Suraj v Minister for Home Affairs
[2019] FCCA 2360
•23 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SURAJ v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2360 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a skilled work visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Anguralia v Minister for Immigration & Anor [2014] FCCA 2027 |
| Applicant: | SAPKOTA SURAJ |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3398 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr J Thompson of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3398 of 2018
| SAPKOTA SURAJ |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant, Mr Suraj, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 November 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Suraj a provisional skilled visa.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 16 August 2019.
Mr Suraj is a citizen of Nepal. On 6 March 2018 he applied for a skilled visa.[1] The visa application was accompanied with various supporting documents and evidence, and recorded a negative response to the question “Have you and all persons included in this application who are 16 years of age or over, applied in the last 12 months to the Australian Federal Police for a check of criminal records?”.[2] Further, at the top of the visa application, Mr Suraj was informed that “to be eligible to be granted a subclass 485 visa through the Post-study work stream, you must have already taken steps to meet certain requirements and obtain documentation before you lodge your application. If you do not meet the requirements below, you may not be able to lodge or to be granted a visa”.[3]
[1] Court Book (CB) 2
[2] CB 1
[3] CB 1
On 8 March 2018 Mr Suraj provided the Minister’s Department with evidence which indicated that he had applied for an Australian Federal Police Check (AFP check) on 7 March 2018.[4]
[4] CB 52
At some time after this, Mr Suraj provided the Minister’s Department with a copy of an AFP check dated 9 March 2018 which outlined that there were “no disclosable court outcomes” as at “09 March 2018”.[5]
[5] CB 53
On 31 May 2018 the delegate refused to grant the visa[6] because Mr Suraj did not satisfy clause 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) which relevantly required:
[6] CB 55
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.
(Minister’s emphasis retained)
On 13 June 2018 Mr Suraj sought review of the delegate’s decision before the Tribunal.[7]
[7] CB 62
On 10 October 2018 the Tribunal invited Mr Suraj to appear before it to give evidence and present arguments relating to the issues in his case.[8] That invitation informed Mr Suraj that his application for the visa was refused “because it was not accompanied by evidence that he had applied for an Australian Federal Police (AFP) check during the 12 months immediately before the day the visa application was made” and invited Mr Suraj to give information.
[8] CB 119
On 1 November 2018 Mr Suraj attended a hearing before the Tribunal.[9]
[9] CB 130–131
On 5 November 2018 the Tribunal notified Mr Suraj of its decision to affirm the decision under review.[10]
[10] CB 133–140
Tribunal decision
The Tribunal identified that the issue before it was whether Mr Suraj met the requirements of clause 485.213 of the Regulations.[11]
[11] CB 139 at [7]
The Tribunal observed that Mr Suraj indicated in his application for the visa that he had not applied for an AFP check in the relevant period.[12]
[12] CB 139 at [9]
The Tribunal recorded that Mr Suraj gave evidence at the hearing.[13] Relevantly, Mr Suraj stated:
a)he had lodged the application without any assistance from a migration agent;
b)he had ticked “no” on the application form because he was careful not to provide any false or misleading information;
c)after searching online, he realised that he needed to have an AFP check so he promptly applied for the police check on 8 March 2018; and
d)he did not realise that the AFP check was required before the application.
[13] CB 139 at [11]
The Tribunal found that Mr Suraj’s evidence indicated that the AFP check was applied for after the application for the visa was made and not in the 12 months immediately before the application for the visa was made.[14]
[14] CB 140 at [12]
For this reason, the Tribunal found that Mr Suraj did not satisfy clause 485.213 of the Regulations and affirmed the decision under review.[15]
[15] CB 140 at [16]
The present proceedings
These proceedings began with a show cause application filed on 5 December 2018. Mr Suraj continues to rely upon that application. It is supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book filed on 21 February 2019.
Only the Minister filed written submissions in advance of today’s hearing. I invited oral submissions from Mr Suraj this afternoon. He noted that he had applied for the visa in person and drew my attention to page 1 of the court book, which identifies the relevant part of the online visa application form. Mr Suraj answered “no” to the question:
Have you and all persons included in this application who are 16 years or over, applied in the last 12 months to the Australian Federal Police for a check of criminal records?
Mr Suraj did not know that this was a visa criterion that was required to be met prior to the lodgement of the visa application. At the top of the page, the form warns applicants that to be eligible to be granted a subclass 485 visa through the Post-study work stream, the applicant must already have taken steps to meet certain requirements and obtain documentation before they lodge their application. The warning continues that if the applicant does not meet the requirements below, they may not be able to lodge or be granted the visa.
The second statement is clearly right. Mr Suraj could not be granted the class of visa he sought because he had not obtained an AFP police check prior to lodging his visa application. The second warning was, unfortunately, not correct. Mr Suraj was able to lodge his visa application. As I pointed out to the parties, it would have been better if he was not able to do so. I see no point in allowing a visa application to be made in circumstances where a critical procedural step required to be completed before lodgement has not been completed. As I have indicated previously in relation to this class of visa, this is something that could be corrected by a smart application form which permitted visa applicants to pause and save their application while they attended to essential prerequisites which had not been completed.
Be that as it may, there is no substance to the grounds in the application. Those grounds are:
1.The Second Respondent made jurisdictional error by failing to take into account the evidence available at the time of the decision.
2.The Second Respondent made jurisdictional error by failing to consider relevant information and High Court decision.
I agree with the Minister’s submissions concerning the grounds.
Ground 1
The particulars to this ground assert that Mr Suraj lodged all necessary documents prior to hearing, including the receipt for an AFP check provided to the Minister’s Department on 8 March 2018 and that this evidence showed that Mr Suraj applied for an AFP check. What this ground essentially contends is that the Tribunal should have accepted Mr Suraj’s AFP check dated 9 March 2018 as evidence that Mr Suraj met the requirements for a 485 visa.
This ground cannot succeed. There are two temporal limbs in clause 485.213 of the Regulations, both of which must be satisfied in order to meet its conjunctive requirements. The first requires that when the visa application is made, it is to be accompanied with evidence that an application has been made for an AFP check. Secondly, that application for an AFP check must have been made during the 12 months immediately before the day the application is made.
In the present case, the visa application was made on 6 March 2018 and, in Mr Suraj’s own evidence, the earliest evidence of an AFP check being applied for was on 7 March 2018. This did not assist Mr Suraj as he was required to have applied for the AFP check before he lodged his application for the visa, and the Tribunal was bound to find that he did not satisfy clause 485.213 of the Regulations. It follows that this ground does not disclose an arguable case of jurisdictional error.[16]
[16] Mir v Minister for Immigration [2018] FCA 697 at [47] per Wigney J; Anguralia v Minister for Immigration & Anor [2014] FCCA 2027 at [32] per Judge Lloyd-Jones
Ground 2
The particulars to this ground reiterate Mr Suraj’s evidence that he was not aware of the fact that he needed an AFP check and asserts that he relied on Berenguel v Minister for Immigration[17] when he lodged his application, operating under the belief that evidence could be provided later if required.
[17] [2010] HCA 8; (2010) 264 ALR 417
This ground also cannot succeed. The criterion under consideration in Berenguel was materially different and distinguishable from clause 485.213 of the Regulations.
What was required from the terms of clause 485.213 was, first, that the application for the visa to be accompanied with evidence that an application for an AFP check had been made. Secondly, that application for an AFP check had to have been made during the 12 months immediately before the day the application for the visa was made. Here, on Mr Suraj’s own evidence, neither of those temporal requirements were satisfied.
Conclusion
I conclude that Mr Suraj is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.
The Minister also seeks an order for costs in accordance with the Court scale. Mr Suraj did not wish to be heard on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 3 September 2019
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