Tauqeer v Minister for Home Affairs
[2019] FCCA 1343
•23 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TAUQEER v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1343 |
| Catchwords: MIGRATION – Extension of time in which to seek judicial review of Tribunal decision affirming refusal of Skilled work (class 485) visa – applicant had not provided evidence that he had applied for AFP check during the 12 months before visa application – Tribunal finds applicant did not satisfy requirements of cl 485.213 of the Regulations – Minister consents to extension of time and final hearing – jurisdictional error not established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 474, 476, 477 Migration Regulations 1994 (Cth), cl.485.213 |
| Cases cited: Annam v Minister for Home Affairs [2019] FCA 237 Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Rahim v Minister for Immigration and Border Protection [2018] FCA 1736 |
| Applicant: | ZEESHAN TAUQEER |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 200 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 16 May 2019 |
| Date of Last Submission: | 16 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 23 May 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor Advocate for the Respondents: | Ms Roberts |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The application dated 31 January 2017 be dismissed.
The applicant pay the costs of the first respondent fixed at $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 200 of 2017
| ZEESHAN TAUQEER |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 31 January 2017, the applicant seeks an extension of time within which to apply for judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 23 December 2016 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Skilled (Provisional) (Class VC) visa pursuant to s 65 of the Migration Act 1958 (Act).
A criterion for the grant of the visa was that when the application was made, it was accompanied by evidence that the applicant had applied for an Australian Federal Police (AFP) check in the preceding 12 months: cl 485.213, Migration Regulations 1994 (Cth) (Regulations). On 31 May 2016, the applicant applied for the visa. The applicant obtained a Victoria Police certificate dated 28 August 2014. He also obtained a National Criminal History Check dated 7 March 2016 (NCHC), and later, on 28 October 2016, a statement from the AFP. Each search stated that there were no disclosable court outcomes respecting the applicant.
Those facts notwithstanding, as the application was not accompanied by evidence that the applicant had applied for an AFP check in the 12 months before his application, the Tribunal was obliged to affirm a decision of the Minister’s delegate to refuse the visa application.
Background
On 31 May 2016, the applicant applied for a Temporary Graduate (Post-Study Work) (subclass 485) visa. In response to the question whether he had ‘applied in the last 12 months to the AFP for a check of criminal records?’ the applicant responded ‘No’.
On 20 June 2016, a delegate made a decision to refuse to grant the visa, doing so on the basis that the applicant did not satisfy the requirements of cl 485.213 of the Regulations.
On 7 July 2016, the applicant applied to the Tribunal for a review of the delegate’s decision.
On 15 November 2016, the Tribunal invited the applicant to attend a hearing on 8 December 2016. On 1 December 2016, the applicant’s authorised recipient sent the Tribunal a completed response to the hearing invitation, a copy of pages from the applicant’s passport and an AFP clearance certificate dated 28 October 2016.
The applicant attended the hearing on 8 December 2016, and was given until 16 December 2016 to provide the Tribunal with any further submissions and documents on which he sought to rely.
On 16 December 2016, the applicant’s migration agent provided the Tribunal with further documents comprising: a statement from the applicant dated 15 December 2016; a copy of the Victoria Police clearance dated 28 August 2014, and the NCHC issued on 7 March 2016. By his statement, the applicant explained that he had been under the impression that his Departmental case officer “would request me upon my application lodgement if they believe” that he had the required AFP certificate. The applicant’s statement identified the Victoria Police clearance dated 28 August 2014 and the NCHC issued on 7 March 2016, suggesting that these documents were the foundation for his belief that they would be sufficient to meet the applicable requirements for the grant of the visa. The applicant noted that he had applied for a further AFP clearance on 28 October 2016 (which post-dated his application), was also submitted to the Tribunal.
On 23 December 2016, the Tribunal affirmed the delegate’s decision. It referred to cl 485.213 and identified the issue before it to be whether the application was accompanied by evidence that the applicant had applied for an AFP check during the 12 months immediately before the day the application was made: Reasons, [8].
The Tribunal observed that at the hearing the applicant confirmed he had not applied for an AFP check in the relevant 12 month period, but that he had made application for the certificate subsequently and which he had provided to the Tribunal: Reasons, [11].
The Tribunal also had regard to the NCHC dated 7 March 2016, which the applicant provided after the hearing. The Tribunal noted that, according to the website address on the NCHC, the check had been conducted by a private company. While the Tribunal accepted that the NCHC provided essentially the same information as the AFP check, it found that it was not an AFP check and that the NCHC appeared to have been sought by the applicant’s employer. On this basis, the Tribunal was not satisfied that the NCHC was an ‘AFP check’ that had been applied for by the applicant: Reasons, [12]-[14]. Based upon the findings at [17]-[19], the Tribunal concluded that the applicant did not satisfy the requirements of cl 485.213, because:
a)the applicant made his subclass 485 visa application on 31 May 2016;
b)the applicant’s response in his application was that he had not applied for an AFP check in the previous 12 months;
c)the application was not accompanied by any evidence that the applicant had applied for an AFP check in the relevant period;
d)the applicant had later applied for, and received, an AFP clearance on 28 October 2016; 5 months after his visa application was made.
Procedural history
On 31 January 2017, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which he exhibited a copy of the Reasons, but adduced no further evidence in support of the application for judicial review.
By a Response filed on 7 February 2017, the Minister opposed the application on the stated basis that the court did not have jurisdiction to review the Tribunal’s decision because application for judicial review was filed out of time, contained no proper grounds of review and invited the court to impermissibly review the merits of the Tribunal’s decision.
On 2 August 2017, orders were made, by consent, listing the matter for final hearing. Orders were made affording the applicant opportunities to file any amended application, affidavits and submissions; however, those opportunities were not taken.
On 27 September 2017, the Minister filed submissions which were responsive to the grounds appearing in the application.
By s 477(1), a 35-day time limit is fixed for the making of an application to this court for judicial review of a migration decision. The court may extend the time for filing an application: s 477(2). The power to extend time is expressed as being subject to two conditions: (1) an application has been made in writing for such an extension; (2) the court is satisfied that it is necessary in the administration of justice to do so.[1]
[1]For the avoidance of doubt, the 35 day time limit commences to run from the date of the migration decision, irrespective of the validity of the decision: see s 477(3)-(5).
As the Minister consented to the application for an extension of time, the application proceeded as a final hearing.
Applicable principles
If the Tribunal’s decision was a privative clause decision[2], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[3] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[4] Whether it should do so is a separate issue.
[2] Act, s 474(2).
[3]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[4] Act, s 476(2).
By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[5]
[5]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
As stated above, one criterion for the grant of the visa is that contained in cl 485.213. This regulation required that when the visa application was made, it was accompanied by evidence that the applicant had applied for an AFP check during the 12 months immediately before the day the application was made.
Consideration
As the applicant was self-represented, I have re-examined the materials comprising the court book, the Tribunal’s Reasons and application for review.
The application for review contained one ground of review. The applicant contended that the Tribunal “did a ‘jurisdictional error’ (sic)” by not considering his NCHC, which indicated he had no disclosable court outcomes or criminal record.
The grounds of the application comprise submissions, which detail the applicant’s efforts to obtain various police checks and plead that the applicant’s NCHC obtained in February 2016 essentially served the same purpose as an AFP check. The applicant made the point, with conviction, that the purpose of the regulation was to enable the decision-maker to consider whether an applicant had a criminal record. He pointed to the fact that each of the police checks that had been obtained in the period 2014 – 2016 demonstrated that there were no disclosable outcomes and that he had no criminal convictions at all.
Contrary to the applicant’s submission, the Reasons demonstrate that the Tribunal had express regard to the applicant’s NCHC and that it accepted that that record provided essentially the same information as the AFP check. However, it found correctly that the NCHC was not an AFP check: Reasons, [10]-[14]. This finding was open on the available materials and for the reasons that the Tribunal gave. The Tribunal was entitled to accept or reject or give such weight to the evidence proffered as it considered appropriate in all the circumstances. Taken at their highest, the applicant’s submissions go no further than an invitation for the court to undertake impermissible merits review and cannot succeed.
The applicant was on notice of the determinative issue on the review; namely, whether he met the requirements of cl 485.213. Those requirements were discussed with the applicant at the hearing, and he acknowledged that he had failed to meet them: Reasons, [11].
Neither the Victoria Police certificate dated 28 August 2014 nor the NCHC certificate dated 7 March 2016 answered the essential requirement of the criterion prescribed by cl 485.213. Neither document answered the description of being an AFP check. Neither satisfied the requirement that the visa application was accompanied by evidence that the applicant had applied for a check by the AFP in the period of 12 months prior to the application being made.
The visa application was made on 31 May 2016. The NCHC was not provided to the Tribunal until 16 December 2016: well after the date of visa application and well after the visa had been refused. The applicant failed to demonstrate that his application was “accompanied by evidence” that he had applied for an AFP check.
The conclusions expressed above are confirmed by more recent authority.
In Khan v Minister for Immigration and Border Protection,[6] Tracey J (Charlesworth and Derrington JJ agreeing), held in relation to another regulation[7] which is relevantly similar, as follows:
The clause establishes an objective temporal test. Whether or not there is some flexibility in the test, nothing decided in Annam 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. The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not.
The test is objective. Clause 485.223 is one of a number of “time of application” criteria conditioning the grant of a skills visa. An obvious mischief addressed by the provision is to provide clarity to the visa applicant as to the person’s readiness to apply for the visa and the matters he or she needs to have done before he or she commences the visa application process.
[6] [2018] FCAFC 85, [15]-[16].
[7] Regulations, cl 485.223.
In Rahim v Minister for Immigration and Border Protection,[8] Davies J rejected a submission that appealed to the inequity of the outcome where an applicant had erroneously applied to an organisation or authority other than the AFP for a police check. Her Honour held that as the documents relied upon did not answer the essential requirements of cl 485.213, the Tribunal had no power or discretion which it could exercise so as to accept the results in those documents in lieu of that which was required by the regulation.
[8] [2018] FCA 1736, [4].
In Annam v Minister for Home Affairs,[9] Charlesworth J considered the operation of cl 485.213, being the regulation which applies in this case. Her Honour, applying Khan, rejected a submission that the regulation was not mandatory and further held that hardship was not a mandatory relevant consideration to be taken into account in its application:
The only decision that was open to the Tribunal to make in the circumstances was a decision to refuse to grant the visa. That decision was mandated by s 65 of the Act
[9] [2019] FCA 237, [14]-[17].
The principles established by those authorities are determinative of the present application.
Conclusion
Jurisdictional error has not been established.
The application should be dismissed, with costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 23 May 2019
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