Liang v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 702
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Liang v Minister For Immigration, Citizenship And Multicultural Affairs [2023] FedCFamC2G 702
File number(s): SYG 3313 of 2018 Judgment of: JUDGE LAING Date of judgment: 11 August 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision refusing to grant the applicant a Skilled (Provisional) (Class VC) (Subclass 485) visa – whether the Tribunal erred in finding that the visa application was valid – whether the Tribunal erred in finding that the applicant was unable to meet cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) – application dismissed Legislation: Migration Act 1958 (Cth) s 46
Migration Regulations 1994 (Cth) cl 485.213, sch 1
Cases cited: Annam v Minister for Home Affairs [2019] FCA 237
Khan v Minister for Immigration and Border Protection [2018] FCAFC 85
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of hearing: 3 August 2023 Place: Sydney Appearing for the Applicant: In person Solicitor for the Respondents: Ms E Maker of Sparke Helmore Lawyers ORDERS
SYG 3313 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JORGE FERNANDO CHIE LIANG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
11 AUGUST 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $5,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Skilled (Provisional) (Class VC) (Subclass 485) visa (skilled visa).
BACKGROUND
The applicant applied for the skilled visa on 13 March 2018. On his application form, the question was asked:
Australian Federal Police
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 applicant responded “No” to this question.
On 11 May 2018, the Delegate refused the skilled visa application. The Delegate found that the applicant was unable to meet cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That provision was set out in the Delegate’s decision as follows (emphasis removed):
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 is made.
On 23 May 2018, the applicant applied to the Tribunal for review of the Delegate’s decision.
The Tribunal affirmed the Delegate’s decision on 5 November 2018.
THE TRIBUNAL’S DECISION
The Tribunal set out the background to the matter and evidence before it, insofar as it was relevant to the criterion in issue, at [1]-[10] of its decision. This included reference to a copy of an Australian Federal Police (AFP) check that had been provided dated 14 May 2018. It also included reference to a receipt issued by the AFP indicating that the applicant had applied for the AFP check on 11 May 2018.
At [11]-[13], the Tribunal set out the applicant’s submissions as follows:
11.It was submitted that the applicant was focusing on his skills assessment application and overlooked the requirement regarding the AFP check. It was submitted that while evidence had to be provided at the time of application, the completed AFP check is a time of decision criteria. The representative queried whether it was intended that applicant be refused simply because they had not applied for an AFP police check before lodging the application.
12.At the hearing, the applicant gave evidence that he had limited time to prepare and lodge the visa application as his visa was expiring on 15 March 2018. He stated that he overlooked the requirement. He queried whether the application should have been accepted as a valid application. The Tribunal expressed its view that if the requirements in Schedule 1 were satisfied, which includes using the correct form and paying the filing fee, it would be a valid application.
13.After the hearing, the Tribunal received further submissions from the representative stating that paying the filing fee and submitting the visa application does not constitute a valid application if it does not meet the application criteria. He stated that he has examples of invalid applications as proof. The representative stated that refusal to grant the visa in circumstances where the applicant could have met the requirements, including obtaining a clear police record within a short period of time, is not consistent with the Australian value statement.
The Tribunal responded to these submissions at [14]-[15] of its decision:
14.The Tribunal has had regard to the relevant requirements in Schedule 1 in Item 1229 for making a valid application. The Tribunal acknowledges that the form and fee are only two of a number of requirements for making a valid application. Other requirements relevantly include that the applicant was in Australia, that he was the holder of an eligible visa, that he nominated an applicable stream and that he was less than 50 years of age. The evidence before the Tribunal, including the information provided on the visa application form and the applicant’s oral evidence at the hearing, indicates that the Schedule 1 requirements in this case were satisfied. As such, the Tribunal is satisfied that the applicant made a valid application for the visa. If this was not the case, the delegate would not have assessed the applicant against the requirements for the visa in Schedule 2 of the Regulations: see s.65 of the Act.
15.While the Regulations do not require the applicant to have a completed AFP check at the time of visa application, they do require the applicant to have applied for the AFP check in the 12 months before the application is made and to provide evidence of this with the application. As explained to the applicant at the hearing, there is no provision in the legislation to take into account the reasons for why he was not able to apply for the AFP check within the relevant period. The Tribunal acknowledges that the applicant has now provided a completed AFP check. However, that check was not applied for until after the visa application was made. The regulations may appear harsh and unfair, however, the Tribunal has no discretion in these matters.
The Tribunal observed that cl 485.213 required the applicant to have applied for an AFP check in the 12 months immediately before the date of the application and to have provided evidence of same with the application. The Tribunal considered that the evidence before it established that this criterion had not been met (at [16]).
Having regard to the above, the Tribunal concluded that the applicant was unable to meet cl 485.213 as required for the grant of the visa. Accordingly, the Tribunal affirmed the Delegate’s decision (at [17]-[19]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 29 November 2018 containing the following grounds:
1.Under Immigration Regulation 1994, Section 485.21 Criteria to be satisfied at time of application, 485.216 The application is accompanied by evidence that:
(a)applicant;
(b)each person included in the application who is at least 16; has applied for an Australian Federal Police check during the 12 months immediately before the day when the application is made
2.The applicant has clearly not met all of the criteria in the Section 485.21 Criteria to be satisfied at time of application. The application should be rejected (or made invalid) rather than progress to the next state which is making a decision for granting or refusing the application. Both the office of the immigration or the AAT have made an obvious mistake.
The grounds raised by the applicant contended that the visa application ought not to have been accepted as a valid application in circumstances where he did not meet cl 485.213. In support of this, the applicant relied upon affidavit evidence indicating that the Department’s website states that:
To make a valid application, an applicant is usually required to do the following:
•lodge a completed application form using the correct form, or lodge an application online (where applicable)
See: Form 1025i – Making and processing visa applications
•pay the required visa application charge at the time of application (if required)
•satisfy any other application requirements…
An application is not valid, and cannot be considered, until all the above requirements have been met.
However, as was found by the Tribunal, the requirements for validity were governed by the provisions of the Migration Act 1958 (Cth) (Act) and the Regulations. Section 46 of the Act and Item 1229 of Schedule 1 to the Regulations set out the requirements for a valid application for the type of visa for which the applicant applied. These include requirements such as using the correct application form and paying the relevant application fee. The evidence before the Court indicates that these and the other requirements in s 46 of the Act and Schedule 1 to the Regulations were met. The applicant has not contended otherwise.
The applicant nonetheless submitted that his visa application ought to have been regarded as invalid, given his inability to meet cl 485.213.
I accept the Minister’s submission that this understandably but erroneously conflates the ability of the applicant to meet the requirements for the grant of the visa with the requirements for the application’s validity. The ability of the applicant to meet cl 485.213 was not one of the requirements for the application’s validity as specified in s 46 of the Act or Schedule 1 to Regulations. As such, the application was not invalid simply because the applicant was unable to meet this criterion for the grant of the visa.
It follows that the Tribunal was correct to have found that the applicant’s visa application was valid.
For completeness, I also accept the Minister’s submission that no relevant error attended the Tribunal’s finding that cl 485.213 was not met. Although the applicant appears to have applied for and obtained an AFP check after the Delegate’s decision, cl 485.213 required the applicant to have applied for the check during the 12 months immediately before the day of his visa application and for evidence of this to have accompanied his application. The Tribunal was unable to waive this criterion. This was notwithstanding the fact that the applicant was ultimately able to obtain the AFP check, the innocence of his mistake in not applying for this before making the visa application, and what he may understandably regard as the harshness of the result.
In relation to an analogous provision, it was stated in Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [15]-[16] per Tracey J:
15.The clause establishes an objective temporal test. Whether or not there is some flexibility in the test, nothing decided in Anand permits the temporal requirement to import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant. The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not.
16.The test is objective. Clause 485.223 is one of a number of “time of application” criteria conditioning the grant of a skills visa. An obvious mischief addressed by the provision is to provide clarity to the visa applicant as to the person’s readiness to apply for the visa and the matters he or she needs to have done before he or she commences the visa application process.
To similar effect, it was stated by Charlesworth J in Annam v Minister for Home Affairs [2019] FCA 237 at [16]-[17]:
16.It may be accepted that cl 485.213 has, in fact, operated harshly in Mr Annam’s case. The legal question for determination is whether hardship of the kind expressed by Mr Annam is a mandatory relevant consideration to be taken into account in refusing to grant the visa. It has been established by the Full Court that it is not: Khan at [15] and [22]; see also Kaur v Minister for Immigration and Border Protection [2018] FCA 1765 at [21] (Charlesworth J).
17.The only decision that was open to the Tribunal to make in the circumstances was a decision to refuse to grant the visa. That decision was mandated by s 65 of the Act.
Similarly in this case, the Tribunal had no other option than to find that the applicant was unable to meet an objective criterion for the grant of the visa and to affirm the Delegate’s decision. No jurisdictional error attended its decision in doing so.
CONCLUSION
For the above reasons, I am required to dismiss the application that is before the Court.
I will hear from the parties in relation to costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 11 August 2023
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