Khan v Minister for Immigration and Anor

[2020] FCCA 2825

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2825

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Temporary Graduate (class VC) visa – whether the Tribunal properly considered the applicant’s circumstances – whether there was an error in the application process – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s. 476

Migration Regulations 1994 (Cth), sch. 2, cl. 485.213

Federal Circuit Court Rules 2001 (Cth), r. 44.12.

Applicant: ABDUL KARIM KHAN

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 81 of 2020

Judgment of: Judge Street

Hearing date: 15 October 2020

Date of Last Submission: 15 October 2020

Delivered at: Sydney

Delivered on: 15 October 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents: Mr N McArdle, Sparke Helmore, via Microsoft Teams

ORDERS

1. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 15 October 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 81 of 2020

ABDUL KARIM KHAN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 December 2019, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Temporary Graduate (class VC) visa. 

2. The applicant is a citizen of Pakistan and applied for the visa on 15 March 2019. The application that the applicant completed is one, at the outset, which identified on page 1:

   To be eligible to be granted a subclass 485 visa through the Post‑study work stream, you must have already taken steps to meet certain requirements, and obtained documentation before you lodge your application.  If you do not meet the requirements below, you may not be able to lodge or to be granted a visa.

3. Under the heading, Australian Federal Police, the applicant had a question which was:

   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 answer given was, "No."

4. There was a further record in the document that referred to "critical data" and under the heading, Australian Federal Police Check:

   Provide Australian Federal Police check details for all persons included in this application who are 16 years of age or over.

5. The applicant did not undertake the provision of an Australian Federal Police check in the 12 months prior to the lodgement of the visa application. In those circumstances, the Delegate found that the applicant failed to meet the criteria under cl 485.213(1) of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). 

6. The applicant applied for review to the Tribunal. The applicant was invited to attend a hearing by letter dated 21 October 2019. The applicant appeared on that date to give evidence and present arguments. 

7. The Tribunal, in its reasons, identified the background to the visa application and, in particular, the requirements of cl 485.213. 

8. The Tribunal referred to the fact that the applicant is not required to provide an Australian Federal Police (“AFP”) check with the visa application, but that there must be evidence that they have applied for the AFP check that needs to accompany the application, and is required for them to meet cl 485.213.

9. The Tribunal referred to the answers given by the applicant in the application and to the requirements of the clause. 

10. The Tribunal was satisfied that, when the application was made, it was not accompanied by evidence that the applicant had applied for an AFP check during the 12 months immediately before the day the application was made. The Tribunal identified that it had no discretion to waive the criteria, and found that the applicant did not meet cl 485.213, and affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 13 January 2020. On 13 February 2020, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. The matter was fixed today for a show‑cause hearing. 

2. At the commencement of the hearing, the Court explained to the applicant the nature of the show-cause hearing. 

3. The applicant orally submitted that the application form online should not have permitted him to progress further if he did not have the relevant AFP check. That criticism of the applicant does not identify any basis upon which the Tribunal could find the applicant met the mandatory criteria that the applicant clearly did not meet. 

4. The applicant was on notice that he did not meet that criteria.  As a result of the Delegate's decision, the application to the Tribunal was hopeless and had no prospect of success. The application to this Court is equally hopeless and has no prospect of success because the applicant did not meet a necessary mandatory requirement.

5. The applicant's complaint about whether the computer form was programmed to permit him to move forward is without substance because the form made clear the need for the applicant to have performed the check prior to the making of the application. The applicant did not do so. 

6. Nothing said by the applicant identified any arguable case of jurisdictional error.  

The grounds

1. The grounds in the application are as follows:

   1.The Member did not consider my circumstances.

   2.The Department of Immigration and border protection and AA T did not understand that the problem was on their website where I applied myself for Temporary Resident.

   3.I have already submitted all the documents as per the requirement and law, still they did not considered my case.

Ground 1

1. Insofar as ground 1 refers to the applicant's circumstances, the Tribunal was not required to further address the applicant's circumstances where the applicant failed to meet the mandatory criteria. In any event, it is apparent that the Tribunal did identify what was raised at the hearing before the Tribunal. 

2. No arguable case of jurisdictional error is disclosed by ground 1. 

Ground 2

1. In relation to ground 2, the applicant's assertions of a problem with the website are incorrect as the information clearly identified for the applicant that he needed to have made the necessary check with the AFP before applying for the visa. The applicant did not do so.

2. The applicant's disagreement with the programming and permitting him to move forward with the application is entirely without substance, and does not identify any arguable case of relevant error. 

Ground 3

1. In relation to ground 3, the applicant asserts, erroneously, that he met the requirements. It is clear the applicant did not. 

2. No arguable case of jurisdictional error is disclosed by ground 3. 

3. On the face of the material before the Court, the tribunal complied with its statutory obligations in the conduct of the review.

4. The Court is satisfied that the application has not raised an arguable case for the relief claimed. The Court is satisfied that this is an appropriate matter in which to exercise the Court's powers under r 44.12 of the Federal Circuit Court Rules2001 (Cth).

I certify that the preceding twenty-five (25) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 15 October 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 26 November 2020