Kalra v Minister for Immigration - [2020] FCCA 387

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALRA v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 387

Catchwords:

MIGRATION – Application dismissed – genuine applicant for skilled visa – Australian Federal Police check – no jurisdictional error found – no requirement to comply with ministerial directions – time requirements of application not met – non-compliance with application criterion.

Legislation:

Migration Act 1958 (Cth), ss.46, 351, 476(1), 499(2A)
Migration Regulations 1994 (Cth), Schedule 1, Schedule 2

Cases cited:

Lafu v Minister for Immigration [2009] FCAFC 140
SZUQZ v Minister for Immigration and Border Protection [2015] FCA 1552
Telstra Corporation Ltd v Australian Competition & Consumer & Anor [2008] FCA 1758

Applicant:

ISHAN KALRA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 941 of 2017

Judgment of:

Judge McNab

Hearing date:

10 October 2019

Date of Last Submission:

8 November 2019

Delivered at:

Melbourne

Delivered on:

26 February 2020

REPRESENTATION

Counsel for the Applicant:

Mr Richardson

Solicitors for the Applicant:

Vernon Da Gama & Associates

Counsel for the Respondents:

Ms Roberts

Solicitors for the Respondents:

Mills Oakley

ORDERS

The Application filed 8 May 2017 be dismissed.
The First Respondent file and serve any submission regarding costs within 7 days of the date of this Order with liberty to the Applicant to file any submission regarding costs within 14 days of the date of this Order with the question of costs to be determined on the papers.
The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 941 of 2017

ISHAN KALRA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By Application filed 8 May 2017, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 13 April 2017. The Tribunal’s decision affirmed a decision of a delegate (‘the Delegate’) of the First Respondent (‘the Minister’) refusing to grant a Skilled (Provisional) (Class VC) visa (‘the Skilled Visa’). This proceeding is brought pursuant to section 476(1) of the Migration Act 1958 (‘the Act’).
The matter was heard on 10 October 2019, and the parties were given time to file further submissions. On 12 November 2019 the decision was reserved and the further submissions were considered on the papers.
This is a frustrating and difficult case because it appears on the material that the Applicant is a genuine applicant for a Skilled Visa and has sought to progress his application following instructions given by the Department of Immigration (‘the Department’).
In following these instructions the Applicant fell into error. The Applicant was given a document from the Department which stated:
If you are applying for temporary or permanent migration
For the Australian government to determine whether you are of good character, you might be asked to provide police certificates for each country you have lived in for 12 months or more, over the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 387
Decision Date: 26 February 2020

CaseChat Overview and Summary

The applicant, Mr Kalra, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of his Subclass 485 skilled visa application. The dispute centred on whether Mr Kalra had satisfied the requirements of clause 485.213 of the Migration Regulations 1994, which mandated that a visa application be accompanied by evidence of having applied for an Australian Federal Police (AFP) check within the 12 months immediately preceding the application. The Federal Court of Australia, constituted by Judge McNab, considered the applicant's claims and the Tribunal's findings.

The primary legal issue before the court was whether the AAT had erred in law by finding that Mr Kalra had failed to meet the requirements of clause 485.213. Specifically, the court had to determine if the Tribunal's interpretation and application of the clause, particularly concerning the timing of the AFP check application and the requirement for accompanying evidence, were legally sound. The court also considered whether the applicant's reliance on advice from a Departmental officer, which led him to believe he could apply for the AFP check on the same day as his visa application, constituted a jurisdictional error or a basis for ministerial intervention.

The court reasoned that while Mr Kalra had applied for the AFP check on the same day as his visa application, and not within the 12 months prior as required by clause 485.213, the Tribunal's finding that this non-compliance was fatal to his application was correct. The court noted that the applicant had also failed to provide evidence of this AFP check application at the time of lodging his visa application. Although the court acknowledged the applicant's submission that he had been misled by a Departmental officer and that the outcome might appear unfair, it found no jurisdictional error in the Tribunal's decision. The court concluded that the applicant had not met the express criteria of the regulation.

The application for judicial review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Due to the brevity of the Tribunal’s decision, I extract the Tribunal’s ‘Consideration of Claims and Evidence’ in full below:CONSIDERATION OF CLAIMS AND EVIDENCE7. The issue in the present case is whether the Applicant meets cl.485.213.Evidence relating to police checks8. Clause 485.213 requires that when the visa application was made, it was accompanied by evidence that the applicant, and 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.9. As recorded in the delegate's decision, a copy of which was provided with the review application, the applicant had declared in his visa application that he had not applied for an AFP clearance in the 12 months immediately before the day of application. Consequently the delegate found that he did not meet cl.485.213 and his subclass 485 visa application was refused.10. Prior to the hearing the applicant provided emails and a receipt which demonstrated that he had applied for an AFP check at 4.32 pm on 30 August 2016, through a company called Makesure, prior to his making his visa application which, the DIBP system records, was made at 5.32 pm on 30 August 2016. He also provided the AFP check in respect of him which was dated 31 October 2016.11. At the hearing the tribunal asked the applicant why he had responded "No" on his visa application form to the question "Have you applied ... In the last 12 months to the Australian Federal Police for a check of criminal records?" He claimed that he had tried to answer "Yes" but when he put in the date of the application the system rejected his response. He said he was unable to progress the application until he responded "No." The tribunal asked why, given an application date of 30 August 2016, the AFP check he provided was dated 31 October 2016. He responded that the form he completed had to be signed and sent by post to 'Makesure'. It was not until he received the delegate's decision that he realised something had gone wrong. He had contacted Makesure who told him they had not received the signed form and so had not progressed his application. This was done after the applicant provided another form.12. The tribunal noted the Regulations in this respect required he demonstrate that:• he had applied for a police check; and• that he had done so in the 12 months immediately before the day the application was made; and• evidence of that application accompanied the visa application.13. It observed that he had applied for the police check on the same day as his visa application, not within 12 months immediately before the day of his application. In addition his visa application had not been accompanied by any evidence of the application. It queried why he had not contacted the Department to explain his "No" answer and the lack of accompanying documentation. He responded that he thought things would just move forward and, when he got the police check and supplied it, that would resolve the matter. It was not until he got the decision that he realised his AFP check had not gone to the Department. 14. The tribunal further observed that although he had now supplied the AFP check, it did not overcome the requirements that evidence of this was required to accompany the application. In addition, it had not been made in the period immediately before the day, but on the same day, as his application. He told the tribunal that he had relied on the advice of a Departmental officer who had told him that he could apply for the AFP check on the same day. He gave the tribunal a copy of a DIBP document which stated under the heading If you are applying for temporary or permanent migrationFor the Australian government to determine whether you are of good character, you might be asked to provide police certificates for each country you have lived in for 12 months or more, over the last 10 years (calculated immediately before the time the visa application is lodged) ...(Tribunal's emphasis)15. As the applicant had filed his AFP check application before he lodged his visa application he had considered that he was in time. 16. The Tribunal accepts that the applicant may have been confused by this advice and gave him some further time to seek advice and/or provide any additional submissions or evidence in this respect.17. The Tribunal later received a statutory declaration from the applicant in which he reiterated his claims made at the hearing. He also attached a document which purported to demonstrate why he was unable to respond positively in his visa application to the question regarding his AFP check. 18. Based on the evidence before it, the Tribunal finds that:• the applicant made his subclass 485 visa application on 30 August 2016; • the application was not accompanied by any evidence that the applicant had applied for an AFP check and no evidence of it was provided to the Department;• prior to lodging his visa application, on the same day, he applied for an AFP check.• the applicant was given a satisfactory AFP check on 31 October 2016.19. On the basis of these findings, and having carefully considered all the evidence, the tribunal is not satisfied that the applicant meets cl.485.213 because he applied for his AFP check not in the 12 months immediately before the day of his visa application but on the day of his visa application. Further, no evid~:mce of his application accompanied the visa application. 20. Therefore the applicant does not satisfy cl.485.213.CONCLUSION21. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In following these instructions the Applicant fell into error. The Applicant was given a document from the Department which stated: If you are applying for temporary or permanent migrationFor the Australian government to determine whether you are of good character, you might be asked to provide police certificates for each country you have lived in for 12 months or more, over the last 10 years (calculated immediately before the time the visa application is lodged)[…] Acting on this advice, the Applicant applied online for an Australian Federal Police (‘AFP’) check at 4.32pm on 30 August 2016 through a company who processed such applications, and then made his visa application on the same day at 5.32pm. The application for a Skilled Visa was rejected on the grounds that the Applicant had not applied for a police check in the 12 months immediately before the day the application was made. For the reasons which follow I have concluded that the Application should be dismissed The detail of this Application is dealt with below but it does strike the Court as a case where Ministerial intervention may be appropriate to deal with what, on any measure of fairness, is an unfair result for the Applicant. The Minister’s submissions at [3]-[4], filed 26 September 2019, accurately and briefly outline the background of this matter:3. On 30 August 2016, the Applicant applied for a Skilled (Provisional) (Class VC) (Subclass 485) visa. At the time of the application, a criterion for the grant of the visa under cl 485.213 in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) required that when the application was made, it was accompanied by evidence that the Applicant had applied for an Australian Federal Police (AFP) check during the 12 months immediately before the day the application was made.4. On 25 October 2016, the delegate refused to grant the visa because the applicant had not provided evidence that he had applied for an AFP police check in the 12 months immediately preceding his visa application and so did not satisfy cl 485.213. The delegate noted that in the online visa application, the applicant declared that he had not applied for an AFP check in the last 12 months. The applicant is an Indian citizen.(citations omitted) I note that the reason the Applicant declared on the application that he had not applied for an AFP check in the last 12 months was because the electronic form that he was using did not allow him to record that he had applied for an AFP check on the same day as lodging the application. On 11 November 2016, the Applicant applied to the Tribunal for review of the Delegate’s decision.[1][1] CB 21. On 24 February 2017, the Applicant was invited to attend a Hearing.[2][2] CB 29 On 15 March 2017, the Applicant responded to the Hearing request, and attended the Hearing on 24 March 2017.[3] [3] CB 35 & 41. By an undated letter (which appears to have been supplied prior to the Hearing), the Applicant attached a receipt of his Application for an Australian Federal Police (‘AFP’) check. This receipt stated the application was made at 4.25pm on 30 August 2016[4] and that, an hour later, the Applicant submitted his Skilled Visa application (being 5.32pm on 30 August 2016).[5][4] CB 44[5] CB 43.