Mir v Minister for Immigration
[2017] FCCA 1348
•20 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MIR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1348 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a skilled visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.358 |
| Cases cited: Anand v Minister for Immigration (2013) 136 ALD 633 |
| Applicant: | ZUBAIR ALI MIR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3084 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms S Sangha of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3084 of 2016
| ZUBAIR ALI MIR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, Mr Mir, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 October 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Mir a Skilled (Provisional) (Class VC) visa. Background facts relating to the visa application, and the decision of the Tribunal on it, are set out in the Minister’s outline of submissions filed on 9 June 2017.
On 15 March 2016, Mr Mir applied for a Temporary Graduate (Subclass 485)[1] visa through the Post-Study Work stream.[2] Page 1 of the visa application form states:
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 obtain 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.
[1] The Temporary Graduate (Subclass 485) visa is the only subclass to the Skilled (Provisional) (Class VC) visa.
[2] Court Book (CB) 1-10
Under the heading “Australian Federal Police”, Mr Mir was asked 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?
Mr Mir responded “No”.[3]
[3] CB 1
Mr Mir provided academic records in support of his visa application form.[4]
[4] CB 11-17
On 13 May 2016, the delegate refused to grant Mr Mir the visa on the basis that Mr Mir failed to satisfy cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).[5] That clause required that when the visa application was made, it was accompanied by evidence that Mr Mir had applied for an Australian Federal Police (AFP) check “during the 12 months immediately before the day the application was made”. The delegate found Mr Mir declared in his application form that he had not applied for an AFP check in the last 12 months.[6]
[5] CB 19-23
[6] CB 23
The Tribunal review and decision
On 2 June 2016, Mr Mir made an application for review to the Tribunal.[7] Mr Mir provided a copy of the delegate’s decision with the application.[8] Mr Mir nominated a migration agent as his representative in connection with the review application.[9]
[7] CB 24-25
[8] CB 25; Item 5 of Court book index
[9] CB 25
By a letter dated 20 September 2016, Mr Mir was invited, through his representative, to attend a hearing scheduled for 14 October 2016.[10] On 4 October 2016, Mr Mir accepted the invitation and attended with a representative.[11]
[10] CB 30-33
[11] CB 34-41, CB 46-47
On 7 October 2016, Mr Mir provided an AFP check dated 30 September 2016.[12]
[12] CB 44-45
On 17 October 2016, the Tribunal affirmed the decision under review on the same basis as the delegate, namely Mr Mir’s failure to satisfy cl.485.213 of Schedule 2 to the Regulations.[13] The Tribunal found that cl.485.213 required that when the visa application was made, it was accompanied by evidence that Mr Mir had applied for an APF check during the 12 months immediately before the day the application is made.[14] The Tribunal noted that Mr Mir applied for his visa on 15 March 2016 and stated in his application form that he had not applied for an AFP check. The Tribunal also noted that Mr Mir provided an AFP check dated 30 September 2016, but this was “more than six months after the application was filed”.[15] The Tribunal found that there was no information that Mr Mir applied for an AFP check before he made his application.[16]
[13] CB 50-55
[14] CB 55, par 11
[15] CB 55, par 12
[16] CB 55, par 12
The Tribunal found that when Mr Mir’s application was made, there was no evidence Mr Mir had applied for an AFP check during the 12 months immediately before the day the application and that Mr Mir “only took steps to apply for an AFP check after the application was made”.[17] The Tribunal concluded that Mr Mir did not satisfy cl 485.213 of Schedule 2 to the Regulations.[18] It followed that Mr Mir did not satisfy the criteria for the grant of a Subclass 485 visa. As this was the only subclass in this class, the decision under review was affirmed.[19]
[17] CB 55, par 13
[18] CB 55, par 14
[19] CB 55, par 15
Present proceedings
These proceedings began with a show cause application filed on 9 November 2016. Mr Mir continues to rely upon that application. There is a single ground in it which asserts that the Tribunal failed to exercise its jurisdiction by failing to consider all aspects of his claims. The application is supported by a short affidavit filed with it which I received. I also have before me as evidence the court book filed on 15 March 2017. Only the Minister prepared written submissions in accordance with the registrar’s procedural orders made on 16 March 2017.
I invited Mr Mir to make oral submissions today. He explained that he had previously successfully applied online for a student visa and, having successfully completed his initial course, he applied for the visa in issue in order to undertake higher education studies. He applied for the visa online. Mr Mir submits that there are technical problems with the online application process, which I have heard previously in other cases, and that he was not put on notice of any obligation to provide a police check. It came, therefore, as a most unpleasant surprise for him to be told that his failure to provide a police check before his visa application prevented him from obtaining the visa he sought.
Mr Mir referred me to the decision of this Court in Gowda & Ors v Minister for Immigration.[20] That decision appears to rely implicitly on the decision of the High Court in Berenguel v Minister for Immigration (Berenguel)[21] concerning an English language visa requirement which, as the High Court found, could be satisfied up to the time of decision. Mr Mir submits that the same is true here. The short answer to that proposition is that the visa criterion in issue, clause 485.231 of schedule 2 to the regulations, requires that each applicant have applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.
[20] (2016) FCCA 3491
[21] (2010) HCA 8
The wording of that criterion reflects amendments to a range of criteria that followed the High Court’s decision in Berenguel and which were specifically intended to overcome the result in that decision. It is no longer open to argue that the criterion could be met at the time of decision as opposed to the time of application. That is unfortunate for Mr Mir, who is a professional engineer, apparently of good character and who has been brought undone by a technical visa requirement which he did not understand and of which he was not given notice prior to his application.[22]
[22] The warning reproduced at [2] above is delphic.
The Minister might, if he was so minded, reconsider Mr Mir’s circumstances pursuant to s.351 of the Migration Act 1958 (Cth). That is, of course, a matter for the Minister. But the circumstances do appear to me to have worked an injustice.
I otherwise agree with the Minister’s submissions on the application.
The application filed on 9 November 2016 contains a single ground of review which states that the Tribunal failed to exercise its jurisdiction by failing to consider “all aspects” of Mr Mir’s claims. This ground is misconceived as the sole issue on the review was whether the Mr Mir had applied for an AFP check in the 12 months immediately before his visa application was made. There were no “claims” for the Tribunal to consider. Although Mr Mir subsequently provided an AFP check dated 30 September 2016, this did not assist Mr Mir as he was required to have applied for the AFP check before his visa application was lodged.[23] Accordingly, this ground must fail.
[23] CB 55, par 12; Anguralia v Minister for Immigration & Anor [2014] FCCA 2027 at [32]-[33]; Anand v Minister for Immigration (2013) 136 ALD 633 at [27]-[29]
Conclusion
I conclude that Mr Mir is unable to demonstrate an arguable case of jurisdictional error by the Tribunal, and in consequence I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale. Mr Mir indicated that he would have difficulty, at least in the short term, in meeting the costs order. That is not a reason for the Court to refrain from making an order. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 26 June 2017
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