Kazmi v Minister for Home Affairs
[2019] FCCA 1702
•14 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAZMI v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1702 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – application under r.16.05(2)(a) of the Federal Circuit Court Rules 2011 (Cth) – where no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 1999 (Cth) rr.13.03C, 16.05 |
| Cases cited: Annam v Minister for Home Affairs [2019] FCA 237 |
| Applicant: | SAJJAD AHMED KAZMI |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 347 of 2019 |
| Judgment of: | Judge Barnes |
| Hearing date: | 14 June 2019 |
| Date of Last Submission: | 14 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 14 June 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application in a case filed on 3 May 2019 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $2,100.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 347 of 2019
| SAJJAD AHMED KAZMI |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under r.16.05 of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules) seeking reinstatement of proceedings that were dismissed by a Registrar for non-appearance on the first court date under r.13.03C(1)(c) of the FCC Rules.
On 15 February 2019, the Applicant, Mr Kazmi, filed an application seeking review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the First Respondent not to grant him a Skilled (Provisional) (Class VC) visa.
As recorded in the “notice of filing and hearing” attached to the filed copy of that application, the matter was listed for a first court date on 14 March 2019 at 9.30am. On that date the application was dismissed in the absence of the Applicant. He filed his application in a case seeking reinstatement (supported by an affidavit) on 3 May 2019.
In addition, after he was given the opportunity to file further affidavit evidence and written submissions, the Applicant sent the court a document which was in the nature of evidence. He was given, and took, the opportunity to adopt that statement as his sworn evidence today.
In essence, in his affidavit and statement the Applicant explained his absence from the first court date on the basis that while he sought judicial review after his application was refused by the Tribunal, he did not receive a copy of his review application from the registry with the details of the first court date. He went overseas on 26 February 2019. He claimed that the first notification that he received from anyone as to the first court date was an email from Mills Oakley (the solicitors for the First Respondent) on 13 March 2019, which told him that the first court date was the next day, 14 March 2019. It was impossible for him to attend as he was overseas. His application was dismissed in his absence. He explained that when he returned to Australia on 1 April 2019 he also received a letter from the solicitors for the Minister which had been sent while he was overseas. However this was after the court date.
There is no evidence before the court as to the procedures of the registry in relation to applications of this nature and how and when an applicant is notified of a first court date. It would seem somewhat surprising for an applicant not to receive a notice of filing including details of the first court date where an application has been accepted for electronic filing.
In any event, the difficulty that faces the Applicant is that even if one takes his explanation for his failure to attend the first court date on 14 March 2019 at its highest and accepts that he did not know about the first court date listing until the day before the first court date (when he was overseas) and that this constitutes a reasonable excuse for his absence from the first court date, I am not satisfied that this in itself is a sufficient basis on which to reinstate the proceedings.
The court has a discretion under r.16.05(2)(a) of the FCC Rules to vary or set aside a judgment or order after it has been entered, if made in the absence of a party (as here). However in this case it is relevant to have regard not only to whether the Applicant has a reasonable excuse for his absence, but also to whether there is any prejudice to the other party if reinstatement is granted and, importantly, to the Applicant’s prospects of success in the substantive application (see MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] and see Mortimer J in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] stating that one aspect of the factors consistently considered in such circumstances is “whether the applicant has an arguable case on judicial review”).
For present purposes I am content to proceed on the basis that I accept the Applicant’s evidence that he was unaware of the first court date until 13 March 2019, for whatever reason, whether because he left the country before he received notification of the listing from the registry or because he was first informed of the first court date on 13 March 2019. At that time he was overseas. He could not return in time for the first court date on 14 March 2019. There is no asserted prejudice to the First Respondent in reinstatement, other than to defend a case said not to have reasonable prospects of success and possible costs consequences.
However there is simply nothing in the application, the Applicant’s submissions or in the material before the court (which includes the courtbook) to suggest any arguable ground of review. I have considered whether the Applicant has any ground which is arguable in the sense of not fanciful, illogical, impermissible or devoid of merit (but rather is such that he ought to have a proper opportunity to raise it in the course of final proceedings before the court) (see CAL15 at [4] – [6]). However in the particular circumstances of this case I am not satisfied that there is any arguable ground of review in relation to the Tribunal decision or procedures.
In his application the Applicant contended:
i completed required documentation well on time, provided NSW Police check, completed 2 years of full time study with high grade, application refused on basis of police check of AFP, i applied for NSW Police check earlier and than submitted the AFP Check as well,
(errors in original)
This ground (and, more generally, the issue of whether the Applicant has any arguable case on judicial review) has to be seen in light of the circumstances of this case and the criteria for a Subclass 485 visa. One of the criteria for the visa (in cl.485.213 in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations)) was 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 date on which the application was made.
In his visa application form lodged on 10 January 2018, the Applicant answered “yes” 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?
Further, in the application form the Applicant also indicated (under the heading Australian Federal Police check) that a request for such a police check had been made on 3 January 2018. He provided a reference number.
The delegate subsequently asked the Applicant to provide evidence of an AFP check. However, the Applicant provided a New South Wales Police check dated 13 March 2018. The delegate refused the application on the basis that the Applicant did not meet a requirement in cl.485.216 in Part 485 of Schedule 2 to the Regulations (which applied where public interest criterion 4001 was applicable and a delegate was assessing a person in relation to the character test) in that he had not provided an AFP Complete Disclosure Certificate. The delegate refused the visa application on 18 April 2018.
The Applicant sought review by the Tribunal on 4 May 2018. After the decision of the delegate the Applicant obtained an AFP certificate dated 20 April 2018, which he provided to the Tribunal at the Tribunal hearing on 8 February 2019.
In its reasons for decision the Tribunal referred to the requirements of cl.485.213, stating in particular that, as it had explained to the Applicant at the hearing, cl.485.213 required it to be satisfied that the visa application was “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”. It noted that the receipt number he had provided in his visa application referred to a receipt for a New South Wales Police check (a copy of which appears in the courtbook) provided to the delegate.
The Tribunal recorded that the Applicant had explained that it was a “mistake” that he had applied for the New South Wales Police certificate, not the “federal one”. He then went overseas for his wedding and was busy. When he returned to Australia he received an email from the delegate requesting what the Applicant described as “the certificate” (although in fact the delegate asked for a copy of an AFP certificate). He uploaded the (NSW) certificate, but then received notification his visa had been refused. He told the Tribunal he then applied for the “federal one”, but it was too late.
The Tribunal found that the visa application was not accompanied by evidence that the Applicant had applied for an AFP check in the 12 months immediately before the date of the application. The AFP check provided was dated 20 April 2018 and, on the Applicant’s evidence, was not applied for until after the visa was refused.
Hence the Tribunal found that the Applicant had not applied for an AFP check at the time he made the visa application and therefore that he did not meet cl.485.213 of the Regulations.
The ground of review merely recites these circumstances. The Applicant has not identified any arguable jurisdictional error in the Tribunal’s approach, despite having been given the opportunity to file an amended application in support of his reinstatement application. Nor is any arguable ground apparent.
The test for whether a visa application is accompanied by necessary evidence is objective (see Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [15] – [16]). While, as was accepted by the Minister, the Applicant provided the Tribunal with an AFP check dated 20 April 2018, this could not meet the requirement of cl.485.213 as he was required to apply for the check from the AFP before his visa application was lodged. It is not contested that he did not do so. Hence he could not meet the mandatory criterion in cl.485.213 (see Annam v Minister for Home Affairs [2019] FCA 237 at [13] – [17]).
In circumstances where a police check from a source other than the AFP had been provided in support of a subclass 485 visa application, Davies J found in Rahim v Minister for Immigration and Border Protection [2018] FCA 1736 at [4] that where the document relied on did not answer the essential requirements of cl.485.213 (because it was not an AFP check) the Tribunal had no power or discretion to accept such document.
Clause 485.213 may operate harshly, but in Annam Charlesworth J stated at [16] that any hardship caused to an applicant is not a relevant mandatory consideration that has to be taken into account by the Tribunal and, importantly, where cl.485.213 is not satisfied, the only decision open to a Tribunal is to affirm the delegate’s refusal.
In light of the mandatory requirement in cl.485.213, it has not been established and nor is it apparent that there is any arguable case that the Tribunal has misapplied or misunderstood any of the criteria applicable. It has not been established that it failed to take into account any relevant consideration. The Tribunal raised cl.485.213 with the Applicant. It understood and considered the Applicant’s evidence about the mistake that he made. However there is nothing to establish any arguable claim that the manner in which it proceeded is indicative of any jurisdictional error.
Insofar as the Applicant submitted that the decision was not fair, while I understand his contention that he made an honest mistake, that is not a basis on which the Tribunal could find that he met the criterion in cl.485.213 or grant the visa. As stated in Rahim at [4] “matters of fairness or equity” have no bearing on whether a police check from a source other than the AFP should have been acceptable as fulfilling the criterion in cl.485.213.
Despite the fact that it may operate harshly, the criterion in cl.485.213 specifically requires an application for an Australian Federal Police check to be made during the 12 months immediately before the date of the visa application. While I have some sympathy for the Applicant and the circumstances in which he has found himself after making an understandable mistake, there is nothing in the material before the court to establish even a very weak arguable ground of review.
In such circumstances, even if the Applicant’s explanation for non-appearance is regarded as satisfactory, it would be futile to reinstate his review application in the absence of an arguable basis on which he could succeed in proceedings before the court. As Mortimer J stated in CAL15 at [4]:
… if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
The application for reinstatement under r.16.05 of the FCC Rules should be dismissed.
The Applicant has been unsuccessful. The Minister seeks costs. The Applicant raised his lack of knowledge about the law in relation to reinstatement. However that is not a basis for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent. The amount sought is reasonable and appropriate in light of the nature of this and other similar matters.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 21 June 2019
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