RAHIM v Minister for Immigration

[2018] FCCA 1814

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAHIM v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1814

Catchwords:
MIGRATION – Application for judicial review – skilled work visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulation 1994, reg. 485.213

Applicant: AQUIBUR RAHIM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 120 of 2017

Judgment of: Judge Riethmuller

Hearing date: 21 June 2018

Date of Last Submission: 21 June 2018

Delivered at: Melbourne

Delivered on: 21 June 2018

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Mr Tran

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 120 of 2017

AQUIBUR RAHIM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 December 2016.  The decision affirmed the decision of a delegate to refuse to grant the applicant a Skilled (Provisional) (Class VC) subclass 485 visa. 

2. The applicant had lodged his visa application with what he believed to be all of the relevant supporting documents which indicate that he had a strong case to obtain the visa that he sought.

3. Unfortunately, when the applicant came to the requirement to obtain an “Australian Federal Police Check” as set out in reg.485.213 to the Migration Regulations 1994 (“the Regulations”), the applicant turned to an internet search engine, Google, to identify where one obtains such a police check.  The Google search provides a number of responses, a copy of which is Exhibit ‘A’ in these proceedings.  Importantly, the very first response appears to be a paid advertisement by an organisation called cvcheck.com offering “Australian Police Checks”.  The second entry is from what appears to be a similar commercial agency.  It is only the third entry which is the Australian Federal Police (“AFP”) website.

4. No doubt lured by the advertisement appearing at the top of the Google search, the applicant clicked on the Australia Police Checks link and dutifully paid his $44.90 to obtain his police check.  What the applicant received was a document described as a “National Police Check” which shows that he had no criminal history. The applicant did not receive the National Police Certificate that is issued by the AFP, as he had not gone to the AFP website.

5. Whilst there is no evidence about the organisation cvcheck.com, the certificate they issue indicates that they access the relevant databases maintained by police to identify whether or not a person has a criminal history.  The cvcheck.com website does have on its page – not in particularly large font – a note that national police checks cannot be used for immigration, visa or IVF applications.  I accept that the applicant did not notice that particular line in an otherwise busy webpage and genuinely obtained the national police check document to support his visa application.

6. I have no reason to doubt that had the AFP website been the first one that came up on the Google search, the applicant would have obtained the certificate from the AFP which, of course, would have satisfied cl.485.213. 

7. The Tribunal found that a result of the fact that the applicant had the cvcheck.com certificate rather than the AFP certificate, he therefore did not fulfil that requirement of the visa application.  That requirement can only be fulfilled during the 12 months immediately before the day the application is made, and therefore, the applicant was unable to rectify the defect of not having the AFP check.

Grounds of the Application

1. The applicant sets out a number of grounds in his application which appear largely to be pro forma grounds as follows:

   1. Response by the Tribunal was affected by actual bias and decision was made based on prejudgment.

   2. The decision of AAT was made without jurisdiction or was affected by jurisdiction error in that the Tribunal acted in breach of natural justice or failed to give procedural fairness to the applicant.

   3. The Tribunal ignored the evidence of the applicant.

   4. Applicant did lodge the correct AFP which meets the 485 visa requirement.

   5. Applicant do meet all the criteria for the 485 visa to be granted.

   6. The Tribunal was provided with all documents at the hearing but despite this the Tribunal did not consider them.

2. The grounds do not largely relate to the actual reasons given by the Tribunal.

3. On the material before me, there is nothing to indicate the Tribunal was affected by bias or apprehended bias.

4. It is clear that the Tribunal did have jurisdiction and that they did properly consider the material before them.  It is also clear that the applicant did lodge the correct AFP certificate but unfortunately after the date of application, and therefore, it was not sufficient to meet the criteria for the visa. 

5. I have considered in this case whether or not one could interpret the words “Australian Federal Police check” to include the “National Police Check” provided by cvcheck.com; however, it seems to me that those words are quite clear and refer to the AFP.  In this regard it would not be reasonably open to the Court to stretch the definition of those words to another apparently private organisation.  It would also run contrary to what appears to me to be a clear policy underpinning for that Regulation which is that the police check document comes from the AFP so that the Department can rely upon it as being a correct and reliable certificate rather than potential errors in a certificate issued by a commercial organisation.

6. In these circumstances, it is clear that the applicant cannot obtain the visa that he seeks as he has not made an application supported by the police check. 

7. In the circumstances, I am not satisfied that the applicant has made out any of the grounds for review.

Conclusion

1. I am persuaded that this applicant had genuinely attempted to lodge all of the correct supporting documents and had clearly taken steps to obtain a police check.  The applicant paid a fee to obtain a police check and lodged it.  Immediately after he became aware that the police check he had obtained was not from the AFP as required, he obtained and lodged a police check from the AFP.  It appears that the technical nature of the regulations has potentially caused significant injustice to this particular applicant.  In these circumstances it is the type of case which may well be appropriate for the Minister to consider if the applicant makes an application for the Minister to consider exercising the general discretion open to the Minister under the Migration Act 1958.  However, I also note that that is a matter entirely for the Minister, and I refrain from making any recommendation with respect to what outcome might be appropriate for the Minister in that regard. 

2. For the reasons given, I formally dismiss the current application.

Costs

1. In the unusual circumstances of this case where, it seems that: (a) the applicant has made a genuine application, (b) has obviously taken the proper steps to attempt to obtain the correct certificate; and (c) has been thwarted by the combined effect of the very strict regulatory basis for the visa application and reliance upon an advertisement that Google threw up that gave the appearance of providing an appropriate check, I will not make an order as to costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 5 July 2018