Prabhudeva v Minister for Home Affairs
[2019] FCCA 3758
•11 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRABHUDEVA v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3758 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Temporary Graduate visa application – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision of Delegate of the Minister for Home Affairs not to grant a Temporary Graduate (Class VC) (Subclass 485) visa to the applicant – applicant had not applied for an Australian Federal Police check during the 12 month period immediately before the day he made his Temporary Graduate visa application as required by cl.485.213 of the Migration Regulations 1994 (Cth) – applicant asserted that the Administrative Appeals Tribunal had failed to exercise its jurisdiction by failing to consider all aspects of his claims and in not accepting an InterCheck National Criminal History Check obtained prior to his visa application or alternatively an Australian Federal Police check obtained after the visa application as satisfying cl.485.213 – no jurisdictional error established by the applicant – application for juridical review dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Annam v Minister for Home Affairs [2019] FCA 237 |
| Applicant: | HRUSHIKESH PRABHUDEVA |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 530 of 2019 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 11 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr J. Hutton |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 6 March 2019 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $4,000.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 6 February 2020 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 530 of 2019
| HRUSHIKESH PRABHUDEVA |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicant is a male citizen of India aged 28 years, having been born on 25 March 1991.
By Application filed in this Court on 6 March 2019 he seeks to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 8 February 2019 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 29 May 2018 refusing to grant to him a Temporary Graduate (Class VC) (Subclass 485) visa (Temporary Graduate visa) in the post-study work stream.
Background
It was a primary criterion that the Applicant satisfy cl.485.213 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations), which required as follows:
485.213
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.
The Applicant lodged his application for the Temporary Graduate visa on 28 February 2018. In his Temporary Graduate visa application form, the Applicant answered affirmatively to the question which asked him, under the heading “Australian Federal Police”, as follows:
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 AFP for a check of criminal records (AFP Check)?
The Applicant also gave a reference number and date for the claimed AFP Check.
Then by letter dated 27 March 2018 the Applicant was requested by the Department of the Minister (Department), as follows:
Character requirements – Australian Federal Police (AFP) National Police Check
In order to be granted a visa to enter or remain in Australia you must meet the character requirement. If you are 16 years old or above and have lived in Australia for a total of 12 months or more in the last 10 years (these 12 months are calculated cumulatively and need not have been consecutive) you need to obtain a 'Complete Disclosure' AFP National Police Certificate by completing a National Police Check Application Form. A colour copy of the AFP certificate must be provided to us.
The letter also advised the Applicant that he could withdraw his Temporary Graduate visa application at any stage during the processing of it. In response to the Department’s request, the Applicant provided a copy of an InterCheck National Criminal History Check dated 16 January 2018 (InterCheck Check), bearing the reference number earlier given by him in his Temporary Graduate visa application form.
The InterCheck Check stated that there were no disclosable Court outcomes recorded against the Applicant’s name. The InterCheck Check gave as its raison d’être a connection with employment and the Applicant, at the hearing today, indicated that he had obtained it through his employer, Axiom Technologies. The InterCheck Check indicated on its face that there were limitations on its accuracy, that it was not necessarily complete and that it “may not include all police information about the applicant”. It also warned that it should only be used in connection with its stated category and purpose, being related to the employment of the Applicant. Clearly this InterCheck Check was not an AFP Check as required by cl.485.213 of the Regulations.
Decision of Delegate
The Delegate focused on Public Interest Criterion 4001 (PIC 4001) and cl.485.216 of the Regulations and refused the grant of the Temporary Graduate visa to the Applicant.
It is unnecessary for the present purposes to say anything more about the decision of the Delegate.
Decision of Tribunal
The Applicant lodged an application for merits review of the decision of the Delegate with the Tribunal on 12 June 2018 and gave a copy of the Decision Record of the Delegate to the Tribunal at the same time.
It would seem that the Applicant had obtained, on an unspecified date, an AFP Check dated 13 July 2018 which certified, consistent with the InterCheck Check, that there were no disclosable Court outcomes recorded against his name.
By letter dated 11 January 2019 the Tribunal invited the Applicant to a hearing on 8 February 2019 and stated:
Clause 485.213 of Schedule 2 to the Migration Regulations 1994 requires that, when your visa application was made, it was accompanied by evidence that you had applied for an Australian Federal Police (AFP) check during the 12 months immediately before the day the visa application was made. Giving more than a statement or answer in your visa application form about this is required. Your application for the visa was refused because it was not accompanied by evidence that you had applied for an AFP check Complete Disclosure Statement.
You are now invited to give information or evidence about whether your visa application was accompanied by evidence that you had applied for an AFP check during the 12 months immediately before the day the visa application was made. Please note that information about an AFP check applied for on or after the day your visa application was made may not satisfy this requirement.
The Applicant appeared at a Tribunal hearing on 8 February 2019 to give evidence and present arguments. At the hearing he submitted to the Tribunal a written statement dated 7 February 2019, in which he appeared to assert that the InterCheck Check was sufficient to comply with and satisfy cl.485.213, cl.485.216 and PIC 4001 of the Regulations.
From [1] – [13] of its Decision Record the Tribunal recited the factual background, and from [14] – [16] it recorded as follows:
[14] The criminal history check the applicant provided is not an AFP Complete Disclosure Certificate, which was the statement from an appropriate authority that was requested of him. The Tribunal is not satisfied that the receipt or reference that he provided with his visa application relates to an AFP Check – it relates to the InterCheck national police check document. The applicant has provided the Tribunal with an AFP Check dated 13 July 2018, issued about two months after the applicant had been notified that his visa was refused. He said he was told to provide it to the Tribunal by a migration agent. It has been considered, as has the oral evidence the applicant gave at the hearing.
[15] The applicant confirmed at the hearing that it was the InterCheck national police check that he had applied for when he lodged the visa application and that it was the InterCheck police check that he provided when the AFP Check was requested.
[16] On the evidence before the Tribunal, the Tribunal finds that the visa application was not accompanied by evidence that the applicant had applied for an AFP Check during the 12 months immediately before the day the visa application was made. The AFP Check the applicant has provided to the Tribunal is dated 13 July 2018 and was applied for, on the applicant’s evidence, after the visa was refused. He had not applied for an AFP Check at the time he made the visa application. The applicant does not therefore meet cl.485.213 of the Regulations.
Accordingly, the Tribunal concluded that the Applicant did not meet and satisfy cl.485.213 of the Regulations and it affirmed the decision of the Delegate not to grant the Temporary Graduate visa to the Applicant.
Ground of Attack on Tribunal Decision in this Court
The Applicant relied upon the following Ground:
1. The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.
Consideration
Clause 485.213 of the Regulations has recently been considered in the Federal Court by Steward J in Boddu v Minister for Immigration and Border Protection [2019] FCA 1340, where at [8] his Honour stated as follows:
[8] In my view, the second element of the test is made out here. If the judgment below is assumed to be wrong, the applicant will suffer substantial injustice if she is not granted leave. More problematic for the applicant, however, is the first element of the test. The requirements of cl 485.213 are clear. When the visa application was made, it had to be accompanied by evidence that the applicant had applied for a police check during the preceding 12 months. The applicant had not done this. It is also my view that there is no room here for a test of temporal connection of the kind considered in Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562 . In that case, the applicant had in fact applied for a police check before making the visa application, but answered “no” in the visa application form concerning that issue. The police check was supplied after making the application. It was found that this was sufficient to show that such a check had accompanied the application. Here, unlike the situation in Anand, no application for a police check had been made in the preceding 12 — month period. Moreover, the learned primary judge also rightly recognised that the language of the regulation considered in Anand is different to the language found in cl 485.213.
(emphasis added)
In Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 Tracey J, with the agreement of Charlesworth and Derrington JJ, said of cl.485.223 of the Regulations (which is in the same terms as cl.485.213 except that its subject matter required evidence of a skills test by a relevant assessing authority) as follows:
[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.
[17] The provision aims to ensure that a person who applies for a visa has applied for his or her skill assessment and is therefore ready and willing to undergo the assessment at the earliest opportunity. If the provision was not enacted in that form, a visa applicant might use the visa application process, including processes associated with merits review by the Tribunal, to expand the time in which he or she acquires the skills necessary to fulfil the substantive visa criterion. In that way, the Regulations facilitate efficient decision‐making and guard against delay by visa applicants who are not ready at the time of the visa application to undergo the necessary assessments.
[18] Responsibility for obtaining the evidence is that of the visa applicant, not the Minister. The Regulations give primacy to that consideration over personal considerations that might explain that the reason why a person has been unwilling or unable to obtain evidence of the assessment application is benign…
Further, at the hearing Mr Hutton, who appeared for the Minister, referred me to [13] of the decision of Charlesworth J in Annam v Minister for Home Affairs [2019] FCA 237, which stated as follows:
[13] It was then argued that the criterion in cl 485.213 of the Regulations is not mandatory at all. I do not consider that that argument has any prospects of succeeding on the proposed appeal. It is contrary to authority of the Full Court of this Court in relation to other provisions of the Regulations that cannot be relevantly distinguished: Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [20] (Tracey, Charlesworth, Derrington JJ).
Mr Hutton also referred me to [4] of the decision of Davies J in Rahim v Minister for Immigration and Border Protection [2018] FCA 1736 which confirmed that matters of fairness or equity do not bear upon the issue here of whether or not the InterCheck Check should have been acceptable as fulfilling the criterion comprised in cl.485.213 of the Regulations and confirmed that the Tribunal had no discretion to accept the InterCheck Check in lieu of an AFP Check for the purposes of that criterion.
In my view, the Tribunal meaningfully considered the relevant facts and circumstances and did not fail to consider the Applicant’s claims or evidence. The simple fact of the matter was that, in the absence of an application for an AFP Check in the 12 months immediately before 28 February 2018, the Applicant could not satisfy cl.485.213 of the Regulations and the Tribunal was legally correct in affirming the Delegate’s decision not to grant the Temporary Graduate visa to him.
I am unable to discern any jurisdictional error affecting the decision of the Tribunal.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 19 December 2019
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