Waheed v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 300
•21 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Waheed v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 300
File number(s): BRG 638 of 2020 Judgment of: JUDGE VASTA Date of judgment: 21 March 2024 Catchwords: MIGRATION – Review of Registrar decision – where review is out of time and no application for extension made – where applicant would not engage with the Court and insisted that the matter be removed directly to the Federal Court – where no arguable case for the relief sought was made out – extension refused – application dismissed Legislation: Migration Act 1958 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 21 March 2024 Date of hearing: 21 March 2024 Place: Brisbane Solicitor for the Applicant: The Applicant appeared on his own behalf Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
BRG 638 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABDULLAH WAHEED
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
21 MARCH 2024
THE COURT ORDERS THAT:
1.The application for extension of time is refused.
2.The application for review filed on 8 March 2024 is otherwise dismissed.
3.The Applicant pay the First Respondent’s cost of and incidental to the application fixed in the sum of $500.
IT IS NOTED THAT:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex tempore)JUDGE VASTA
On 21 February 2024, a Registrar of this Court summarily dismissed an application by the Applicant, Abdullah Waheed, for a judicial review of a decision of the AAT. On 8 March 2024, the Applicant asked this Court, as a judge, to review the decision of the Registrar.
As can be seen from the dates, the application was filed nine days late. This is because, unlike any other application to this Court, an application for review of the decision of a Registrar must be made within seven days of that decision. This means that the application before me today is realistically an application for extension of time.
The Applicant himself has not asked for an extension of time. Technically, the application before me is incompetent and it should simply be dismissed for that reason. However, the Applicant is somewhat belligerent in his thinking that this is a matter that should have gone directly to the Federal Court.
To allow him to do that, I have decided to treat this as if it were an application for extension of time. There are three aspects that a Court considers when looking at whether to grant the applicant the extension of time. The first is what is the excuse for the late filing. Secondly, what prejudice is there to the Minister. Thirdly, is there an arguable case for the relief that has been sought.
I have not focused on the first two aspects because the aspect of the third matter, as to whether there is an arguable case for the relief sought, really overshadows both other aspects. However, I have still taken those other aspects into account.
The background to the matter is that the applicant made an application for the skilled visa, a 485 visa, on 29 June 2019. He made the application at 4:13:52 pm AEST. In the written record of responses on the departmental file, it showed that there was a generated date and time, and it included the following printed aspects. They read as follows:
To be eligible to be granted a subclass 485 visa through the graduate 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.
The next section was headed Australian Federal Police; 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? The answer recorded was “no”.
Notwithstanding that the Applicant had marked the box “no”, or electronically marked the box “no”, the true situation was that at 2.43 pm (that is, an hour and a half before he made his application for the visa), the applicant had made an application for an Australian Federal Police check of criminal records. There is a plethora of evidence to show that this is truly the case.
The Applicant, however, did not provide that information in the departmental application. As a result of this, his visa application was refused very soon afterwards. The Applicant lodged an application with the AAT on 22 July 2019. The Applicant told the Tribunal, and he has repeated the same in his affidavits before this Court, that it was human error, and human error alone, that caused him to tick the box that said “no”. The Applicant, however, gave further evidence to say that, even though he had ticked the box that said “no”, nevertheless, the online application prompted the Applicant to include details of the Australian Federal Police check application or certificate.
The Applicant said that, when he did see this little window pop up, he had the details to hand at the time and he included them in this section on the online form. The Applicant said that what he did to show that what he said was right was to do a dummy run; that is, pretend that he was making an application, taking a screenshot of it, again ticking the box “no”, and then after ticking the box showing that the window still popped up for him to put in details of the application to the Australian Federal Police.
The Applicant said that this was in an email that he wrote following the refusal of the visa application:
Yes, I had applied my AFP check before lodgement of the visa application and I had also put the reference number of the receipt in the application for that. But I accidentally tick no to that question. I misread the statement, but I have receipt which indicates I have applied my AFP check before lodgement of the visa.
The Tribunal pointed out to the Applicant that, for the application to be a proper application and to be accepted for consideration, the application needed to be accompanied by evidence that the Applicant had applied for the AFP check in the 12 months immediately before the date of the visa application.
Notwithstanding that the true situation was that he had made an application some hour and half beforehand, his application was not accompanied by that evidence. The Applicant told the Tribunal that he made the application unassisted. He said that when he made the application there was a section in the online application which asked him to put in the reference number of the Australian Federal Police check application. He said to the Tribunal that he couldn’t remember which number he put in, the receipt number or the other number on the receipt. He said however, he had not been able to find that number that he provided on the written responses record for the application.
The Applicant told the Tribunal that when he lodged the application, he went to the Australian Federal Police check page, and it was asking for the reference number and he put the number - he didn't know whether it was the reference number or the index number or the check receipt number - but the application allowed him to “go next”. The Tribunal ended up adjourning the hearing to ensure that there was nothing in the departmental computers that would show that there had been anything entered into the application other than what the printout showed was entered.
Having conducted those enquiries, the result was that the departmental systems verified that the applicant did not provide any additional documentation at the time of their application to indicate that they had applied for an Australian Federal Police check prior to lodgement of the visa application. Therefore, there was no evidence of any other information being provided other than what the Applicant said that he had done.
Because the system had been checked, the Tribunal accepted that the applicant had not entered anything into the system when he made his application and, therefore, his visa application was not accompanied by evidence of the applicant having applied for an Australian Federal Police check during the 12 months immediately before the day the visa application was made on 29 June 2019.
There were other discussions by the Tribunal as to whether the requirement for that proof was that the application had to be during the 12 months immediately before the date on which the application was made. There was discussion as to whether that meant the application for the AFP check had to have been made, not on 29 June when it was made, but on 28 June so that it was in the 12 months immediately before the date on which the visa application was made. There was no conclusion that I could see that was made, even though it seems that that was an issue that troubled the Tribunal.
But the reason that the Tribunal found that there was no valid application made was simply that the application itself was not accompanied by such evidence that showed that he had made the application for an AFP check.
The Tribunal said that they noted that the requirement at issue was a very technical one and it acknowledged the understandable concerns of the Applicant in this regard. But the Tribunal wrote that they needed to be satisfied that cl 485.213 was met and that it was met in the way set out in its clear wording, regardless of the background circumstances. The Tribunal said:
As discussed with the applicant at the hearing, the Tribunal must follow the law as written and cannot change the law regardless of its acknowledgement of the applicant's position and the technicality of the issue in question.
29. The Tribunal appreciates this is a very technical and seemingly unfair result, particularly given the close timing of the AFP check application and the visa application, and further, the uncertainty about the online application process and the provision of the receipt number. However, there is no discretion that the Tribunal can exercise.
For all of those reasons, the Tribunal affirmed the decision.
The Applicant had two grounds before this Court. Firstly, that the Department of Home Affairs acted unreasonably by allowing the applicant to proceed with an application despite the applicant answering no to mandatory time of application criteria. Secondly, the Department of Home Affairs online application systems entrap applicants into erroneous applications by failing to flag instances where time of application criteria are mandatory components of the application process.
None of those grounds disclose any jurisdictional error by the Tribunal. And those grounds are inevitably bound to fail.
The real problem for the Applicant is that the Tribunal did not accept that he had made his application and accompanied the application with evidence that he had made the AFP check. That finding of fact was well and truly open on the evidence before the Tribunal. As has been made abundantly clear to the Applicant, that finding of fact meant that his application could not succeed.
Today the Applicant appeared before me saying that he did not really wish this review to occur, because he wanted to go straight to the Federal Court. He did not want to advance any argument before me but simply wanted me to send this matter to the Federal Court because he wanted to put his arguments before the Federal Court having, it would seem, no confidence in this Court, given what the Registrar had already done. But his pathway to take the matter further after the Registrar simply was mandated that the matter come before me.
As I have said, I cannot see that the Applicant has an arguable case for the relief sought. The result may be a decision which is unfair. The result may be a result that would not be the result, if it were that there was any discretion allowed by either the Registrar or the AAT.
But those matters cannot overrule what the legislation has dictated. It is an unfortunate result, but it is the only one that the legislation has allowed in these circumstances where it is that an application was made without accompanying evidence of an application for an AFP check. Because of those matters, I am of the view that the Court should not grant an extension of time.
I therefore refuse the application for extension of time with costs fixed in the sum of $500.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Vasta. Associate:
Dated: 21 March 2024
0
0
1