Yaqoob v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 536
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yaqoob v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 536
File number(s): MLG 1472 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 6 July 2022 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – citizen of Pakistan – Temporary Graduate (class VC) Temporary Graduate (Graduate Work) (subclass 485) visa – evidence of overseas student health cover – whether application accompanied by evidence of adequate health arrangements in Australia for health insurance – whether jurisdictional error
WORDS AND PHRASES – “accompanied by”
Legislation: Migration Act1958 (Cth) ss 359A, 474, 476
Migration Regulations 1994 (Cth) Sch 2, cll 485.215, 485.223, 572.225
Cases cited: 1512303 [2016] AATA 3492
Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 622
Anand v Minister for Immigration and Citizenship [2013] FCA 1050; (2013) 215 FCR 562; (2013) 136 ALD 633
Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2021] FCCA 2020; (2021) 361 FLR 340
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
Nguyen v Minister for Immigration and Border Protection [2016] FCCA 1523; (2016) 310 FLR 339
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
“VAS” v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of hearing: 17 November 2021 Place: Perth Applicant: In person via CISCO Webex with the assistance of an Urdu interpreter Counsel for the First Respondent: Ms E Elliott via CISCO Webex Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1472 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: REHAN YAQOOB
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
6 JULY 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed 10 July 2017 be dismissed.
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
JUDGE LUCEV
Before the Court is an application for judicial review (“Judicial Review Application”) filed by the applicant, Mr Rehan Yaqoob (“Mr Yaqoob”) in the Melbourne Registry of the then Federal Circuit Court of Australia on 10 July 2017 under s 476 of the Migration Act1958 (Cth) (“Migration Act”) to review a decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively) of 13 June 2017 to affirm a decision of the delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, then the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”) to refuse to grant Mr Yaqoob a Temporary Graduate (class VC) Temporary Graduate (Graduate Work) (subclass 485) visa (“Graduate Visa”) on 24 August 2016.
The Court Book (“CB”) is in evidence as Exhibit 1.
BACKGROUND
The background to the Judicial Review Application is as follows:
(a)Mr Yaqoob is a citizen of Pakistan: CB 18, who applied for the Graduate Visa on 10 July 2016: CB 1-30;
(b)in applying for the Graduate Visa, Mr Yaqoob marked “Yes” to the question “Do you and all applicants included in this application hold health insurance?”: CB 1;
(c)on 14 July 2016 the Department of Immigration and Border Protection (now the Department of Home Affairs) (“Department”) wrote to Mr Yaqoob requesting more information (“Information Request”) on:
(i)character requirements (including police checks);
(ii)personal particulars for character assessment;
(iii)evidence that the study to be undertaken is closely related to the nominated occupation;
(iv)evidence of study;
(v)completion letter for Australian qualifications;
(vi)health insurance;
(vii)immigration health examinations; and
(viii)polio vaccination certificate: CB 31-40;
(d)regarding health insurance, the Information Request stated as follows at CB 35-36:
Provide evidence that you have held adequate health insurance arrangements from the time of lodgement of your application for a Temporary Graduate (subclass 485) visa, and that these arrangements are still in place.
Your Overseas Student Health Cover (OHSC) will no longer be valid if your application for a Temporary Graduate (subclass 485) visa is approved. Therefore you are now required to provide evidence that you have adequate health insurance arrangements other than OHSC.
More information on health insurance is available on our website at 14 July 2016 Mr Yaqoob emailed the Department asking for clarification on what it meant by the Information Request that his study was closely related to his nominated occupation: CB 42;
(f)on 18 July 2016 the Department responded to Mr Yaqoob and requested outstanding documents, including evidence of health insurance: CB 41-43;
(g)on 7 August 2016 Mr Yaqoob uploaded to his Department IMMI account (“IMMI account”) some documents, but these uploaded documents did not include any evidence of health insurance: CB 62-67;
(h)on 24 August 2016 the Delegate’s Decision was to refuse the Graduate Visa: CB 68-73; and
(i)on 24 August 2016 Mr Yaqoob applied to the Tribunal for review of the Delegate’s Decision: CB 74-75 (“Tribunal Review Application”).
THE TRIBUNAL REVIEW APPLICATION
In the Tribunal Review Application Mr Yaqoob provided a statement in which he claimed that:
(a)he had maintained health insurance over the required periods, that his former student health cover was due to expire on 15 July 2016, and that from 16 July 2016 he enrolled in new health insurance;
(b)he had uploaded evidence of his health insurance to his IMMI account on 7 August 2016; and
(c)he was “sure” he had uploaded the required evidence of health insurance and that there “could have been a technical issue in the [D]epartment’s online system”: CB 76.
Mr Yaqoob also submitted documents that confirmed he had health insurance commencing on 16 July 2016: CB 77-81.
On 28 March 2017 the Tribunal invited Mr Yaqoob to give evidence at a hearing on 19 April 2017 (“Tribunal Hearing”): CB 86-88.
On 31 March 2017 Mr Yaqoob responded to the Tribunal Hearing invitation and provided a further written submission and evidence that he had student health insurance cover with Medibank Australia that expired on 15 July 2016: CB 89-95.
On 19 April 2017 Mr Yaqoob appeared at the Tribunal Hearing to give evidence and make submissions: CB 97-99.
On 27 April 2017 the Tribunal sent Mr Yaqoob a letter for the purposes of s 359A of the Migration Act (“359A Letter”) containing the Department’s response to the Tribunal’s request that the Department check its records regarding Mr Yaqoob’s claims that he had provided the required evidence of his health insurance to Mr Yaqoob. The 359A Letter included a printout of the Department’s records. The Tribunal invited Mr Yaqoob’s comment on its 359A Letter: CB 100-103.
Following the Tribunal Hearing the Tribunal gave Mr Yaqoob until 18 May 2017 to provide further evidence from a friend who Mr Yaqoob had said had seen Mr Yaqoob uploading his health insurance to his IMMI account.
On 4 May 2017 Mr Yaqoob responded to the 359A Letter (“359A Response”): CB 104-109 submitting that:
(a)a system error may have affected the upload of his health insurance information;
(b)he had no record of the uploaded documents because the Department did not send confirmation of uploaded documents;
(c)he had no reason not to include the documents; and
(d)there was a statutory declaration from a friend whom Mr Yaqoob claimed had seen him upload the document: CB 107-108.
TRIBUNAL DECISION
In the Tribunal Decision the Tribunal:
(e)considered the claims, evidence and issues before it including that:
(i)the issue in the case was whether Mr Yaqoob met cl 485.215 of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) which provides as follows:
(1)When the application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.
(2)The applicant has had adequate arrangements in Australia for health insurance since the time the application was made.
(ii)the Graduate Visa application indicated that Mr Yaqoob responded “yes” to the question “Do you and all applicants included in this application hold health insurance?”;
(iii)the Delegate’s Decision, a copy of which was provided with the Tribunal Review Application, recorded that:
(A)correspondence was sent to Mr Yaqoob on 14 July 2016 requesting that he provide evidence that, among other things, he held adequate health insurance from the time the Graduate Visa application was lodged and that the arrangements were still in place;
(B)Mr Yaqoob responded on 14 July 2016 with a query but did not provide the documents;
(C)the Department again emailed Mr Yaqoob on 18 July 2016 requesting, again among other things, evidence of his health insurance;
(D)the Delegate’s Decision records that this was not provided; and
(E)consequently, the Delegate was not satisfied that Mr Yaqoob met cl.485.215(2) of Sch 2 to the Migration Regulations and the Graduate Visa application was refused;
(iv)prior to the Tribunal Hearing, Mr Yaqoob provided a statement to the Tribunal in which he claimed that:
(A)he had maintained health insurance coverage over the required periods;
(B)he had provided evidence of this to the Department; and
(C)he had provided a copy of his health insurance coverage up until the expiry of his student visa on 15 July 2016, and then, from a different insurer, from 16 July 2016;
(f)noted that:
(i)Mr Yaqoob maintained that he had sent the relevant documents to the Department on 7 August 2016;
(ii)evidence of this did not appear on the Departmental file before it;
(iii)Mr Yaqoob claimed that he had uploaded the documents in the presence of his friend;
(iv)the Tribunal had allowed him some further time to provide evidence from his friend;
(v)the Tribunal also undertook to contact the Department seeking it confirm its records in this regard; and
(vi)the Tribunal said that if the Tribunal received an adverse response from the Department it would advise Mr Yaqoob and give him a further opportunity to respond;
(g)considered the Departmental policy in this regard which states that (emphasis in Tribunal Decision):
10 Adequate arrangements for health insurance
10.1 Overview
To satisfy 485.215, at the time the application was made it needs to have been accompanied by evidence that the applicant:
•had adequate arrangements in Australia for health insurance and
•has had adequate arrangements in Australia for health insurance since the time the application was made. That is, to cover the period between when the application was made and when the decision maker is assessing the application (known as the time of decision).
(h)acknowledged that while the Tribunal is not bound by policy, it considers the policy is consistent with the relevant legislative provisions and, in the circumstances of the Tribunal Review Application, saw no reason to depart from it;
(i)following the Tribunal Hearing, contacted the Department, seeking that it check its records regarding Mr Yaqoob’s claims that he had provided the required evidence of his health insurance, and the Department responded, advising that:
(i)“I can verify that I have checked the Linked documents (see image below) and opened each linked document to confirm OVHC was not attached to the bottom of another document. I have also checked the electronic trim file with no results.”; and
(ii)the Outlook webmail was checked and the Department confirmed that no email had been received with the requested information;
(j)then wrote to Mr Yaqoob under s 359A of the Migration Act advising him no health insurance information had been uploaded with the Graduate Visa application, the relevance of that omission, and the potential consequences of the Tribunal’s reliance on that omission, and gave Mr Yaqoob an opportunity to respond in writing, and that within the time required, Mr Yaqoob responded by:
(i)acknowledging the uploading and transfer of data between systems;
(ii)saying he had no record because a confirmation email or notification was not sent by the Department;
(iii)claiming to specifically recall that he uploaded the health insurance information; and
(iv)provided a statutory declaration (“Statutory Declaration”) from his friend, Mr Waleed Ahmed Khan (“Mr Khan”) in which Mr Khan:
(A)declared that he was sitting beside Mr Yaqoob when he uploaded documents for his Graduate Visa on the immigration portal and he guided him through the process;
(B)stated he is “very confident that Mr. Rehan uploaded his proof for health insurance”;
(C)claimed that they had a list of the documents that needed to be uploaded and they checked each document on that list;
(D)further stated that he is an accountant and has an eye for detail and claims that there is a possibility of a “technical glitch on the immigration portal”; and
(E)commended Mr Yaqoob as someone who is a good person and trustworthy and “has undergone the proper channel to reach where he is now”;
(k)noted that Mr Yaqoob intended to rely on another decision of the Tribunal, 1512303 [2016] AATA 3492 (“1512303”), in which an applicant was found to satisfy cl 572.225 of Sch 2 to the Migration Regulations on the basis of later provided evidence of health insurance and noted that though it had considered that case, it was inapposite to Mr Yaqoob’s circumstances because:
(i)the relevant legislative provision under consideration in 1512303, cl 572.225 of Sch 2 to the Migration Regulations, required an applicant to give evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay, whereas cl 485.215 of Sch 2 to the Migration Regulations, which applied to Mr Yaqoob’s Graduate Visa application required that when the Graduate Visa application was made it was accompanied by evidence that:
(A)an applicant (here Mr Yaqoob) had adequate arrangements in Australia for health insurance; and secondly;
(B)that the applicant has had adequate arrangements in Australia for health insurance since the time the application was made;
(ii)that while the Tribunal was satisfied that Mr Yaqoob had had adequate arrangements in Australia for his health insurance since the time the application was made, the issue before the Tribunal was whether Mr Yaqoob’s Graduate Visa application was accompanied by the relevant evidence; and
(iii)Mr Yaqoob was required to satisfy both limbs of cl.485.215 of Sch 2 to the Migration Regulations and that these were not alternatives;
(l)considered the cases of Anand v Minister for Immigration and Citizenship [2013] FCA 1050; (2013) 215 FCR 562; (2013) 136 ALD 633 (“Anand”) and Nguyen v Minister for Immigration and Border Protection [2016] FCCA 1523; (2016) 310 FLR 339 (“Nguyen”) in relation to the meaning of “accompanied by” observing that:
(i)in Anand the Federal Court held at [28] per Katzman J that:
It seems to me that the intention of the regulations is to ensure that the application is not processed unless it meets certain criteria. That is why the relevant evidence is to accompany the application. Consistent with that purpose the evidence should be submitted with or at the same time as the application. Certainly that appears to be the object of the provision. Yet, it is not necessarily inconsistent with that purpose that the evidence is submitted after the visa application is lodged, although how long after is another question.
…
I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged. Still, there must be some temporal connection with the application. Evidence supplied around the time of the application may be sufficient. I doubt, for example, if the accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application. It might even extend beyond that.
Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within the week and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged and two days after the decision was made. Language cannot be stretched so far that it snaps (cf. Wielgus v Removal Review Authority [1993] 1 NZLR 73 at 79).
and
(ii)at CB 117 at [19] in Nguyen the Court at [35] per Judge Burchardt in relation to whether the answers on a visa application form constituted “evidence” noted:
It should be noted that neither the Applicant nor the First Respondent has suggested that the answers the Applicant herself provided at CB1 and CB9 constitute evidence in the relevant sense. It seems to be accepted that these are to be taken to be merely assertions by the Applicant rather than supporting evidence.
(m)having considered Mr Yaqoob’s response of “Yes” to the question on the Graduate Visa application regarding his health insurance, was not satisfied that this assertion could be regarded as constituting “evidence” accompanying the Graduate Visa application and that it did not therefore satisfy the requirements of cl 485.215(1) of Sch 2 to the Migration Regulations, on the basis that although Mr Yaqoob had later provided such evidence to the Tribunal, on the basis of the above authorities, it did not consider that this could be appropriately regarded as having relevantly “accompanied” the Graduate Visa application (the Court notes the typographical error in this sentence reads as “it does consider that this can be appropriately regarded” and the Court understands the Tribunal to mean the opposite);
(n)carefully considered the evidence and submissions and Statutory Declaration provided by Mr Yaqoob, noting that:
(i)in the Statutory Declaration Mr Khan did not specify or estimate the date on which he assisted the applicant to upload the documents;
(ii)he maintained that there was a checklist of documents to attach to the application and all of them were ticked;
(iii)on that basis he asserted that he was confident that the health insurance documents were uploaded but that this claim was not supported by the other available evidence;
(iv)on the contrary, as demonstrated by the computer printout provided by the Department (and sent to Mr Yaqoob with the 359A Letter) there were several documents that did not accompany the Graduate Visa application and which were later provided, however, these did not include evidence of Mr Yaqoob’s health insurance;
(v)the Department had undertaken further checks and had confirmed that there was no record of its receipt of the evidence of Mr Yaqoob’s health insurance; and
(vi)
the Tribunal accepted the reliability of the Department’s records in this regard and, given the objectivity of this evidence and the Department’s confirmation of it, the Tribunal attached more weight to it than to the recollections of
Mr Yaqoob and Mr Khan as to what accompanied his Graduate Visa application either on 10 July 2016 or at a later date;
(o)found, on the basis of the information before it, that:
(i)Mr Yaqoob lodged his Graduate Visa application on 10 July 2016;
(ii)in his Graduate Visa application Mr Yaqoob stated that he had health insurance;
(iii)the Graduate Visa application form stated “You must attach evidence of adequate health insurance after the lodgement of this application on the “Attach documents to a lodged application” page”. Mr Yaqoob did not attach evidence of his health insurance when he lodged the Graduate Visa application form nor did he supply it to the Department at any later date;
(iv)Mr Yaqoob had provided the Tribunal with evidence that he had adequate arrangements in Australia for health insurance and has done so since the time the Graduate Visa application was made;
(v)the central issue before the Tribunal is whether the Graduate Visa application was accompanied by evidence that Mr Yaqoob had adequate health insurance. According to the Delegate’s Decision record and confirmed by Mr Yaqoob at the Tribunal Hearing, the Graduate Visa application was lodged on 10 July 2016 and, while the Tribunal had been provided with evidence of adequate health insurance, on the basis of the authorities and the objective reliable evidence otherwise, it was not satisfied that evidence of adequate health insurance “accompanied” the Graduate Visa application; and
(p)expressed considerable sympathy for Mr Yaqoob’s circumstances and accepted as genuine his belief that he did lodge the required documents, but it followed that while it was satisfied that he met cl 485.215(2) of Sch 2 to the Migration Regulations, it was not satisfied that he met cl 485.215(1) of Sch 2 to the Migration Regulations,
and affirmed the Delegate’s Decision: CB 117 at [26]-[28].
JUDICIAL REVIEW APPLICATION
Mr Yaqoob’s grounds
The Judicial Review Application contained the following two grounds (reproduced unaltered):
1.The decision made by delegate of the Minister for Immigration and Border Protection (further referred to as DIBP) was based on cl.485.215(2) of Migration act and Migration regulations 1994, that is, "The applicant has had adequate arrangements in Australia for health insurance since the time the application was made". Based on the reason that an evidence of health insurance document was not received by DIBP, it was assumed that I had no adequate arrangements for health insurance at all. Since I had the said arrangements, I had reason to challenge the delegate's decision at Administrative Appeals Tribunal. I succeeded to prove that I meet the cl.485.215(2) at AAT, that I had the adequate health cover arrangements in Australia since the time the application was made. I understand that cl.485.215(1) is a limb of cl.485.215(2) and both are to be met to satisfy cl.485.215. As mentioned in decision made by member of AAT, it was concluded that I did not satisfy cl.485.215(1) instead of cl.485.215(2) which was raised by DIBP at the first place.
It is to be noted that again it was merely based on an assumption, that is, DIBP not receiving my health cover evidence automatically implied that I never sent it. For example, a recipient having not received a specific thing neither automatically implies nor proves that it was never sent at all, unless otherwise proved by some other means. On top of that, neither DIBP nor AAT believed that it was either intended or needed by me to hold back the evidence of health cover documents. A reference to a recent case, referred to by AAT (Nguyen v Minister for Immigration & Anor [2016] FCCA 1523(Nguyen 's case)), it was conceded that the applicant provided false information and the required documents were not submitted within 28 days timeframe. Here, the intention of the delay in submission is very clear, that is, the applicant had no adequate arrangements of required skill assessment document. However, neither I provided any false information nor submitted with any delay.
The evidence sent by DIBP was a screen shot of their Outlook webmail window, show documents sent by me but not the health cover evidence. On the other hand, I had a witness a friend of mine, Mr Waleed A Khan, who was present there while I uploaded the documents including health cover evidence on August 7, 2016. On the request of AAT Mr Waleed provided a statutory declaration confirming my claim. It is mentioned by member of AAT that there was no specification or estimation of time in the statutory declaration by Mr Waleed A. Khan. While the statutory declaration reads, “I was sitting besides Mr. Rehan Yaqoob while he was uploading documents on the immigration portal for his Temporary Residence (Visa 485)”. The documents were only uploaded at one instance after the lodgement of initial application, hence, it is clear from Mr Waleed’s statement that he was referring to the exact time when the documents were being uploaded including the health cover evidence. Moreover, DIBP issues no receipts to the applicants of uploaded or received documents unlike the procedure followed by AAT and many other organizations. Therefore, leaving an applicant no way to confirm that whether a document has been received at the other end or not.
It is also to be noted that the possibility of a systematic error, which I mentioned in my written statement to AAT, was completely ignored by the honourable member of Tribunal while deciding about my case. Data loss and packet loss are very common terms in the world of digital communication and are not very unlikely to happen.
I would also like to mention that some of the dates mentioned in the decision record by AAT are not correct. Details are as follows:
1. Page 2, paragraph 8 (14 July 2017).
2. Page 3, paragraph 9 (15 July 2017).
3. Page 3, paragraph 9 (16 July 2017).
I request the honourable Justice to quash the ruling made by delegate of the Minister for Immigration and Border protection and Administrative Appeals Tribunal on the bases of above mentioned grounds. I have a firm belief that justice will be served.
The second “ground” is not a ground at all, but a request for relief, and does not require further consideration by the Court.
Mr Yaqoob’s submissions
Mr Yaqoob did not file written submissions in support of the Judicial Review Application.
In his oral submissions, Mr Yaqoob submitted that:
(a)he had submitted his application and that his friend, Mr Khan, was with him when he did so and they uploaded all the documents;
(b)he did not receive an acknowledgment letter from the Department so that he would have known what documents the Department had received;
(c)his friend, Mr Khan, was with him when he uploaded the documents and that Mr Yaqoob had provided his the Statutory Declaration on this point;
(d)he was not without health cover for a single day, he had completed his study and had completed everything on his end, and that he did everything according to the Department website; and
(e)if there were hidden policies, he did not know about them but that he did everything officially according to the Department website and that he made his submissions relying on that.
Minister’s submissions
The Minister submitted that:
(a)the grounds of the Judicial Review Application are in the form of submissions relating to Mr Yaqoob’s complaint that he uploaded the relevant health insurance records;
(b)Mr Yaqoob alleges that the Tribunal assumed that because the Department did not receive evidence of Mr Yaqoob’s health insurance that he did not send such evidence, but he maintains that he sent the relevant health insurance documents with the Judicial Review Application;
(c)the grounds of the Judicial Review Application overlap with the submissions made by Mr Yaqoob to the Tribunal: see CB 76, 89-90 and 104-106;
(d)Mr Yaqoob’s arguments are misconceived. It was not relevant whether Mr Yaqoob attempted to provide evidence of health insurance with his application for the Graduate Visa. In this regard, the Tribunal obtained and put to him evidence that the Department did not receive evidence of health insurance with the Graduate Visa application: CB 101-103;
(e)further, nowhere in his submissions to the Tribunal nor in the grounds of Judicial Review Application does Mr Yaqoob explain why he did not provide evidence of health insurance when the Department asked him for such evidence on two separate occasions: CB 31 and 41;
(f)the Tribunal correctly identified that the relevant issue before it was whether Mr Yaqoob satisfied cl 485.215 of Sch 2 to the Migration Regulations, that is whether there was evidence that the health insurance evidence “accompanied” the Graduate Visa application. The Tribunal had regard to the meaning of the phrase “accompanied by” as discussed in Anand and Nguyen where it was held that material supplied after a visa application was lodged could still fall within the phrase “accompanied by”, however, that a temporal connection was required: CB 115-116 at [18]–[19];
(g)in Nguyen the relevant evidence was sent to the Department 29 days after the relevant visa application was lodged, but before any decision was made by a delegate, and the Court did not find error in the Tribunal’s finding that a 29-day delay in provision of the material to the department did not meet the temporal requirements of the phrase “accompanied by” in cl 485.223 of Schedule 2 to the Migration Regulations: Nguyen at [17], [40] and [42]-[43] per Judge Burchardt. This Court has previously held that the reasoning in Nguyen is “sound” in a matter concerning the Tribunal’s interpretation of the temporal connection provided for under cl 485.215 of Sch 2 to the Migration Regulations: Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 622 at [30] per Judge Humphreys;
(h)Mr Yaqoob provided the Tribunal, at the time of his Tribunal Review Application on 24 August 2016, with evidence that he had health insurance from 16 July 2016. This was after the Delegate’s Decision (cf Nguyen), not at the time the Department specifically requested the information, and seven weeks after Mr Yaqoob had made the Graduate Visa application on 10 July 2016;
(i)the Tribunal properly construed cl 485.215 of Sch 2 to the Migration Regulations, and that the phrase “accompanied by” does not extend to circumstances where the relevant documents are not actually received by the Department, despite purported attempts to provide them. The plain meaning of the phrase required that Mr Yaqoob’s health insurance documents be received by the Department with the Graduate Visa application, whether at the time of the Graduate Visa application or within a period of relative temporal connection with that application. Contrary to Mr Yaqoob’s grounds of review, an attempt to send documents does not evince a link to the Graduate Visa application sufficient to satisfy the test; and
(j)contrary to Mr Yaqoob’s argument the Tribunal did not ignore the possibility of system error (as an explanation for the evidence of health insurance not being received by the Department at the time of the Graduate Visa application). The Tribunal considered Mr Yaqoob’s submissions to the Tribunal referring to this possibility at CB 114-115 at [16] and 116 at [22]. The Tribunal preferred the evidence from the Department that the material was not received: CB 116 at 22. There is no jurisdictional error in the Tribunal Decision in this regard. A decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [131] per Crennan and Bell JJ.
CONSIDERATION
Requirement for jurisdictional error
For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Ground 1
The determinative issue in these proceedings is whether the criteria in cl 485.215 of Sch 2 to the Migration Regulations [set out at [12(a)(i)] above] was met by Mr Yaqoob.
Whether or not cl 485.215 of Sch 2 to the Migration Regulations was met, in as much as when Mr Yaqoob’s Graduate Visa application was made it was “accompanied by evidence” of “adequate arrangements in Australia for health insurance” is a question of fact for determination by the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 and 282-283 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The factual issue is to be determined however having regard to the meaning of “accompanied by” in cl 485.215 of Sch 2 to the Migration Regulations. This issue was recently considered by the Court as presently constituted in Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2021] FCCA 2020; (2021) 361 FLR 340 (“Eugene Cho”). In Eugene Cho the Court, having referred to Anand, went on to observe at [40]-[46] per Judge Lucev as follows:
40In Khan [v Minister for Immigration and Border Protection [2018] FCAFC 85] at [15]-[17] it was further observed by Tracey J (with whom Charlesworth J at [28] and Derrington J at [33] agreed) that:
15The clause establishes an objective temporal test. Whether or not there is some flexibility in the test, nothing decided in Anand 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.
16The 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.
17The provision aims to ensure that a person who applies for a visa has applied for his or her skill assessment and is therefore ready and willing to undergo the assessment at the earliest opportunity. If the provision was not enacted in that form, a visa applicant might use the visa application process, including processes associated with merits review by the Tribunal, to expand the time in which he or she acquires the skills necessary to fulfil the substantive visa criterion. In that way, the Regulations facilitate efficient decision-making and guard against delay by visa applicants who are not ready at the time of the visa application to undergo the necessary assessments.
41Subsequent to Khan this Court in Bussa v Minister for Immigration & Anor [2019] FCCA 655 (“Bussa – FCCA”) had occasion to consider an applicant’s argument that “accompanied by” in cl 485.223 of Sch 2 to the Migration Regulations referred to everything provided to the Tribunal up to the time of the Tribunal decision. The argument was rejected, and at [14] per Judge Riethmuller in Bussa – FCCA this Court observed that:
The final argument was based upon an interpretation of the words “accompanied by” with respect to the provision. In two earlier single-Judge decisions, one by Katzmann J in Anand v Minister for Immigration & Citizenship [2013] FCA 1050; (2013) 215 FCR 562 and one by Burchardt J in Nguyen v Minister for Immigration & Anor [2016] FCCA 1523, their Honours both concluded that the term “accompanied by” did not require the document to be provided together with the application, and that some flexibility was contemplated. This approach was not approved in Khan’s Case, which concluded that the clause required an objective temporal test: see [14] of Khan’s Case. The period of time between lodging the visa application and providing a properly-made application for a skills assessment was far too long to come within the terms “accompanied by” even on the approach taken by Katzmann J and Burchardt J.
42Bussa – FCCA was appealed to the Federal Court. The appeal was dismissed: Bussa v Minister for Immigration and Border Protection [2019] FCA 1994 (“Bussa – Federal Court”). In Bussa – Federal Court at [21] per Anastassiou J it was observed that evidence of a skills assessment applied for after the date of the application was not evidence accompanying the application, and at [24] per Anastassiou J that:
Despite the unfortunateness of the appellant’s situation, clause 485.223 essentially requires strict compliance. In Anand v Minister for Immigration and Citizenship [2013] FCA 1050; 215 FCR 562; 136 ALD 633 Katzmann J (at [28]) considered whether there might in appropriate circumstances be a degree of elasticity to what is meant by “accompanied” in clause 485.223. In Khan, Tracey J (at [14] and [15]) warned of the difficulties that could arise if the temporal requirement that the applicant be accompanied by the relevant evidence were to be “stretched”. It is unnecessary for me to express any view on the question of what, if any, latitude there might be in relation to the temporal requirement in clause 485.223, other than to say that there is nothing in the clause which confers a general discretion to excuse a failure to provide contemporaneously with the application evidence of a relevant application for a skills assessment.
43In Bussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] HCA 18; (2020) 94 ALJR 497; (2020) 377 ALR 228 (“Bussa – High Court”) at [14] per Nettle J (footnotes omitted) the High Court (constituted by a single judge), dismissing an application by Mr Bussa under s 75(v) of the Australian Constitution, observed that:
In any event, the application does not present an arguable basis for the relief sought. Judge Riethmuller and Anastassiou J were correct that the reasoning of the Full Court in Khan is determinative. In contradistinction to provisions of the kind considered in Berenguel, which direct attention to whether an applicant “has” prescribed skills at the time of application, cl 485.223 refers to whether the application itself “was accompanied by” prescribed evidence. As this Court indicated in Berenguel, the difference in terms reflects a difference in effect: that criteria of the former, but not the latter, kind may be satisfied by evidence provided to the Minister after the time of submitting the application and considered in accordance with ss 54, 55 and 56 of the Migration Act. And, as Tracey J reasoned in Khan, the form of cl 485.223 is evidently to ensure that an applicant for a visa has applied for a skills assessment and thus demonstrated a readiness and willingness to undergo the assessment at the earliest opportunity. Were it otherwise, as Tracey J recognised, an applicant could delay acquiring the skills necessary to fulfil the substantive visa criterion for so long as the visa application and any merits review processes were on foot. And, even then, the question of whether the plaintiff had acquired a positive skills assessment by the time of the judicial review proceedings would be irrelevant.
(Footnotes omitted)
44The High Court in Bussa – High Court found that the “accompanied by” criteria in cl 485.223 of Sch 2 to the Migration Regulations, which for all intents and purposes – save one referred to at [51] below – is the same as the “accompanied by” criteria in reg 5.19(2)(b) of the Migration Regulations and is in contradistinction to the criteria considered by the High Court in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417; (2010) 84 ALJR 251; (2010) 114 ALD 1 (“Berenguel”), and that whilst the criteria in Berenguel could be satisfied at a time after the visa application was made the “accompanied by” criteria “reflects a difference in effect” and that the “accompanied by” criteria presently under consideration is not of a “kind [that] may be satisfied by evidence provided … after the time of submitting the [visa] application”: Bussa – High Court at [14] per Nettle J. In Bussa – High Court the High Court expressly said that the approach in Bussa – FCCA and Bussa – Federal Court treating the reasoning in Khan as determinative was correct: Bussa – High Court at [14] per Nettle J.
45In Bussa – FCCA at [14] per Judge Riethmuller this Court said that the conclusion in Anand (and also in Nguyen) that “accompanied by” did not require filing of the accompanying document with the visa application “was not approved” in Khan, while in Bussa – Federal Court at [24] per Anastassiou J the “accompanied by” criteria was said to be one of strict compliance. The Court notes that in Bussa – High Court at [11] per Nettle J the High Court observed that in Bussa – Federal Court the Federal Court “rejected all grounds of appeal, upheld … [this Court’s] reasoning as to the application of Khan, and held, … that cl 485.223 required “strict compliance””.
46It is plain that the Full Court of the Federal Court in Khan took the view that Anand had stretched too far the meaning of “accompanied by” in cl 485.223 of Sch 2 to the Migration Regulations: at [14] per Tracey J, and that there was, rather, an objective temporal test as to whether the visa application was accompanied by the relevant evidence “at the time of the visa application”: at [15]-[17] (the quote is from [17]) per Tracey J.
The factual matrix established by the Tribunal Decision is that:
(a)the Graduate Visa application was made by Mr Yaqoob on 10 July 2016;
(b)the Graduate Visa application was not accompanied by any evidence of health insurance, and in this regard the Tribunal preferred the evidence obtained from the Department records to that of Mr Yaqoob, and his friend Mr Khan. The assessment of evidence, and the weight to be attributed to it, was part of the Tribunal’s fact finding function, and the weight to be given to the evidence was a matter for the Tribunal: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per RD Nicholson J;
(c)Mr Yaqoob was requested by the Department, in the period between the making of the Graduate Visa application and the Delegate’s Decision (from 10 July 2016 to 24 August 2016) to provide evidence of health insurance, but Mr Yaqoob failed to do so; and
(d)Mr Yaqoob provided evidence that he had health insurance at the time of making the Tribunal Review Application on 24 August 2016. In this respect it is however worth observing that:
(i)although the Tribunal Review Application was lodged on 24 August 2016: CB 74 (showing an application lodgement date of “24/08/2016 16:37:13 AEST”) the written statement asserting that evidence of health insurance had been uploaded is dated 28 August 2016, and therein Mr Yaqoob says that he “submitted the required documents on 07/08/2016 … including evidence of my Health Insurance”: CB 76, but makes no mention of being assisted by Mr Khan in relation thereto. Further, Mr Yaqoob attaches the evidence of his health insurance being a new health insurance policy from 16 July 2016 that he “enrolled” in “to fulfil the health requirement for my visa application”: CB 76. The annexed letter from iman Australian Health Plans indicates that health insurance was taken out with effect from 16 July 2016, and the date of issue of the plan was 18 July 2016: CB 77 and 80; and
(ii)what follows from that is of course that no evidence of the health insurance relied upon by Mr Yaqoob before the Tribunal could have been attached to his Graduate Visa application on 10 July 2016 because the relevant health insurance was not in effect until 16 July 2016, and evidence of the relevant health insurance was not issued until 18 July 2016. And, despite the requests that were made by the Department, evidence of health insurance was not then provided until after the Delegate’s Decision to refuse the Graduate Visa application, and until, at the earliest, 24 August 2016 (and possibly 28 August 2016) upon the making of the Tribunal Review Application.
It follows from the above that the conclusion that Mr Yaqoob did not meet the criteria under cl 485.215 of Sch 2 to the Migration Regulations was plainly open, and one which any reasonable person might reach, because it is clear that the Graduate Visa application was not accompanied at the time of application by evidence of Mr Yaqoob’s health insurance. In fact, that evidence was not provided for at least a further 45 (and possibly 49) days after the making of the Graduate Visa application. Nor can it be said, as ground 1 asserts, that it has simply been assumed that Mr Yaqoob did not attach evidence of health insurance to his Graduate Visa application. The Tribunal’s findings are not an assumption, but a finding of fact made by the Tribunal having considered all of the relevant evidence, and having weighed that evidence, and having preferred the evidence to be obtained from the Department records to that of Mr Yaqoob and his friend Mr Khan. As set out above, that fact finding task is one for the Tribunal. Further, the Tribunal was entitled to draw reasonable inferences from the material before it (including, the Department records of which it had evidence): Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [39]-[41] per Gummow and Hayne JJ, and even if the evidence to support the Tribunal’s conclusion was “slight” (which in the Court’s view it was not), that would have been sufficient to sustain the Tribunal’s finding as to whether the Graduate Visa application was accompanied by evidence of health insurance in any event: “VAS” v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]-[19] per Gray J, Moore and Weinberg JJ. There was therefore evidence sufficient and adequate to sustain the Tribunal’s finding that Mr Yaqoob did not meet the criteria in cl 485.215 of Sch 2 to the Migration Regulations with respect to whether the Graduate Visa application was accompanied by evidence of his health insurance at the time of application. It follows that in this respect there is no jurisdictional error in the Tribunal Decision.
Finally, and further and in any event, even if the Court were to adopt – contrary to recent authority cited above at [20] – the more flexible approach to the provision of the accompanying health insurance evidence adopted in Anand and Nguyen, the lag in Mr Yaqoob providing evidence of his health insurance is such (either 45 or 49 days) that the failure to meet the criteria in cl 485.215 of Sch 2 to the Migration Regulations is still made out on the facts, and would not establish jurisdictional error in the Tribunal Decision.
Jurisdictional error otherwise
The Court is also cognisant that Mr Yaqoob was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error being made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. In the Court’s view, there is nothing in the materials before it which indicates that the Tribunal made a jurisdictional error otherwise in the Tribunal Decision.
CONCLUSION AND ORDERS
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error. It follows that there will be an order dismissing the Judicial Review Application filed on 10 July 2017.
There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 6 July 2022
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