Sehgal v Minister for Immigration
[2018] FCCA 2587
•21 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEHGAL v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2587 |
| Catchwords: MIGRATION – Application for judicial review – skilled visa – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.417 Migration Regulations 1994, reg.485.213 |
| Cases cited: Anand v Minister for Immigration & Citizenship [2013] FCA 1050 Mir v Minister for Immigration and Border Protection [2018] FCA 697 Rahim v Minister for Immigration & Anor [2018] FCCA 1814 |
| Applicant: | RAHUL SEHGAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 870 of 2017 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 21 August 2018 |
| Date of Last Submission: | 21 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 21 August 2018 |
REPRESENTATION
| The Applicant appeared In Person |
| Counsel for the First Respondent: | Mr Yuile |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The application filed 1 May 2017 be dismissed.
There be no orders as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 870 of 2017
| RAHUL SEHGAL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore)
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 15 May 2017. The Tribunal dismissed an application for review of a decision of a delegate refusing to grant the applicant a Skilled Provisional (Class VC) Subclass 485 visa.
The applicant is a citizen of India. The applicant has been in Australia lawfully and in accordance with his visa conditions for some time. The applicant became eligible to apply for this category of visa and did so on 24 August 2016.
There is no suggestion that the applicant has been anything other than appropriate in his behaviour, nor that he is anything other than genuine in his desire for the visa and in his capacity to meet the substantive visa conditions. The application, as completed by the applicant, was an online form. On the first page of the form (which appears at court book p.1), the form asks whether or not he is a person who has obtained, in the last 12 months, an Australian Federal Police Check to determine if he has any criminal records. The applicant answered ‘no’, that he hadn’t obtained the police check as yet.
Unfortunately for the applicant, reg.485.213 of the Migration Regulations 1994, relevantly provides a condition that:
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, having received the delegate’s decision, which is at court book p.18, effectively identifying for him that the police check had to either have been obtained or sought prior to lodging the visa application, then obtained the check. The police check shows that he has no police history or criminal history whatsoever. A copy of the police check appears in the court book at p.44.
The applicant explained that it was an honest mistake, and given that the online form did not give him any warning nor prevent him from proceeding with lodging the application, he did not realise the significance of having to obtain the police check prior to completing the application.
I accept that his submissions in this regard are entirely reasonable. In the age of online applications, one expects that online forms will either provide a warning or refuse to allow one to proceed further if the way in which they have been filled out will not result in the valid lodgement of such a form.
The applicant appealed the decision of the delegate to the Tribunal who, quite properly, for the same reasons, refused the application. The applicant seeks judicial review of the Tribunal’s decision, setting out a single ground in narrative form as follows:
Under ss 43(3) or 45(2) of the AAT Act, the decision of the Administrative Appeals Tribunal (AAT) was effected by jurisdictional error. Firstly, the decision-maker at AAT ignored to look at the relevant materials the Applicant had attempted to present, being the correspondence records of a valid application made to the Australian Federal Police for a check of criminal records during the period immediately the day the Applicant lodged his visa (subclass 485 visa) application. Secondly, the decision-maker at AAT failed to adopt a fair process in making the decision. According to the written Tribunal fact sheet of the case, the Applicant was not offered the chance to make a plea before the decision being made.
Further particulars are to be presented at Court.
It appears to me that there is no basis upon which the applicant could succeed in the judicial review proceedings. The applicant is not eligible for the visa, as he has not complied with the relevant visa condition requiring him to have evidence of or having applied for the police check accompanying the visa application. Even accounting for the looseness of timeframe surrounding the word ‘accompanied’ (see Anand v Minister for Immigration & Citizenship [2013] FCA 1050) it is now far too late to provide a copy of the police check or evidence that he applied for the check.
Had the applicant received any form of warning from the electronic form he would have obtained the police check or, if it were not too late now to provide a police check, he would seek to obtain from his employer a police check that the employer obtained when he obtained a job prior to applying for this particular visa. Unfortunately, those things cannot assist him at this stage in the process.
As he cannot obtain the visa, it is appropriate that his application be refused.
I can only suggest that the applicant consider making an application to the Minister under s.417 of the Migration Act 1958. As I set out in my decision in Rahim, it is not appropriate for me to issue any direction or recommendation to the Minister as the Minister’s decision under that section is entirely a matter for the Minister. However, it appears to me that it is the type of case that would appropriately be drawn to the Minister’s attention for consideration.
I note that this is a similar problem to which occurred in two other cases: Mir v Minister for Immigration and Border Protection [2018] FCA 697 and Rahim v Minister for Immigration & Anor [2018] FCCA 1814.
In this case, the circumstances are somewhat unusual, in a way similar to but not precisely the same as those in Rahim. In Rahim, I declined to order costs on the basis that the applicant had made a genuine application, had taken proper steps to obtain a police check as soon as he was aware of the difficulty, and was effectively thwarted by the strict regulatory conditions for the visa, and the lack of clear online resources.
In Rahim’s case, the applicant had actually obtained a police check that, unfortunately, was from an agency that acts as an intermediary between the Australian Federal Police and those who seek police checks and not from the Australian Federal Police directly.
Given the circumstances in which this matter arises and the obvious significance for an applicant who has made his life in Australia for many years, usefully participating in education and the community and Australia, I am ultimately persuaded that the facts are sufficiently unusual that it would not be appropriate to make a costs order in this case.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 12 September 2018
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