KISHAF v Minister for Immigration
[2018] FCCA 3530
•4 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KISHAF v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3530 |
| Catchwords: PRACTICE AND PROCEDURE – Show cause hearing – applicant failed to demonstrate the existence of jurisdictional error – grounds of review narrative in nature – tribunal’s decision unimpeachable – application summarily dismissed. |
| Legislation: Migration Regulations 1994, sch 2, cls 485.213, 485.312 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 Mir v Minister for Immigration and Border Protection [2018] FCA 697 Siddique v Minister for Immigration and Border Protection [2014] FCA 1352 Spencer v Commonwealth of Australia (2010) 241 CLR 118 SZTTW v Minister for Immigration and Border Protection [2014] FCA 837 |
| Applicant: | SIMAB KISHAF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2139 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 16 November 2018 |
| Date of Last Submission: | 16 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 4 December 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The application filed on 5 October 2018 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3 737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2139 of 2017
| SIMAB KISHAF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 24 February 2017 the applicant applied for a skilled (provisional) (class VC) (subclass 485) visa. On her visa application she indicated that she had not in the last 12 months applied to the Australian Federal Police (“AFP”) for a criminal records check. It was a mandatory requirement for her visa application that she had done so.
On 4 April 2017 a delegate of the minister refused to grant the applicant the visa she sought on the basis that she did not satisfy cl 485.213 of sch 2 to the Migration Regulations 1994 (“regulations”). That was on the basis that the applicant had not applied for an AFP criminal records check during the 12 months immediately before the day she lodged the visa.
On 12 April 2017 the applicant applied to the tribunal for a merits review of the delegate’s decision. On 7 August 2017 the tribunal invited the applicant to appear before a hearing on 31 August 2017. On 31 August 2017 the applicant attended a hearing before the tribunal and provided the tribunal with a national police certificate from the AFP dated 1 March 2017.
On 18 September 2017 the tribunal notified the applicant of its decision made 15 September 2017 to affirm the delegate’s decision to refuse the visa. There the tribunal recorded that the applicant lodged a subclass 485 visa online on 24 February 2017 and that the applicant responded in the negative to the question whether she had applied for an AFP criminal records check in the preceding 12 months and she did not provide any documentary evidence relating to that.
The tribunal recorded that the applicant did not in fact apply for an AFP criminal records check in the 12 months immediately before the day on which she made her application for the visa and that instead on 31 August 2017 the applicant provided to the tribunal a copy of an AFP national police certificate issued to her on 1 March 2017. The tribunal recorded that the visa application was not accompanied by evidence that the applicant had applied for an AFP criminal records check in the relevant period. Accordingly the applicant did not satisfy cl 485.312 of sch 2 to the regulations. The tribunal acknowledged, to the applicant’s dismay, the effect of her unintentional mistake. The tribunal recorded that it had no alternative but to affirm the decision, which it did, and that by affirming the delegate’s decision the tribunal would not grant the applicant the visa she sought.
In this court the applicant sought judicial review of the tribunal’s delegate by application filed 5 October 2017. She relied on six grounds of review. They were narrative in nature but in all they asserted that the decision of the tribunal was affected by jurisdictional error.
It is not necessary to go to the grounds individually. That is for the simple reason that the decision of Wigney J in Mir v Minister for Immigration and Border Protection[1] provided an absolute answer to all of the applicant’s claims in this case.
[1] [2018] FCA 697
The solicitor for the minister contended that the facts of that case were on all fours in this case. I agree that this case involved a construction of cl 485.213. As was held in Mir, the requirements of cl 485.213 call for the tribunal to be satisfied the requisite matters “when the application was made”. That clause required that the application for the AFP criminal records check be made during the 12 months immediately before the day the visa application was made. At paragraph 44 in Mir, Wigney J referred to the fact that the operation of cl 485.213 may be harsh in some circumstances. The solicitor for the minister submitted before me today that no scope existed to waive or otherwise relieve the applicant of the requirements of cl 485.213. I agree.
This was a show cause application ordered by a registrar of this court on 13 June 2018. Pursuant to those orders the applicant was required to file a variety of documents within a particular period of time, which she failed to do. That said, I have read the document dated 1 November 2018 entitled “submissions” provided by the applicant. It is apparent that she was unhappy with the result of the case. None of the grounds alleged demonstrated the existence of jurisdictional error.
It fell to the applicant to demonstrate that she had an arguable case. Having regard to the findings of Wigney J in Mir, she was unable to make out any such arguable case. Even considering authority such as Siddique v Minister for Immigration and Border Protection[2] and SZTTW v Minister for Immigration and Border Protection[3] in the exercise of the residual discretion that I possess to not summarily dismiss this proceeding, I propose to summarily dismiss it for the simple reason that the applicant failed to meet the relevant clause. No power exists to deviate from that requirement and therefore the delegate as well as the tribunal were correct in affirming the decision not to grant the applicant the visa she sought. She failed to comply with the requirement stipulated in the relevant clause. No useful purpose would be served in exercising my discretion to not dismiss this proceeding on the summary basis even though I recognise that the decision in Spencer v Commonwealth of Australia[4] and AMF15 v Minister for Immigration and Border Protection[5] say that the summary dismissal of the proceeding is not to be made lightly.
[2] [2014] FCA 1352
[3] [2014] FCA 837
[4] (2010) 241 CLR 118
[5] [2016] FCAFC 68
In those circumstances I dismiss this proceeding and order the applicant pay the minister’s costs.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Associate:
Date: 4 December 2018
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