Katamneni v Minister for Home Affairs
[2018] FCCA 2970
•3 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KATAMNENI v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2970 |
| Catchwords: MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.46 Migration Regulations 1994 (Cth)cl.485.213 |
| Cases cited: Argente v the Minister for Immigration [2004] FMCA 252 |
| Applicant: | CHANDRAHAS KATAMNENI |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 457 of 2018 |
| Judgment of: | Judge Vasta |
| Hearing date: | 3 October 2018 |
| Date of Last Submission: | 3 October 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 3 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Burrow |
| Solicitors for the Applicant: | Chand Lawyers |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
That pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001, the Application filed 5 May 2018 be dismissed.
That the Applicant pay costs to the First Respondent fixed in the sum of $3,606.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 457 of 2018
| CHANDRAHAS KATAMNENI |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
On 5 May 2018, the Applicant, Chandrahas Katamneni, applied to this Court for a review of a decision of the Administrative Appeals Tribunal (“the AAT”)that was made on 20 April 2018. That decision affirmed the decision not to grant the Applicant a Skilled (Provisional) (Class VC) visa.
The decision of the AAT boiled down to this: that the visa class VC contains a number of subclasses. The criteria that must be met under those subclasses, and more particularly cl.485.213 of the Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”), was that when the application was made, it was accompanied by evidence that:
a)the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made.
The evidence is that the Applicant made such an application after he had lodged the visa, and therefore, at the time that he made the application, he had not applied for an Australian Federal Police check. The Tribunal said that, in effect, because that aspect of the criteria had not been fulfilled, it could not grant the visa.
The argument at the Tribunal was that this was an unfair and unreasonable result; that there was a discrepancy between the strict wording of the legislation and the ambiguity of general information on the online application; that when the applicant got to that question on the online application, he ticked “no”, but he was still allowed to keep going with the application; and, he made the application, and paid the fee, when it was obvious he was never going to be able to get that visa. He also claimed before the Tribunal that he had not been afforded procedural fairness.
The argument before this Court, notwithstanding that the grounds upon which the application is made do not really bespeak of what the argument truly is, did coalesce during the submissions that were made by Mr Burrows, who has done a valiant job considering that he has only recently come into the matter.
The point that Mr Burrow makes is, the application needed to have evidence that there had been an application for an Australian Federal Police check during the 12 months beforehand. As the Applicant had ticked the box that had not occurred, his application therefore was not valid. If the application was therefore not valid, it could not have been considered by the delegate, or by the Tribunal.
The Tribunal did look at this aspect, but it is purely a legal matter, and the Court does not have to look at what the Tribunal has found to see whether such a finding was open or not; the Court must look at whether or not this matter was a valid application.
The legislation for validity of a visa application is found at s.46 of the Migration Act 1958 (Cth) (“the Act”):
Validity—general
(1)Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
(a)it is for a visa of a class specified in the application; and
(b)it satisfies the criteria and requirements prescribed under this section; and
(ba)subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
(c)any fees payable in respect of it under the regulations have been paid; and
(d)it is not prevented by any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:
(i)section 48 (visa refused or cancelled earlier);
(ii)section 48A (protection visa refused or cancelled earlier);
(iii)section 161 (criminal justice visa holders);
(iv)section 164D (enforcement visa holders);
(v)section 195 (detainee applying out of time);
(vi)section 501E (earlier refusal or cancellation on character grounds); and
(e)it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:
(i)section 46AA (visa applications, and the grant of visas, for some Act‑based visas);
(ii)section 46A (visa applications by unauthorised maritime arrivals);
(iii)section 46B (visa applications by transitory persons);
(iv)section 91E or 91G (CPA and safe third countries);
(v)section 91K (temporary safe haven visas);
(vi)section 91P (non‑citizens with access to protection from third countries).
(1A) Subject to subsection (2), an application for a visa is invalid if:
(a) the applicant is in the migration zone; and
(b) since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and
(c) the Minister has not waived that condition under subsection 41(2A); and
(d) the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted.
(2) Subject to subsection (2A), an application for a visa is valid if:
(a) it is an application for a visa of a class prescribed for the purposes of this subsection; and
(b) under the regulations, the application is taken to have been validly made.
Provision of personal identifiers
(2A) An application for a visa is invalid if:
(aa) the Minister has not waived the operation of this subsection in relation to the application for the visa; and
(ab) the applicant has been required to provide one or more personal identifiers under section 257A for the purposes of this subsection; and
(b) the applicant has not complied with the requirement.
Note: An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).
Prescribed criteria for validity
(3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4) Without limiting subsection (3), the regulations may also prescribe:
(a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b)how an application for a visa of a specified class must be made; and
(c) where an application for a visa of a specified class must be made; and
(d) where an applicant must be when an application for a visa of a specified class is made.
(5) To avoid doubt, subsections (3) and (4) do not require criteria to be prescribed in relation to the validity of visa applications, including, without limitation, applications for visas of the following classes:
(a) special category visas (see section 32);
(b) permanent protection visas (see subsection 35A(2));
(c) temporary protection visas (see subsection 35A(3));
(ca) safe haven enterprise visas (see subsection 35A(3A));
(d) bridging visas (see section 37);
(e) temporary safe haven visas (see section 37A);
(f) maritime crew visas (see section 38B).
What is clear is that the application that was made has complied with s.46(1); is not invalid pursuant to s.46(1A); s.46(2) does not apply to this particular aspect; nor does s.46(2A). Subsection (3) says this:
(3)The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
Therefore, pursuant to s.46, the application made by the applicant is a valid application unless, pursuant to s.46(3), there are other criteria that need to be satisfied in the Regulations.
The Skilled (Provisional) (Class VC) visa regulations are at 1229. This regulation says that:
The approved form specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).
It talks then about the visa application charge. It talks about other matters: where the application must be made, and how it is to be made; that the visa must nominate only one stream to which the application applies; and so on. It then says that:
4. The following requirements must be met:
(a) one of the following subparagraphs must be satisfied by the applicant:
if it is an applicant holding an eligible student visa, then this is what he must do; and so on. Then, at subsection 10, there is subclass 485, which is a temporary graduate.
When one then goes to the clauses for subclass 485, there is no other criteria pursuant to s.46(3) that is required before the application is a valid application. What needs to happen, then, is that the criteria under subclass 485 needs to be fulfilled. Clause 485.213 states, as I have already said, that:
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 was made.
Because of that, it seems to me that the only possible interpretation that the Court can have is that the application made by the applicant was a valid application; and, having made the valid application, it was up to him to fulfil the criteria in cl.485.213. This he did not, and could not, do.
This can be distinguished from the circumstances that applied in the matter of Argente v the Minister for Immigration [2004] FMCA 252. In that matter, the applicant was lodging an application for a visa class DE, Skilled Australian-Sponsored Overseas Student. For such an application to be valid, it had to be accompanied by evidence that, during the 12 months immediately before the day on which the application was made, the Australian Federal Police had completed a check of criminal records in relation to the applicant. The way in which that was worded meant that if the application was not accompanied by such information, it could not be a valid application. That is a different situation to what confronts the Applicant in this case.
Whilst the Court again, like the last matter, has every sympathy with the Applicant, the Court cannot in any way bend the rules; the Court must apply the legislation as it is.
The legislation is clear. The application for a Federal Police check had to be done before the application for the visa was made; it was not.
Therefore, the criteria are not met, and the visa cannot be granted.
I cannot, therefore, find that there has been any jurisdictional error in the reasoning of the Tribunal.
I therefore dismiss the application, with costs, fixed in the amount of $3606.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Vasta.
Date: 25 October 2018