MONTHY v Minister for Home Affairs
[2019] FCCA 12
•15 January 2019
AFEDERAL CIRCUIT COURT OF AUSTRALIA
| MONTHY & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 12 |
| Catchwords: MIGRATION – Application for a skilled (provisional) (Class VC) (Subclass 485) visa – failure to satisfy criteria – argument that concession in application form for visa that the relevant criteria had not been satisfied rendered the application as “invalid” such that the rejection of visa application constituted jurisdictional error – argument without merit – application for review dismissed. |
| Legislation: Migration Act 1958 (Cth) s.476 Migration Regulations 1994 (Cth) r.485.213 |
| Cases cited: Katamneni v Minister for Home Affairs & Anor [2018] FCCA 2970 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 |
| First Applicant: | LINDY MARIE-FLAVIENNE MONTHY |
| Second Applicant: | ISHANNE LMAE-LING |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 473 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 15 January 2019 |
| Date of Last Submission: | 15 January 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 15 January 2019 |
REPRESENTATION
| Counsel for the Applicants: | Mr Balzamo |
| Solicitors for the Applicants: | Stephens & Tozer Solicitors |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
It is ordered that the application for review filed on 14 May 2018 be dismissed.
It is ordered that the first named applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $5600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 473 of 2018
| LINDY MARIE-FLAVIENNE MONTHY |
First Applicant
| ISHANNE LMAE-LING |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants are citizens of Seychelles. The first named applicant is the mother of the second named applicant. On 19 August 2016, the applicants lodged an application for a visa (see CB1-16). The first applicant was listed as the primary applicant, and the second applicant, her daughter, was listed as a dependent applicant. The application was for a skilled (provisional) (Class VC) (Subclass 485) visa.
On 6 October 2016, a delegate of the Minister refused to grant the visa. The delegate was not satisfied that the applicants satisfied the criteria for the grant of the visa, namely, the criteria set out in clause 485.213 of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate was satisfied that the application for the visa was not accompanied by evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application for the visa was made.
Criteria 485.213 provided as follows:
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; tab this across
had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.
By application made on 21 October 2016, the applicants sought review of the delegate’s decision before the Administrative Appeals Tribunal (see CB30-40). On 20 March 2018, the applicants, through their legal representative, provided written submissions to the Tribunal (CB68-73). On 11 April 2018, the first applicant appeared with her legal representative at a hearing before the Tribunal. On 20 April 2018, the Tribunal affirmed the delegate’s decision (CB100-104 inclusive).
By an application filed on 14 May 2018, pursuant to Section 476 of the Migration Act 1958 (Cth), the applicants sought judicial review of the decision of the Tribunal dated 20 April 2018, by which the Tribunal affirmed the decision of the delegate not to grant to the applicants the visa applied for.
Paragraph 9 of the decision of the Tribunal at CB101 recorded as follows:
The applicant concedes that her applying for the police check on 11 October 2016 is not within the requisite 12-month period immediately before the visa application was lodged on 6 October 2016 (being the period 6 October 2015 to 6 October 2016), and accepts that she does not meet clause 485.213.
It was submitted on behalf of the applicants by Mr Balzamo of counsel that because the application form for the visa had recorded a negative response to the question whether the applicant had applied in the last 12 months to the Australian Federal Police for a check of criminal records, that that negative response ought to have elicited from the Department a response whereby the application for the visa ought to have been rejected as invalid, the argument being that by reason of the first named applicant having made an admission that criteria 485.213 of the Regulations had not been complied with, it would have been clear to the Department that it was a non-complying application. In essence, counsel for the applicants submitted that it was the responsibility of the Government Department to vet the applicants’ application so as to ensure that all relevant criteria had been met before the application was accepted, let alone considered.
It was submitted on behalf of the Minister that once submitted, the application then had to be considered so as to identify whether the relevant criteria for the grant of the visa had been satisfied or not, such that if such criteria had not been satisfied, the application for the visa was to be refused.
That very question has been determined in a recent case of Katamneni v Minister for Home Affairs & Anor [2018] FCCA 2970, a decision of his Honour Vasta J handed down on 3 October 2018. It was conceded by counsel for the applicant that, relevantly, there was no difference between the facts of that case and the facts of the present case.
His Honour Judge Vasta found that the application for the visa, once made, was a valid application which then had to be the subject of consideration. His Honour found that because the criteria in 485.213 of the second schedule to the Regulations was a requirement for the grant of a visa, non-compliance with that criteria disentitled the applicants from such grant. This Court agrees with that approach. It was agreed by counsel for the applicant that the application for review in the present case turned on the very narrow issue which has been identified above.
It is clear that the first named applicant and the second named applicant did not satisfy the relevant criteria at the time that the application for the visa was made. In those circumstances, no jurisdictional error has been demonstrated on the part of the Tribunal.
It cannot be said that no other rational or logical decision-maker could not have made the same decision in respect of the way in which the decision was made by the Tribunal in the sense as set out by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] which provides as follows:
[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
Neither could the decision be considered as legally unreasonably or one lacking an evident and intelligible justification as such concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was stated as follows:
This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness134. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power135. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
The application for review is without merit and is dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Egan
Date: 31 January 2019
0
3
3