurisdictional error – application dismissed Legislation: Constitution s 75(v)
Migration Act 1958 (Cth), ss 46, 65, 360, 476, 477
Migration Regulations 1944 (Cth) cl 1229 in Schedule 1, cl 485.213 in Schedule 2
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of hearing: 26 May 2022 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr A Cunynghame Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 1910 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAKOSH REDDY GAYAM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
3 JUNE 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The application before the Court is an application under s 476 of the Migration Act 1958 (Cth) (Migration Act) filed on 2 September 2017.[1] The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 11 August 2017. The Tribunal affirmed a decision made by a delegate of the Minister not to grant the applicant a Skilled Provisional (Class VC) (Subclass 485) visa (visa).
[1] The application was electronically lodged after 4:30pm on 1 September 2017 and is deemed to have been filed on 2 September 2017, pursuant to r 2.05(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
For reasons I explain below, I find that there is no jurisdictional error in the Tribunal decision, and I dismiss the application to this Court.
BACKGROUND
The applicant is a non-citizen who arrived in Australia in 2014 as the holder of a student visa. He applied for the visa the subject of this application on 19 December 2016.
In the visa application, in response to the 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?’ the applicant responded, ‘No’.
The applicant applied for a police check on the same day he filed his application, namely, 19 December 2016, and he subsequently provided a standard disclosure police certificate dated 20 December 2016 to the Department.
On 23 March 2017 a delegate of the Minister refused to grant the applicant the visa. The delegate was not satisfied that the applicant met cl 485.213 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) because he had not applied for a police clearance during the 12 months immediately before the day he filed his application.
On 27 March 2017 the applicant lodged an application to the Tribunal for review of the delegate’s decision.
The applicant attended a hearing to give evidence and present arguments to the Tribunal on 9 August 2017.
On 11 August 2017 the Tribunal affirmed the delegate’s decision.
TRIBUNAL DECISION
The Tribunal identified that the issue for its consideration was whether the applicant satisfied the requirements of cl 485.213 in Schedule 2 to the Regulations, which required that when the visa application was made it was accompanied by evidence that the applicant and each person in the application who is at least 16 years of age had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made.
The Tribunal observed that the wording of cl 485.213 clearly required that a visa application be accompanied by evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made, and in this case, the phrase ‘12 months immediately before the day the application is made’ means the 12 month period between 18 December 2015 and 18 December 2016. It did not include the day that the applicant lodged the visa application itself, namely, 19 December 2016.
The Tribunal also identified that the wording of cl 485.213 required the evidence of the application for an Australian Federal Police check accompany the visa application when it was made. The Tribunal was not satisfied that the factual circumstances indicated that the applicant had provided the evidence it needed to accompany his visa application at the time of the application. The Tribunal made the following findings of fact:
(a)the applicant lodged his application for a subclass 485 visa online on 19 December 2016;
(b)in the application, the applicant answered ‘no’ to the question regarding whether he had applied for an Australian Federal Police check during the 12 months before he lodged his visa application, and he did not provide any documentary evidence to the contrary;
(c)the applicant applied for an Australian Federal Police check on 19 December 2016 and was issued with a standard disclosure certificate on 20 December 2016;
(d)the Australian Federal Police issued the applicant a complete disclosure certificate on 25 July 2017;
(e)the applicant provided evidence to the Department that he had applied for his Australian Federal Police check on 9 February 2017; and
(f)on 3 August 2017, the applicant provided to the Tribunal a copy of the Australian Federal Police complete disclosure certificate issued to him on 25 July 2017.
The Tribunal was not satisfied that the applicant’s visa application was accompanied by evidence that he had applied for an Australian Federal Police check during the 12 months immediately before the day when his application was made. He therefore did not meet the requirements of cl 485.213 and did not meet the criteria for the grant of the subclass 485 visa.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed on 2 September 2017, which is within 35 days of the date of the Tribunal decision as required by s 477(1) of the Migration Act. The application sets out nine grounds of review, which are reproduced without alteration:
1.The Department had created a "Flawed Online 485 Visa Application Systems which has "PROGRAMMING AND CODING ERRORS"
a.There is a fault in the Online Application Module since the applicant declared “No” to the question the DIBP Online system should have prevented the applicant from going ahead to the next page
b.Since this is a mandatory requirement at time of lodgement criteria for the 485, there is a design fault in the 485 application which allows applicants to go ahead and lodge even though they have selected no in the mandatory criteria
c.In the DIBP refusal letter the case officer assessment on page 2 "Says the applicant declared "YES" which is Incorrect
d.Case officer has not checked the ONLINE 485 submitted by the applicant
e.The Department is responsible to provide an online application module which can be used by all applicants by answering the questions correctly
f.In the above situation, the applicant is not an immigration expert or an agent and depended on the DIBP online process to lodge his application
g.He has correctly declared NO which should have stopped the application from proceeding further and not allowed him to make the payment
As per clause 485.213 it was a mandatory requirement that the applicant had applied for an Australian Federal Police Check during the 12 months immediately before the application was made
•The applicant has declared NO on the 485 Online Application
•As he had applied for the Federal Police Clearance on 19/12/2016
•The Online application should not have allowed the applicant to proceed since applicant declared NO and this was a mandatory requirement by the DIBP
2.The department case officer has incorrectly stated that applicant has selected yes - case officer has not even checked the online application questions
3.That a breach of natural justice occurred in connection with the making of the decision by the department
4.That the applicant was denied procedural fairness in connection with the making of the decision
5.That procedures that were required by law to be observed in connection with the making of the decision were not observed
6.That the making of the decision was an improper exercise of the power conferred on the enactment in pursuance of which it was purported to be made
7.The Tribunal in its refusal dated 11/08/2017 under No 21 has made a jurisdictional error by not accepting the evidences of the technical errors which has been generated from the system provided by the DIBP
8.The Tribunal has under points 23, 24, 25 made a jurisdictional error by not accepting the facts of the DIBP Online system error even though it has both the substantive and procedural powers that could be exercised
9.The Tribunal has made a jurisdictional error (refer no 24) by accepting the fact that a valid application has been made
a.The application itself cannot be a valid application as the applicant answered the mandatory question stating he has not applied for the AFp
b.This mandatory answer of No should have stopped the application from proceeding further
c.The department should not have collected the 485 Fees and if there was a system error they cannot make it a valid application as it the mandatory questions answered were not accepted by the DIBP system
Pursuant to an Order made by Judge Lucev on 8 October 2021, the applicant was required to file any amended application, affidavit, supplementary court book and submissions by 8 December 2021. The applicant did not file any documents in accordance with the Order of Judge Lucev. The Minister filed submissions on 3 February 2022.
The only relief sought by the applicant in his application as filed is an order that the decision of the Tribunal be quashed. The Court has the same jurisdiction in migration matters as the High Court has pursuant to s 75(v) of the Constitution. This does not include matters in which only a writ of certiorari is sought. At the hearing of this matter, I granted leave to the applicant to orally amend his application to also seek a writ of mandamus. This is sufficient to bring the matter within the Court’s jurisdiction.
CONSIDERATION
Jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In order to be entitled to relief, the applicant must establish that the Tribunal decision is affected by jurisdictional error.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA), where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
To amount to a jurisdictional error, any error by the Tribunal must be material, in the sense that the error could realistically have deprived the applicant of the opportunity of a successful outcome: SZMTA at [45].
Grounds 1, 7, 8 and 9
Grounds 1, 7, 8 and 9 are interrelated and it is convenient to deal with them together. In ground 1, the applicant repeats a submission that he made to the Tribunal which is to the effect that the online application form that he completed in applying for the visa should have been designed in a way that did not allow him to submit the application if he answered a question in a way that indicated he did not meet a mandatory time of application criteria. By grounds 7 and 8, the applicant asserts that the Tribunal made a jurisdictional error by not accepting this submission, and by ground 9, the applicant asserts that the Tribunal erred by finding that his visa application was valid. In advancing these grounds, the applicant directs attention to [21], [23], [24] and [25] of the Tribunal’s reasons.
At [21] of its reasons, the Tribunal accurately summarised the submission advanced by the representative. This paragraph should also be read in the context of [20]. In these two paragraphs, the Tribunal said (footnotes omitted):
20.In the present case, and contrary to the delegate’s finding, the applicant indicated in his online visa application form that he had not applied for an Australian Federal Police check during the 12 months immediately before the day on which he made his application. He expressly confirmed this fact during his oral evidence before the Tribunal.
21.Accordingly, and based on this fact, the applicant’s representative argued in his written submission to the Tribunal on 3 August 2017 that the Department had created a flawed online subclass 485 visa application form. In particular, the representative submitted that the online visa application form allowed the applicant to complete the application without providing any error message when the applicant answered “no” to the question regarding the Australian Federal Police check, a mandatory visa requirement. The representative stated that, as the applicant did not have the funds to engage a registered migration agent in December 2016, the online application form should not have allowed him to lodge the visa application once he answered “no” to this mandatory requirement.
The Tribunal ultimately then considered that this was not the central issue for its determination. At [23]-[25] of its reasons, the Tribunal said (footnotes omitted):
23.The Tribunal notes that it may, for the purposes of a review, exercise all the powers and discretions that are conferred by the Act on the person who made the primary decision. The Courts have on occasion described this as the Tribunal ‘standing in the shoes’ of the primary decision-maker. In particular, the High Court in Minister for Immigration and Citizenship v SZKTI [(2009) 238 CLR 489; [2009] HCA 30] found that because subsection 349(1) confers upon the Tribunal ‘all the powers and discretions’ conferred on the primary decision-maker, those powers - both substantive and procedural - are exercisable by the Tribunal.
24.It is also well established that in reviewing a decision to refuse to grant a visa, for which a valid application has been made pursuant to section 65 of the Act, the central question for the Tribunal is whether it is satisfied that the criteria prescribed by the Act and Regulations for the particular class of visa are met.
25.As a result, any errors that may emerge from the delegate’s primary decision record are immaterial to the task before the Tribunal, which in this case is to assess whether the applicant meets the requirements of clause 485.213.
The Tribunal also further considered the submission regarding flaws in the online visa application form at [40] and [41] of its reasons, where it said (footnotes omitted):
40.The Tribunal has considered the representative’s submission that the online visa application form should not have allowed the applicant to lodge the visa application once he answered “no” to the question regarding the Australian Federal Police check.
41.However, even if the Tribunal accepts the representative’s arguments regarding the flawed nature of the online visa application process, these submissions, in effect, relate to the processes put in place by the Department and issues of estoppel, rather than whether the applicant actually meets clause 485.213. As such, they run counter to the general principle that misleading or incorrect advice by the Department and/or its officers (in whatever form it takes) does not give rise to an estoppel, or exempt an applicant from complying with statutory requirements. As noted above, the wording of clause 485.213 means that the Tribunal has no discretion to find in the applicant’s favour on the basis of the circumstances he has put forward and, the Tribunal has no alternative but to affirm the decision under review.
The Tribunal was correct in its identification that the central issue before it was whether the applicant met the criteria for the visa and that the Tribunal could not waive the mandatory criteria. There is no jurisdictional error in the way that the Tribunal has addressed the submission put forward by the applicant’s representative in relation to the alleged flaws in the online visa application system. To the extent that the applicant asserts in ground 9 that the flawed online visa application system has resulted in an invalid application, the submission is rejected.
The applicant’s submission is essentially that the visa application could not be valid if he answered that he had not applied for the relevant Australian Federal Police certificate because the system should have prevented the application from proceeding further and the Department should not have accepted the fee payment. I accept the Minister’s submission in response that this ground essentially misunderstands what amounts to a ‘valid application’ by confusing the acts of applying for the visa and satisfying the criteria for the visa. The fact that the applicant did not meet a mandatory time of application criteria at the time he submitted his application does not mean that the application itself is invalid. Rather, it means that the applicant could not meet the criteria for the visa. The requirements for the visa application to be valid were prescribed by s 46 of the Migration Act and cl 1229 of Schedule 1 to the Regulations. Nothing in s 46 or cl 1229 requires that an applicant meet all mandatory time of application criteria for the visa application to be valid. There is nothing before the Court that would cause me to believe that the application itself was not a valid application for the visa.
Upon the making of a valid application for a visa, the delegate was required under s 65 of the Migration Act to make a decision about whether the applicant should be granted the visa. This turned on whether the applicant met the criteria for the visa. The Tribunal upon review was also required to consider for itself whether the applicant met the criteria for the visa. It did so and found that the applicant could not satisfy the criteria because he did not meet the mandatory time of application criterion in cl 485.213. The Tribunal has performed its obligations under the Migration Act.
No jurisdictional error is established by grounds 1, 7, 8 or 9.
Ground 2
By ground 2, the applicant asserts that the delegate made a mistake by incorrectly stating in the delegate’s decision record that the applicant selected yes to the question about the police clearance. Nothing turns on this error. The Court has no jurisdiction to review the delegate’s decision, because it is a primary decision: see ss 476(2)(a) and (4)(a) of the Migration Act. In any event, the Tribunal correctly identified at [20], [22] and [33] of its reasons that the applicant ticked ‘no’ to the relevant question on his visa application form. It is the Tribunal decision that is the subject of the judicial review application to this Court.
Ground 2 is not established.
Grounds 3, 4 and 5
Grounds 3, 4 and 5 all assert that the applicant has been denied procedural fairness. To the extent that ground 3 asserts a denial of procedural fairness in relation to the delegate’s decision, the ground cannot proceed because, as indicated above, the Court does not have jurisdiction to review the delegate’s decision. I otherwise assess grounds 3, 4 and 5 on the basis that they assert a denial of procedural fairness by the Tribunal. The applicant did not in his written application, or in his oral submissions to the Court, explain the basis on which he asserts that the Tribunal denied him procedural fairness.
There is no evidence before the Court to suggest that the Tribunal denied the applicant procedural fairness in this matter. In circumstances where the Tribunal was not satisfied based on the written materials before it that it could make a decision in the applicant’s favour, it was required to invite the applicant to attend a hearing pursuant to s 360 of the Migration Act. On 18 July 2017 the Tribunal sent to the applicant an invitation to attend a hearing on 9 August 2017. I am satisfied that the invitation was properly sent to the applicant at his representative’s email address and that he was given adequate notice of the hearing.
The applicant’s representative provided a submission to the Tribunal and the Tribunal took this submission into account. The applicant attended the hearing on 9 August 2017 and had the opportunity to give evidence and to present arguments to the Tribunal. There is no suggestion to the Court that the applicant was unable to participate in the Tribunal hearing in any way. The applicant was clearly on notice of the dispositive issues from the delegate’s decision. I am satisfied that the Tribunal afforded procedural fairness to the applicant.
Grounds 3, 4 and 5 of the application do not establish jurisdictional error and are dismissed.
Ground 6
By ground 6, the applicant asserts that the making of the decision was an improper exercise of power. The Tribunal correctly identified its role at [23] and [24] of its reasons which are extracted above. The role of the Tribunal was to review the delegate’s decision, exercising the powers and discretions of the delegate, and the central question for the Tribunal to determine was whether the criteria for the grant of the visa were met. The Tribunal carried out its function in accordance with this understanding. No improper purpose has been identified, and I am satisfied that the Tribunal has exercised its powers for the express purpose for which they were conferred on it under the Migration Act.
Ground 6 is not established.
Other matters raised by the applicant at the hearing
The oral submissions made by the applicant at the hearing were mainly directed to grounds 1, 7, 8 and 9 and have largely been addressed in the analysis above. There were, however, some additional matters raised by the applicant in his oral submissions that do not directly relate to the grounds of application.
The applicant reiterated on a number of occasions that if he had known that he had to seek the police clearance the day before he lodged his application, he would have done so. He had enough time before his visa expired and could have taken the extra time to apply for a police clearance the day before he filed his application. Unfortunately for the applicant, whether or not he knew of the criteria is irrelevant to whether he met the criteria for the visa. The applicant did not challenge the Tribunal’s finding that the 12 month period within which he was required to apply for the police clearance ended the day he lodged his application. In circumstances where the applicant did not apply for the police check until the day he lodged his application for a visa, he could not meet the mandatory time of application criteria.
The applicant also referred to some misunderstanding as to whether he was required to have a standard disclosure certificate or a complete disclosure certificate from the Australian Federal Police. Similar submissions had been made to the Tribunal, and the Tribunal addressed these submissions in its reasons. The Tribunal observed that the wording of cl 485.213 does not specify which of the police checks is required for the purposes of the provision. The Tribunal further noted that there was nothing of particular assistance on this issue in the PAM3 policy guidelines. The Tribunal acknowledged that it was aware of a Departmental practice where delegates invite applicants to obtain a complete disclosure certificate in circumstances where they have an existing standard disclosure certificate.
The Tribunal observed that in the present case, the applicant had been issued with both of these different types of certificates, and the Australian Federal Police confirmed to the Tribunal on 3 August 2017 that the applicant had been genuinely issued with a standard disclosure certificate on 20 December 2016. The Tribunal accepted that this was the case. Ultimately, however, nothing turned on this in the Tribunal decision because of the Tribunal’s finding that the applicant had not applied for any police check during the 12 months immediately before he made his application on 19 December 2016. In these circumstances, nothing turned on the issue of whether the applicant was required to provide a standard disclosure certificate or a complete disclosure certificate. No jurisdictional error arises on this basis.
CONCLUSION
I have found that there is no jurisdictional error in the Tribunal decision. It follows that the application to this Court must be dismissed.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 3 June 2022
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