Singh v MICMSMA

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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

  1. 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.

  2. 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…

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Details
Case
[2021] FCCA 905
Decision Date

CaseChat Overview and Summary

The applicant, Mr. Singh, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of his Temporary Graduate visa application. The core of the dispute concerned whether Mr. Singh had satisfied clause 485.213 of the Migration Regulations 1994, which requires an applicant to provide evidence of having applied for an Australian Federal Police (AFP) check within the 12 months immediately preceding the visa application.

The legal issues before the court were whether the AAT had committed jurisdictional error by misinterpreting clause 485.213 and by making a factual finding not supported by probative evidence. Specifically, the court had to determine if the Tribunal had erred in concluding that Mr. Singh had not applied for an AFP check within the relevant 12-month period, and whether the Tribunal had wrongly imposed a requirement for a "Complete Disclosure Certificate" when the regulation only mandated evidence of an application for an AFP check.

Humphreys J found that clause 485.213 of the Regulations does not define "Australian Federal Police check" as requiring a "Complete Disclosure Certificate." This requirement appeared to be a policy decision outside the Regulations, and for such a specific form to be mandatory, clear words would need to be used in the Regulations. The court agreed with the reasoning in *Panchal* that "accompanied by" refers to evidence provided at the time of lodging the application, not statements within the application itself or evidence added later. The Tribunal had erroneously concluded that the AFP check applied for by Mr. Singh prior to his visa application was not sufficient because it was not a "Complete Disclosure Certificate," despite the evidence showing he had applied for an AFP check on 13 August 2018, the day before lodging his visa application on 14 August 2018.

The court concluded that the Tribunal had misinterpreted clause 485.213 by requiring a specific form of AFP check that was not mandated by the regulation. Consequently, the Tribunal's decision was set aside, and the matter was remitted to the AAT for redetermination according to law.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 oneThe 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 twoThe 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

Ratio Decidendi

Legal Principle Established

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 decisionCONSIDERATION 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.