Singh v MICMSMA
[2021] FCCA 905
•5 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 905
File number(s): SYG 26 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 5 May 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Skilled (Provisional) (Class VC) Subclass 485 visa – Migration Regulations 1994 (Cth), Sch 2, cl 485.216 – requirement that visa application be accompanied
by evidence of police check – application upheld.Legislation: Migration Act 1958 (Cth) ss 55
Migration Regulations 1994 (Cth) cl 485.213
Evidence Act 1995 (NSW) s 55(1)
Cases cited: Anand v Minister for Immigration and Citizenship and Anor (2013) 215 FCR 562
Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251
Khan v Minister for Immigration and Border Protection [2018] FCAFC 85
Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; 162 CLR 24
Panchal v Minister for Immigration and Citizenship and Another (2012) 265 FLR 144
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32
Number of paragraphs: 40 Date of last submission/s: 14 April 2021 Date of hearing: 14 April 2021 Place: Parramatta Solicitor for the Applicant: Mr Arch of Concordia Pacific Lawyers Solicitor for the Respondents: Ms Evans of Sparke Helmore Lawyers ORDERS
SYG 26 of 2019 BETWEEN: GAGANDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
5 MAY 2021
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs.
2.The application is upheld.
3.An order that the decision of the Administrative Appeals Tribunal be quashed.
4.A writ of mandamus directed to the Administrative Appeals Tribunal requiring it to determine the Applicant’s application according to law.
5.The First Respondent is to pay the Applicant’s costs fixed in the amount of $7206.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
On 14 August 2018, the applicant applied for a Skilled (Provisional) (Class VC) Subclass 485 visa. A delegate of the Minister for Immigration (“the delegate”) sought further information in the form of a Complete Disclosure Australian Federal Police (“AFP”) National Certificate. The delegate stipulated that the certificate needed to be provided within 28 days of the date of the letter, being 18 September 2018. On 26 October 2018 the delegate refused to grant the applicant his visa as the applicant did not satisfy cl 485.216(1) of the Migration Regulations 1994 (Cth) (“the Regulations”) in that he had not provided an AFP check in the form of an AFP Complete Disclosure certificate.
The applicant had provided evidence that he had applied for a National Police Check prior to the lodgement of his application, but this was not in the form required by the Department. The applicant then sought such a Certificate, however, the Certificate provided was dated after the date of the submission of the application. The delegate found that the AFP Complete Disclosure Certificate needed to be applied for prior to the lodgement of the application and, ultimately, refused the applicant his visa.
The delegate noted as follows at CB 41:
•The applicant provided the receipt #4681312PC for the National Police Check to support their application. However, this is not the Complete Disclosure Australian Federal Police clearance as required by the Department. …
•Detailed instructions were provided with this request as to how to apply for the appropriate Police Check which would satisfy the requirements for the visa. The applicant was given 28 days to respond to the request.
•On 16 October 2018, the applicant provided the receipt #93748077 for the National Police Check applied for on 8 October 2018, which is dated after the lodgement of the application and is not the Complete Disclosure Australian Federal Police clearance as requested by the Department.
Attached, at CB 53, is a National Police Certificate dated 22 October 2018 with the heading ‘Complete Disclosure’ that relates to the applicant.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 18 December 2018, the Tribunal affirmed the decision not to grant the applicant his visa.
The applicant now seeks judicial review of the Tribunal’s decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal decision is relatively short. After setting out the background, the Tribunal set out the relevant legislative requirements. This relevantly includes that the applicant had, in the last 12 months, applied for a check of criminal records.
At the hearing, the applicant confirmed that before he applied for the visa in August he had applied for a Police check. This police check was provided to the applicant in September 2018. The applicant provided a reference number. The applicant said that when he received the police check relating to that reference number, he realised it was the wrong one, that is, it was not an AFP Complete Disclosure Certificate. The Tribunal noted that it was satisfied that the application reference number the applicant provided that accompanied his visa application related to the September 2018 certificate.
A little over a month after the visa application was made, 19 September 2018, a case officer of the Department sent the applicant an email, requesting that he provide more information. The applicant was provided with detailed information about how to go about requesting the required AFP Complete Disclosure Certificate and was given 28 days to respond.
On 16 October 2018, the applicant provided a receipt for an AFP Complete Disclosure Certificate application dated 8 October 2018. This post-dates the visa application made on 14 August 2018 by more than seven weeks. The applicant confirmed at the hearing that the AFP Complete Disclosure Certificate dated 22 October 2018 that he has now provided (CB 53) relates to the 8 October 2018 receipt. The Tribunal concluded that the applicant had not provided the AFP Police Check within the 28 day period stipulated by the delegate and it was on this basis that the delegate had refused the application.
On the evidence before the Tribunal, it concluded the application for the AFP Complete Disclosure check, dated 8 October 2018, was not made in the 12 months immediately before the date the visa application was made.
Accordingly, the Tribunal found that the applicant did not satisfy cl 485.213 of the Regulations. The Tribunal affirmed the decision not to grant the applicant his visa.
It is to be noted that the delegate and the Tribunal refused the application on slightly different grounds. The delegate refused the application on the basis that the police check in the required form was not provided within the 28 day time period. The Tribunal found that the police check had not been applied for in the 12 months prior to the application.
GROUNDS OF JUDICIAL REVIEW
The two grounds of judicial review relied upon are set out in an Initiating Application dated 8 January 2019. They are as follows:
Ground one
The Tribunal committed jurisdictional error by misinterpreting one of the criteria applicable to the determination of the visa application, clause 485.213 of Schedule 2 of the Migration Regulations 1994.
Particulars
•Clause 485.213 requires that an application for a Temporary Graduate visa be accompanied by evidence that the applicant has applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.
•The evidence before the Tribunal at the hearing that was held on 18 December 2018 established that the applicant had in fact applied for an Australian Federal police check during the relevant 12 month period immediately before the day the application was made: the application for the Temporary Graduate visa was made on 14 August 2018 and the applicant had applied for an Australian Federal Police check on the previous day, 13 August 2018.
•The Tribunal erroneously concluded that the applicant had not applied for an Australian Federal Police check prior to the date of making his visa application on the basis that the Australian Federal Police check that was applied for by the applicant prior to making the visa application was not a “Complete Disclosure Certificate”.
•Clause 485.213 does not require that the application for an Australian Federal Police Check made prior to the filing of the visa application be for a “Complete Disclosure Certificate”. By its express terms, clause 485.213 requires only that evidence accompany the visa application that an application has been made for an Australian Federal police check, but does not otherwise specified the form or contents of the police check that is sought.
•The Tribunal misinterpreted clause 485.213 and thus committed an error of law and applied an incorrect test by construing the regulation as requiring that a particular form of Australian Federal police check be applied for – namely a “Complete Disclosure Certificate” – before the making of a visa application, when no such requirement is in fact imposed by the regulation.
Ground two
The Tribunal committed jurisdictional error by making a factual finding that was not supported by probative evidence.
Particulars
•The Tribunal erroneously concluded that the applicant had not applied for an Australian Federal Police check during the 12 month period immediately preceding the making of the visa application.
•The evidence before the Tribunal established that the applicant had in fact applied for an Australian Federal Police check during the relevant 12 month period.
•The Tribunal’s incorrect conclusion the applicant had not applied for an Australian Federal Police check was the factual predicate on which the Tribunal based its decision to affirm the refusal of the visa application.
•The Tribunal’s decision, being unsupported by probative evidence, was therefore legally unreasonable.
THE APPLICANT’S SUBMISSIONS
In relation to Ground one, it was submitted that cl 485.213 of the Regulations only makes reference to the applicant having “applied for an Australian Federal Police Check during the 12 months immediately prior to the day the application was made”. The solicitor for the applicant submits that nowhere does the Regulations refer to a “Complete Disclosure Certificate”. It was submitted that the meaning of a legislative provision must be interpreted through its text, context and purpose.
There is nothing that requires a reading in to cl 485.213 of the Regulations that an Australian Police Check must be a “Complete Disclosure Certificate”. All that is required is an Australian Police Check simpliciter. Nothing in the language limits this to a “Complete Disclosure Certificate”. The solicitor for the applicant submits that the Tribunal disregarded evidence within the delegate’s decision that the applicant had made an application for a Police Check prior to the lodgement of his application, when, in fact, he had done so. In so doing, it was submitted that the Tribunal committed jurisdictional error.
In relation to Ground two, the misinterpretation of the requirements of the Regulations was a finding that could not be supported by probative material or logical grounds. By making a misinterpretation as to the requirements of cl 485.213 of the Regulations, the Tribunal overlooked material that the applicant had, in fact, applied for a Police Check prior to the lodgement of his application. The solicitor for the applicant submitted that the decision was thus illogical, and affected by jurisdictional error.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent submits that the application for the visa by the applicant was not accompanied by evidence that he had applied for the relevant Police Check. The first respondent submitted that, all the applicant did, was provide a reference number “4681312PC”. There is no evidence as to what this reference number relates to. It was submitted that this reference number is not evidence that the applicant applied for a Police Check as required in the previous 12 month period: see Panchal v Minister for Immigration and Citizenship and Another (2012) 265 FLR 144 (“Panchal”) at [85]. It is submitted that the number was a mere statement within the visa application and was not evidence as the applicant contends.
As to ground one, even if the applicant’s assertion that the provision could be met by “any” Police Check, the first respondent submits that there is no evidence that the applicant had applied for a Police Check, as required, prior to the submission of his application. The only evidence was the October 2018 Check that did not meet the requirements of being applied for prior to the lodgement of the application. In Anand v Minister for Immigration and Citizenship and Anor (2013) 215 FCR 562 (“Anand”), Katzman J held at [27]-[28] that evidence “accompanying” a visa application could be supplied after the visa application was lodged. However, this judgement was concerned with the construction of a different provision of the Regulations.
In Khan v Minister for Immigration and Border Protection [2018] FCAFC 85, the Full Court did not expressly approve of the statement in Anand stating at [15]:
Whether or not there is some flexibility in the test, nothing decided in Anand permits the temporal requirement to import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant.
In relation to ground two, the first respondent submits that the factual premise relied upon by the applicant cannot be made out. No evidence was adduced to demonstrate whether the reference number in the visa application related to an application for an AFP check applied for in the previous 12 months. The first respondent submits that there is thus nothing legally unreasonable, illogical or irrational in the Tribunal’s conclusion.
Finally it was submitted that if it is determined that the application was not accompanied by evidence of the applicant having applied for an AFP Check in the 12 month period prior to making the application, it would be futile to remit the matter back to the Tribunal as it would be required to make the same decision
CONSIDERATION
Clause 485.213 of the Regulations which is a primary criteria that must be satisfied for the grant of a visa states as follows:
(1)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.
It is to be noted that nowhere in the Regulations is there a definition that an “Australian Federal Police check” must be in the form of a “Complete Disclosure certificate” for the purposes of cl 485.213 of the Regulations. This requirement appears to be a policy decision outside of the Regulations. If a “Complete Disclosure certificate” is what is required, then clear words need to be used in the Regulations if a failure to provide the certificate in the required form is to be used as a reason for refusing the visa application.
The crux of the first respondent’s submission is that the application was not “accompanied by evidence” that the applicant had applied for an AFP Check.
In Panchal, Scarlett FM (as he was then) considered a matter that was somewhat similar to the current factual situation. In that case, the applicant relied upon Australia Post documentation showing the date that he claims he sent an application to the AFP for the requisite police check. Scarlett FM noted at [78] that evidence is defined in s 55(1) of the Evidence Act 1995 (NSW) as:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
The Court agrees with His Honour’s subsequent comment that this hardly resolves the issue in question.
At [85] His Honour found that “accompanied by” clearly refers to something other than that which is contained within the online application form. At [85]-[87] His Honour continued as follows:
[85]. Thus, it appears the clause contemplates evidence being provided at the same time as the application form is lodged, whether that be simultaneously or on the same day. If that is so, and I believe it is, statements contained within the application cannot by any stretch of the imagination be described as “accompanying” the application. They are statements within the application.
[86]. If, as the applicant submits, the clause refers to the application as a continuum, so that “time of application” means the period during which the application is being considered, the addition of evidence during that period of consideration can hardly be described as “accompanying” the application. On the applicant’s proposed definition, the evidence being provided during the period of consideration does not accompany the application, but becomes part of it.
[87]. To my mind, the applicant’s submission stretches the concept of “accompanying” far beyond its ordinary English meaning. I am not persuaded by the submission.
There has been considerable other judicial consideration relating to the correct interpretation of some of the Regulations. In Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251, the High Court noted, at [17], that certain requirements, such as evidence of an Australian Federal Police check and arrangements that the applicant had made to undergo a medical examination were clearly required to be provided “at the time of the application”. The High Court concluded that there was no such requirement in respect of a proof of compliance with the vocational English or competent English criterion.
At [24] to [26], the following was said:
24. The evident purpose of the alternative criteria in cl 885.213 is to ensure that, when the Minister or delegate decides upon the application for a visa, the applicant will have demonstrated recent competency in the English language. It does not follow that the criterion can only be satisfied by evidence provided to the Minister at the time of submitting the application. In this connection it is useful to note the contrast between the requirements of cl 885.213 and cll 885.214 and 885.215.
25. The requirement in reg 1.15B that the requisite test has been conducted "not more than 2 years before the day on which the application was lodged" is susceptible of the construction that the test was conducted no earlier than two years before the application was lodged. So construed, it does not require that the test has to be conducted before the application is lodged. That requirement can only be imposed by some direct operation of the undefined heading "Criteria to be satisfied at time of application".
26…. Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.
The Full Federal Court in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 considered whether or not the Minister could consider compelling reasons which had arisen, post the submission of an application for a protection visa, and, in particular, the criteria under cl 820.211(2)(d) (ii) of the Regulations. At paragraph 14, Dowsett J quoted the following from Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; 162 CLR 24 at [45], that, in the ordinary case, a decision maker is required to take into account all the information before him or her:
It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.
The Full Federal Court went on to find that the Minister was required to consider any compelling circumstances which had arisen subsequent to the lodgement of the application for a protection visa.
Reference in that case is also made to s 55 of the Migration Act 1958 (Cth) (“the Act”), which reads as follows:
55(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
(2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.
The first respondent seeks to argue that no evidence was supplied that an Australian Federal Police check had been applied for in the 12 month period before the application was made. The delegate determined the matter on the basis that the information requested had not been supplied within the 28 day time frame stipulated. This is to be contrasted with paragraph 11 of the Tribunal’s decision where the Tribunal accepted that a Police check had been applied for prior to the application being lodged.
Noting that the role of the Court is not to engage in merits review or fact find, the Court accepts the findings of the Tribunal that the applicant applied for an AFP Check the day prior to his lodgement of the application. Further, the applicant provided evidence of that by supplying the relevant reference number for that check. In the visa application form the applicant provided the date the Police check was requested, as well as the reference number provided by AFP in response to the request. The Court is satisfied that this is evidence of applying for a Police check.
Given the check was not in the form required by the Department, the applicant was contacted and requested to provide a check in the required form. The applicant did that. This action infers acceptance that the applicant had applied for a check but not in the required form. The applicant complied with the request and provided the check in the required form but outside the time frame stipulated.
The remaining issue for the Court to resolve is whether the supplying of the reference number for the first Police check was evidence that “accompanied the application”. Scarlet FM in Panchal found that if information contained within the application, it did not. As a matter of comity, the Court is required to follow Panchal unless the Court is convinced that it is plainly wrong. To the Court’s mind however, the provision of additional information within an on online form is to draw a distinction without a difference. Nowhere in the form does it direct the applicant to attach a copy of the actual receipt for the Police check. The applicant was required to do more than simply tick a box that he had applied for a Police check. The applicant was required to provide the reference number for the check. To the Court’s mind, the provision of the reference number is evidence that “accompanies” the form, in that, it provided additional details.
In the particular and unusual circumstances of this case, the Court is satisfied that the applicant did provide evidence of applying for an AFP check as required by cl 485.213 of the Regulations. The fact that it was not in the required form required by the Department is not a matter that results in the applicant not complying with the Regulations. The Regulations clearly stipulates only “an Australian Federal Police check” not a Complete Disclosure check. That is apparently a matter of policy only. If that is what is required, then the Regulations should specify that, if it is to be used as a reason to refuse the applicant his visa.
The outcome in this case does not compromise the purpose of the Regulations as contemplated by the High Court in Berenguel cited above, particularly at [26]. Further, having provided the Police check in the required form subsequently, the Minister was entitled to consider this information pursuant to s 55 of the Act.
CONCLUSION
The application is upheld and the relief sought in the application is granted.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 5 May 2021
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