Kalra v Minister for Immigration
[2020] FCCA 387
•26 February 2020
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) |
| Cases cited: Lafu v Minister for Immigration [2009] FCAFC 140 |
| 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 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.
Background
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.
At the Hearing, the Applicant was given until 31 March 2017 to provide further submissions.
On 31 March 2017, the Applicant provided further information, restating that he had applied for his AFP check prior to applying for his Skilled Visa.
On 13 April 2017, the Tribunal affirmed the Delegate’s decision not to grant the Skilled Visa.
On 8 May 2017, the Applicant sought review of the Tribunal’s decision to this Court.
Tribunal’s decision
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 EVIDENCE
7. The issue in the present case is whether the Applicant meets cl.485.213.
Evidence relating to police checks
8. 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 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 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.
CONCLUSION
21. 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.
Grounds of review
The Applicant, by its Originating Application filed 8 May 2017 and Amended Application filed 24 October 2019, has three grounds of review:
1. My 485 application has been refused for not satisfying the 485.213 which states that application must be 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. I have been misguided by the departmental officer and also officer's piece of DIBP document has been ignored which clearly stated that:
"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 last 10 years (calculated immediately before the time the visa application is lodged) ... "
Hence, I strongly believe that my evidence has not been thoroughly considered by the Review Tribunal, though I presented further submissions and evidence as requested by the MRT; but they were never considered. Hence, I request to please give me a chance to go through judicial review and get court's review upon unfair refusal of my application.
2. The Tribunal failed to take into account a relevant consideration, namely the Procedures Advice Manual ("PAM 3" or "Guidelines").
3. The Tribunal failed to give proper weight to the relevant policies contained in the PAM 3.
Applicant’s submissions
The Applicant submits that the Tribunal failed to take into account relevant considerations, namely the Procedures Advice Manual (‘PAM3’ or ‘Guidelines’) and failed to give proper weight to the relevant policies contained in the PAM3. See [17] – [18] of the Applicant’s outline of submissions filed 24 October 2019.
At [14] of his submissions, the Applicant submits that the Tribunal was obliged under section 499(2A) of the Act to comply with any Ministerial Direction No.56 (‘the Ministerial Direction’), which in turn required the Tribunal to take into account the PAM3.
At [18] of its submissions the Applicant cites Judge Driver’s decision in SZUQZ v Minister for Immigration and Border Protection [2015] FCA 1552 (‘SZUQZ’) and Lafu v Minister for Immigration [2009] FCAFC 140 (‘Lafu’) in submitting:
18. Once the Tribunal determines that the PAM 3 is relevant to a matter, consideration of the guidelines then becomes mandatory.
Also at [18], the Applicant cites Telstra Corporation Ltd v Australian Competition & Consumer & Anor [2008] FCA 1758 and SZUQZ:
The process of consideration must involve “an active intellectual process’ directed at the nominated subject-matter”. The Tribunal cannot avoid that determination by silence.
The Applicant says that the Tribunal ought to have given consideration to Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) and General Guide A of the Guidelines because they were so obviously relevant to the subject matter of the Application before it. At [21] the Applicant submits:
21. In the circumstances, where the application was clearly deficient on its face it seems entirely unreasonable that Kalra did not receive an immediate notification from the Minister regarding this. Whilst Kalra could only use the response ‘no’ to the AFP police check question in the online application on 30 August 2016, this should have been instantly identified by the Minister.
And at [23]:
Indeed had the Minister informed Kalra of the defect in his application and the consequences, then undoubtedly steps would have been taken to rectify the situation. Kalra would have submitted another application, perhaps even on the following day, the effect of which would have made the application compliant with the criteria under cl. 485.213 of the Regulations.
The Applicant argues that despite the Tribunal’s ‘passing reference’ to the Guidelines, the Tribunal ‘was in effect silent on the question of whether or not the Guidelines were relevant’,[6] and that in failing to give proper regard to PAM3 the Tribunal did not discharge its statutory obligation to take into account the Ministerial Direction, pursuant to section 499(2A) of the Act.
[6] (AS [24])
First Respondent’s submissions
The First Respondent submits that a jurisdictional error has not been demonstrated and that the Application should be dismissed.
With regards to jurisdiction, the First Respondent submits that because the Applicant has not sought a writ of mandamus or a prohibition or an injunction against the Tribunal (and has only sought a writ of certiorari for Tribunal’s decision to be quashed), he has failed to properly invoke the jurisdiction given to this Court by section 476(1) of the Act.[7]
[7] RSS[4]
With regards to the Ministerial Direction, the First Respondent says that it related to the consideration of Protection visa applications and did not impose any obligation on the Tribunal to consider PAM3 for the purposes of conducting a review under Part 5 of the Act.[8]
[8] RS [9]
The First Respondent submits at [9] of its submissions that the Applicant’s reliance on cases such as SZUQZ and Lafu in support of the proposition that the Tribunal was required to consider the PAM3 is also misplaced because, in those cases, the Tribunal was required to comply with Ministerial Directions.
The First Respondent also submits that the Applicant’s understanding of the requirements for making a subclass 485 application are misguided, and at [11] of its supplementary submissions states:
The requirements for making a valid Subclass 485 application were set out in s 46 of the Act, reg 2.07 and item 1229 of Schedule 1 of the Migration Regulations 1994 (Cth) (the Regulations). The criteria the applicant was required to meet in order to be eligible for the grant of a Subclass 485 visa were located in the clauses contained in Part 485 of Schedule 2 of the Regulations
Moreover, the First Respondent submits at [13] that the Tribunal correctly proceeded on the basis that the Applicant made a valid application for the Skilled Visa but did not meet the time of application criterion in the regulations: ‘Accordingly, the instructions contained in the PAM3 in relation to the invalid visa applications were plainly irrelevant to the issues arising on the review.’
The First Respondent at [15] notes that the policy extracted in the Applicant’s submissions at [16] is from the current version of the PAM3, and that the previous versions of the PAM3 that were in effect as at the date of the Delegate’s decision and Tribunal’s decision did not contain those instructions:
There can be no error by the Tribunal in failing to have regard to a Departmental policy that did not exist at the time of its decision.
Consideration
In my view there is no error demonstrated on the part of the Tribunal in reaching the decision it did, having regard to the provisions of the relevant regulations which are summarised in the decision itself.
Because the Applicant followed the instruction in information supplied by the Department, he considered that he should apply for a police check immediately prior to lodging his Skilled Visa application. The regulations require that he apply for the AFP check in the 12 months immediately before the day of the Visa application rather than on the day. There is no error in finding that the Applicant did not comply with the Regulations.
I accept the submission of the Minister that the Tribunal was not required to take into account PAM3 as Ministerial Direction No.56 related to the consideration of Protection Visa applications rather than the Skilled Visa applications.
The submission that the Tribunal should apply PAM3 because the application was invalid is based on a misconception in relation to the operation of the Regulations.
I accept the submission of the Minister that the Tribunal correctly proceeded on the basis that the Applicant had made a valid application for a subclass 485 visa but had not satisfied the application criterion in clause 485.213 of Schedule 2 to the Regulations.
I further accept the Minister’s submission that the PAM3 policy extracted in the Applicant’s submissions was not the version of PAM3 which was in effect at the date of the Delegate’s decision.
As was noted by the Tribunal in its decision, this is a case where Ministerial intervention pursuant to section 351 of the Act may be appropriate given the particular circumstances of the case which were noted by the Tribunal and which have been referred to by the Court.
Conclusion
For the reasons above, I have concluded that the Application must be dismissed.
The Applicant is a genuine applicant for a Skilled Visa who has gone to the trouble and expense of making the Application. The fact that his application was not processed was largely because of the substance of information provided to him by the Department.
I have not heard the parties in relation to costs. I refer to the decision of Judge Riethmuller in Rahim v Minister for Immigration and Anor [2018] FCCA 1814 where, in a case dealing with similar facts, his Honour declined to order costs.
I am inclined to the same view in this case but invite the parties to make submissions regarding costs in accordance with the Orders made this day.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 26 February 2020
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