Singh v Minister for Immigration & Anor
[2011] FMCA 982
•14 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 982 |
| MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – meaning of clause 485.216 of the Migration Regulations 1994 (Cth) in requiring that visa application be accompanied by evidence that applicant has applied for an Australian Federal Police check during the 12 months immediately before the day when the application is made. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 65(1); 65(1)(b); 474; pt.8 div.2 Migration Regulations1994 (Cth); cl 485 |
| Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 Gill v Minister for Immigration and Citizenship & Anor [2010] FMCA 587 Nayeem v Minister for Immigration and Citizenship [2010] FMCA 618 Patel v Minister for Immigration and Citizenship [2011] FCA 1220 |
| Applicant: | SHABIR INDERPAL SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 519 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 30 May 2011 |
| Date of Last Submission: | 22 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | F. Ramsay |
| Counsel for the Respondent: | T. Reilly |
| Solicitors for the Respondent: | M. Alderton (Sparke Helmore) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 519 of 2011
| SHABIR INDERPAL SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 25 February 2011 and handed down on that day.
The applicant is a citizen of the republic of India (“India”) and applied to the Department of Immigration and Citizenship for a Class VC, subclass 485 Skilled – Graduate visa (“the Applicant”).
The question before the Tribunal was whether the Applicant satisfied clause 485.216 of the Migration Regulations1994 (Cth). Clause 485.216 required the Applicant to ensure that his visa application was accompanied by evidence that he had applied for an Australian Federal Police (“AFP”) check during the 12 months immediately before the day when the application was made. The Applicant lodged his visa application on 17 June 2008 but did not apply for an AFP check until 9 July 2008.
Regulation 485.216 states as follows:
“485.216 The application is accompanied by evidence that:
(a) the applicant; and
(b) each person included in the application who is at least 16;
has applied for an Australian Federal Police check during the 12 months immediately before the day when the application is made.”
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.
Background
On 17 June 2008, the Applicant applied to the Department of Immigration and Citizenship for a Skilled (Provincial) Class VC visa.
On 25 May 2009, the Delegate refused the Applicant’s visa application.
On 10 June 2009, the Applicant lodged an application for review of the Delegate’s decision by the Migration Review Tribunal.
On 25 February 2011, the Tribunal affirmed the decision of the Delegate not to grant a Skilled (Provincial) Class VC visa.
On 22 March 2011, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The Delegate’s decision
On 25 May 2009, the Delegate refused the Applicant’s application for a Skilled (Provincial) Class VC visa on the basis that the Applicant did not meet the legislative requirements for the grant of any subclasses within the VC Class.
In his visa application lodged on 17 June 2008, the Applicant stated that he had not applied for an AFP check.
On 9 July 2008, the Applicant applied for an AFP check and provided a copy of the receipt for that application to the Delegate on 15 July 2008.
As the Applicant provided evidence that he applied for an AFP check after he lodged his application, the Delegate was not satisfied that the Applicant had applied for an AFP check during the 12 months immediately before the day he lodged his visa application. Accordingly, the Delegate was not satisfied that the Applicant met the requirements of subclause 485.216.
Further, the Delegate found that the Applicant did not satisfy the criterion in subclause 487.213 that required nomination by a State or Territory government agency or that the applicant be sponsored by a relevant person.
Accordingly, the Delegate refused the Applicant the class VC subclass 485 Skilled- Graduate visa for which he had applied.
The Tribunal’s review and decision
On 10 June 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 3 February 2011, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 24 February 2011 to give oral evidence and present arguments.
On 24 February 2011, the Applicant attended the Tribunal hearing and gave evidence.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“3. As the Tribunal notes at CB 75 [6], there were two subclasses of the visa class at the time of application for the visa, including Subclass 485 (Skilled - Graduate). The Tribunal found that the Applicant’s claims were relevant to this subclass: CB 75 [7]. The Tribunal, like the delegate, found that the Applicant did not satisfy cl 485.216 (“The application is accompanied by evidence that the (a) the applicant…has applied for an Australian Federal Police check during the twelve months immediately before the day when the application is made”). Rather, the Applicant answered “no” on the application form to a question asking whether he had applied for such a check: CB 1, and subsequently on 15 July 2008 provided evidence of having applied for an AFP check on 9 July 2008 (CB 18). The Tribunal found that cl 485.216 required that an application be accompanied by evidence of an AFP check at the time the visa application was made, applying Gill v MIAC [2010] FMCA 587 (Lloyd-Jones FM): CB 79 [26-29]. It also found that the police check the Applicant subsequently applied for on 9 July 2008 could not satisfy cl 485.216 in any event as it was not evidence of an application for an AFP check in the twelve months immediately before the visa application was made: CB 79 [29]. For both reasons the Tribunal found that the Applicant did not satisfy cl 485.216 and so the visa had to be refused: see s 65(1)(b) of the Migration Act 1958 (the Act).”
In accordance with the Applicant’s own evidence, the Tribunal found that the Applicant had lodged an application for an AFP check on 9 July 2008, having lodged his visa application on 17June 2008. Accordingly, the Tribunal was not satisfied that the visa application was accompanied by evidence that the Applicant had applied for an AFP check during the 12 months immediately before the day on which his visa application was made, namely 17 June 2008.
The Tribunal affirmed the decision under review.
The proceeding before this Court
At the hearing before this Court on 30 May 2011, the Applicant was unrepresented and did not require an interpreter. Ultimately, the hearing was stood over to 22 November 2011 when the Applicant was represented by Ms Fleur Ramsay, of counsel, in accordance with the New South Wales Bar Association’s Legal Assistance Scheme.
Hearing on 30 May 2011
At the commencement of the hearing on 30 May 2011, the Applicant confirmed that he relied upon the grounds of his initiating application filed on 22 March 2011. Those grounds are substantial in length but were ultimately withdrawn by the pro bono barrister, Ms Ramsay, when she appeared for the Applicant at the second hearing.
At the hearing on 30 May 2011 and prior to Ms Ramsay’s appointment as pro bono counsel, the Applicant confirmed that he had no other documents to file in support of his application. The Applicant was invited to say whatever he wished in support of each of the grounds of his application and in support of his application generally. At the heart of the Applicant’s complaint to this Court about the Tribunal’s decision was its finding that compliance with clause 485.216 required that an application for an AFP check accompany the lodging of his visa application made on 17 June 2008.
The Applicant submitted that upon lodgement of his visa application he received an automatically generated email from the Department stating that he had 28 days in which to lodge further documents. The Applicant submitted that he provided to the Department within that 28 day period evidence of his application for an AFP check.
The Applicant referred to written submissions that he had filed on 25 May 2011 pursuant to directions made by the Court on 14 April 2011. In his written submissions, the Applicant referred to the High Court decision in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (“Berenguel”) in support of a proposition that he had 28 days following the lodgement of his visa application to lodge his AFP check. In Berenguel, the High Court considered the effect of clause 885.21 and stated as follows:
“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 cl 885.214 and 885.215 (Emphasis added).”
The Applicant also referred to s.55 of the Migration Act which states as follows:
“55. Further information may be given
(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”
These were similar arguments to those put by the Applicant and his adviser to the Tribunal. They were correctly rejected by the Tribunal.
Counsel for the first respondent referred the court to Gill v Minister for Immigration and Citizenship & Anor [2010] FMCA 587 (“Gill”) and Nayeem v Minister for Immigration and Citizenship [2010] FMCA 618 (“Nayeem”) in considering what was meant by the requirement that a visa application be “accompanied by” certain information. Gill and Nayeem found that the effect of clause 485.217, which required that a visa application be accompanied by evidence that a visa applicant has made arrangements to undergo a medical examination, was to be satisfied at the time of application. However, neither Gill nor Nayeem address the issue raised by the Applicant in relation to the construction of clause 485.216.
Counsel for the first respondent was unable to refer the Court to a case that had considered the construction of clause 485.216 and the issues raised by the Applicant before me.
For those reasons, I directed the Registrar of the Court to refer the Applicant to a lawyer on the pro bono panel for legal assistance. The New South Wales Bar Association’s Legal Assistance Scheme responded by referring the matter to Ms Fleur Ramsay, of counsel.
Accordingly, on 9 August 2011, further directions were made by me by consent that the Applicant have leave to file and serve an amended application and evidence and submissions in support of any such amended application.
On 26 August 2011, the Applicant filed an Amended Application. Ultimately, the only ground relied upon by the Applicant was ground 1 of the Amended Application which states as follows:
“1. The Migration Review Tribunal fell into jurisdictional error by misconstruing regulation 485 of the Migration Regulations 1994 in concluding that the applicant had not met the prescribed criteria within the prescribed time.
2. The Migration review tribunal fell into jurisdictional error by failing to take into account the s.56 invitation made by the Minister under the Migration Act 1958.
3. Grounds of Application
1)The decision of the Migration Review Tribunal of Australia (Tribunal) is not in accordance with the application law and rules.
2) The decision is against the weight of evidence available for the Tribunal.
3) In accordance with section 55 of the Migration Act 1958, the tribunal should have taken into account the Australian federal Police (AFP) report which was available to the decision maker at the time of the decision making. It is argued that in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (5 March 2010 (Berenguel’s case) relies on the legal principle that section 55 of the Act prevails over the “Criteria to be satisfied at the time of application” heading set out in the regulations. In addition, such an approach would ensure that decision –makers have the most recent information that is relevant to the grant of a visa when making a determination in respect of a particular visa application, thereby avoiding the “unfairness and absurdity” the High Court found to exist in Berenguel’s case.
4) The tribunal is empowered to exercise discretion to give extension of time under cluse 485.215 of the Migration Regulations 1994 (the Regulations). Similarly the tribunal has same discretion under clause 485.216 of the Regulations and discretion should have been exercised in favour of the applicant.
5) As per Berenguel’s case, it would be unfair and absurd to ignore evidence available at the time of decision that an applicant satisfies the requirement to submit and AFP check, merely because this evidence did not accompany the original visa application . There is a need to avoid construction f the regulations that lead to “plain unfairness and absurdity”. It is arguable that, Berenguel’s case stands for the proposition that all time of application criteria can be ignore, providing an applicant has submitted the evidence referred to under the “Criteria to be satisfied at time of application” subdivision of the Regulations to the department before the primary decision is made. On that basis, it could be said that, notwithstanding the fact that clause 486.216 of the Regulations appears as a time of application requirement in subdivision 485.21 of the Regulations can be satisfied if an applicant had provide evidence that he had applied for an AFP check before the primary decision is made.
6) As stated in R v Wilson; Ex Parte Kisch (1934) 52 CLR 234 at 244. “The rules of interpretation requires us to take expression in their context, and to construe them with proper regard to the subject matter (which is to bare a good character in this case) with which the instrument deals and the objects it seeks to achieve, so as to arrive at the meaning attached tot them by those who use them”. As per CIC insurance Ltd v Bankstown Football Club Ltd supra at 408 and also Project Blue Sky Inc v Australian Braodcasting Authority (1998) 194 CLR 355 at [69] “…the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means… one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous”. In the present case, the context and purpose of the AFP check is to satisfy the Minster that the applicant passes the character test under public interest criteria 4001, which needs to be satisfied at the time of the decision, as per sub class 485.224(a) of the Regulation. It is argued that notwithstanding the fact that clause 485.216 of the regulation appears as a time of application, required of the regulations can be satisfied if an applicant has provided evidence that he has obtained an AFP check before the decision is made.
7) The reasons which resulted in the applicant’s non-compliance of clause 485.216 of the regulations was beyond his control and applicant complied with the aforesaid clause within reasonable time of obtaining the report.”
On 29 August 2011, the first respondent filed an Amended Response asserting that the Amended Application did not disclose any jurisdictional error in the decision of the Migration review Tribunal dated 25 February 2011. The matter was then set down for hearing on 22 November 2011.
Hearing on 22 November 2011
Ms Ramsay made the following contentions in support of the amended application:
i)That the automated email response acknowledging lodgement of the visa application provided 28 days for an AFP check;
ii)That the on-line submission of documents contemplated that all documents sent with the visa application may not arrive at the same time the visa application is received;
iii)That the automated email was an invitation made pursuant to s.56 of the Act to provide the information referred to in the automated email;
iv)That the visa application is not complete until the expiration of 28 days and documents submitted in that period satisfy the requirements of clause 485.216 because they accompanied the visa application;
v)That the time of application refers to a period rather than to a day.
(i) The automated email response acknowledging lodgement of the visa application provided 28 days for an AFP check
At the heart of Ms Ramsay’s submissions on behalf of the Applicant is a submission that reference to “Form 47P – Overseas penal clearance certificate”, referred to in an automated generated e-mail response acknowledging receipt of the Applicant’s visa application, referred to an application for an AFP check. Relevantly, the e-mail, dated 16 June 2008, is as follows.
“This is a system generated e-mail except where this message has been sent in error, please do not respond to the e-mail address specified above.
Primary applicant: Shabir Inderpal Singh SHABIR INDERPAL SINGH
Date of birth: 19/08/1984
Transaction record number: EGNQRCF381
Trim File reference:
Permission request ID: 0520523110
Lodgement Date: 17 June 2008Dear Mr Shabir Inderpal SINGH
This e-mail confirms receipt on the above date by the Adelaide Skilled Processing Centre (ASPC) of your application for a Skilled – graduate (VC 485) visa.
FURTHER DOCUMENT REQUEST
To assist in the assessment of your application you must provide additional documentation. If you have not already done so, please provide to the ASPC the documents listed below:
Shabir Inderpal Singh SHABIR INDERPAL SINGH
Birth certificate or other evidence of age
Copy of page of passport containing personal details
Evidence of English language ability
Evidence of overseas qualifications
Evidence of recent Australian qualifications
Form 1221 -: Additional personal particulars information
Passport photo
Receipt for medical examination
Form 47P - Overseas penal clearance certificate (emphasis added)PROVIDING DOCUMENTS
To provide additional documents to the ASPC, please attach online via link:
”https:\\ the event of an error with the online link, please e-mail the documents as scanned attachments to
…
Regulation 2.15 of the Migration Regulation 1994 provides a time limit of 28 days after the date of this e-mail for you to submit the documents previously listed (emphasis added). If you do not respond within this timeframe, the ASPC may proceed to decide this application on the basis of the available information.”
Ms Ramsay read the affidavit of the Applicant, affirmed 27 October 2011, which annexed a copy of Form 47P and Form 1101.
Form 47P is an information document which explains how to obtain a Police Certificate. Relevantly, it states that in Australia, inter alia, one must provide a completed Form 1101.
Form 1101 is headed “Police Records Check” under which is immediately written “Consent to obtain personal information”. Form 1101 is clearly an application to the AFP for an AFP check and the first respondent does not suggest otherwise. It is common ground that the completion and lodgement of such a form would be evidence that the Applicant has applied for an AFP check.
Ms Ramsay submitted that because Form 47P relates to an application for an AFP check, then the reference to “Form 47P - Overseas penal clearance certificate” in the post lodgement automated generated e-mail is a reference to an application for an AFP check and that, in accordance with that e-mail, the Applicant has 28 days in which to provide evidence of his application for an AFP check.
The difficulty with that submission is that the e-mail, whilst referring to Form 47P, clearly states that the document which is to be provided within 28 days is an “Overseas penal clearance certificate”. A certificate of clearance is a different document to an application for a certificate of Penal Clearance. Whilst one wonders why the e-mail would refer to Form 47P at all, in my view, a proper reading of the email allows a further 28 days following lodgement of the visa application for an Overseas penal clearance certificate and not merely an application for such a certificate.
It is most unfortunate that the e-mail has any reference to Form 47P as it would appear to be entirely irrelevant to require the Applicant to provide a copy of that form being no more than an information sheet, and being an information sheet that refers to information that was required to be provided at the time the application was made. However, the fact that there is an irrelevant reference to Form 47P in the e-mail cannot by itself establish jurisdictional error on the part of the Tribunal.
(ii) On-line submission of documents
Ms Ramsay made a further submission that the e-mail contemplated that there may be an error with the online link and provided a further e-mail address to which documents could be sent as scanned attachments.
Ms Ramsay submitted that such a statement contemplated that it was possible that documents sent with an online application may not reach their destination at the time they were sent and therefore there was provision to send scanned documents to a different e-mail address.
Ms Ramsay submitted that the statement provided a further opportunity for further documents to be sent and must include any document that was required to accompany the Applicant’s application at the time of lodgement. Ms Ramsay then relied on that submission to contend that the effect of the e-mail was that the Applicant had 28 days in which to provide, relevantly, evidence of his application for an AFP check and that the visa application was not complete until the expiration of that 28 day period.
Certainly the e-mail refers to Regulation 2.15 of the Migration Regulations in providing a time limit of 28 days after the date of the e-mail for submission by the Applicant of the documents listed in the e-mail. However, having determined that the document listed in the e-mail referring to an Overseas penal clearance certificate, refers to a certificate, and not an application for a certificate, such a submission does not assist the Applicant.
Moreover, clause 485.216 clearly states that the application is to be accompanied by evidence that the Applicant has applied for an AFP check “during the 12 months immediately before the day in which the application is made.” Plainly, the application for the AFP check was not made during the 12 months immediately before the day in which the visa application was made. This is so even if one has regard to Ms Ramsay’s submission, which I reject, that the application is not completed until the 28th day after receipt by the Applicant of the e-mail.
(iii) The email was an invitation made pursuant to s.56 of the Act to provide the information referred to in the email
Ms Ramsay further submitted that the e-mail was an invitation by the Minster pursuant to s.56 to provide the information listed. Section 56 is as follows:
“Section 56 - Further information may be sought
(1) In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.
(2) Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.”
Mr Reilly, counsel for the first respondent, conceded that the e-mail may be an invitation under s.56 having regard to the reference to Regulation 2.15 of the Migration Regulations in providing a time limit of 28 days after the e-mail for the Applicant to submit the documents previously listed. However, again, as I have found that the reference in the e-mail to the Overseas penal clearance certificate is not a reference to an application for an AFP check, such a submission does not assist the Applicant.
(iv) The visa application is not complete until the expiration of 28 days and documents submitted in that period satisfy the requirements of clause 485.216 because they accompanied the visa application
Ms Ramsay submitted that the reference in the list in the e-mail to a “Receipt for medical examination” was capable of referring to an application for a medical certificate, whereas clause 485.217 required that the Applicant’s application for a visa be accompanied by evidence that the Applicant has made arrangement to undergo a medical examination for the purposes of the application.
Clause 485.217 was a similar clause considered in Gill’s case and Nayeem’s case. Both of those cases held that “accompanied by evidence” required compliance with the criterion at the time of the lodgement of the application. Judicial comity alone would be sufficient for me to make a similar finding.
However, the requirements of clause 485.216 are clearer than those in clause 485.217. Clause 485.217 does not have the further requirement of clause 485.216 that evidence of an application for an AFP check, made in the 12 months immediately before the day on which the visa application is made, must accompany the visa application.
As stated above, the “application is made” on the day it is lodged. That was 17 June 2008. The Applicant’s application for an AFP check was not made until 9 July 2008. That is clearly not within the 12 months immediately before the day when the application was made.
(v) The time of application refers to a period rather than to a day
Ms Ramsay also submitted that the time of application refers to a period rather than to a day. Ms Ramsay submitted that the period is while the application is being dealt with and at least up until 28 days after the date of the e-mail because the decision maker could not make a decision until the expiration of that time.
However, such a submission cannot be made out having regard to the clear language of clause 485.216. The requirement in clause 485.216 does not require that an application for an AFP check be provided at the time of the completion of the visa application. The clear requirement of the language is that evidence of an application for an AFP check, made during the 12 months immediately before the visa application is made, must accompany the application.
In Patel v Minister for Immigration and Citizenship [2011] FCA 1220 at [9]-[10], Robertson J considered a submission that “the time of application” referred to a period rather than to a day, the period being while the visa application was being dealt with up to the date of decision. Robertson J rejected the submission as having insufficient foundation in the statutory language. Similarly in the case before this Court, clause 485.216 requires that, at the time the visa application is made, evidence of an application for an AFP check made during the 12 months immediately before the day on which the visa application is made must accompany the application. Such language does not provide a sufficient foundation to allow for the construction contended for by counsel for the Applicant. In other words, it is not necessary in those circumstances to consider if the visa application was not completed until a later date.
Accordingly, the submissions that the reference to the 28 day period has the effect of extending “the application” for 28 days do not assist the Applicant in circumstances where the Applicant was required to provide evidence that he had applied for an AFP check “during the 12 months immediately before the day when the application is made(emphasis added).” That is to say, the requirement clearly contemplates that it must be possible to identify the day on which the application is made.
Conclusion
In the circumstances, the Tribunal’s conclusion that the Applicant did not provide any details of an application for an AFP check during the 12 months immediately before the day when the application was made is without error. In such circumstances, the Tribunal was bound to find the Applicant did not satisfy clause 485.216 and correctly affirmed the decision under review.
The Tribunal’s decision is not affected by jurisdictional error.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 14 December 2011
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