FEDERAL COURT OF AUSTRALIA

Tauqueer v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1883 

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs, to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1    This appeal raises a single ground which, unfortunately for the appellant, must fail.

2    By a notice filed on 12 June 2019, the appellant appeals from the judgment and orders of a judge of the Federal Circuit Court of Australia delivered on 23 May 2019.

3    The primary judge dismissed the appellant’s application for judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal), dated 23 December 2016, affirming a decision of a delegate of the first respondent (the delegate) to refuse to grant the appellant a Skilled (Provisional) (Class VC) visa.

4    One of the requirements for the grant of a Subclass 485 visa contained in cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) required that the application be accompanied by evidence that the appellant had applied for an Australian Federal Police (AFP) check during the 12 months immediately before the day it was made.

5    The appellant applied (onshore, and via the internet) for a Skilled (Subclass 485) visa on 31 May 2016.

6    In 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?”, the appellant said: “No”.

7    On 20 June 2016, the delegate refused to grant the visa on the basis that the appellant did not satisfy the requirements of cl 485.213 of the Regulations. The delegate observed that the appellant had declared in his application form that he had not applied for an AFP check during the 12 months immediately before the day the application was made. Accordingly, the delegate found the appellant did not satisfy the requirements of cl 485.213.

8    On 7 July 2016, the appellant lodged with the Tribunal an application for review of the delegate’s decision. In his application for review, the appellant appointed a migration agent as his authorised recipient.

9    By a letter dated 15 November 2016 and sent by email to the appellant’s authorised recipient, the Tribunal invited the appellant to attend a hearing on 8 December 2016.

10    On 1 December 2016, the Tribunal received an email from the appellant’s authorised recipient enclosing a completed response to the hearing invitation, a copy of the appellant’s passport pages, and an AFP clearance certificate dated 28 October 2016.

11    The appellant attended the hearing on 8 December 2016, and was given until 16 December 2016 to provide the Tribunal with further submissions and documents on which he sought to rely.

12    On 16 December 2016, the appellant’s migration agent provided the Tribunal with a statement from the appellant dated 15 December 2016, an AFP clearance dated 28 August 2014, and a “National Criminal History Check” (NCHC) issued on 7 March 2016.

13    In his statement, the appellant explained that he “was under impression that my case officer would request me upon my application lodgement if they believe” (sic) he required an AFP certificate. The appellant’s statement referred to his 2014 AFP clearance and 2016 NCHC, and said that he believed that these documents would be sufficient to meet the applicable requirements for the grant of the visa.

14    On 3 January 2017, the Tribunal affirmed the delegate’s decision.

15    The Tribunal identified that the issue before it was whether the appellant satisfied cl 485.213.

16    The Tribunal noted that, at the hearing, the appellant confirmed that he had not applied for an AFP check in the relevant 12 month period, and that he had made the application for the certificate he provided to the Tribunal after that date.

17    The Tribunal had regard to the NCHC dated 7 March 2016, which was provided by the appellant after the hearing. It noted that, according to the website address on the NCHC provided by the appellant, the check was conducted by a private company. While the Tribunal accepted that the NCHC provided essentially the same information as the AFP check (which says that there are “no disclosable court outcomes recorded” on the finger print and name based search of the records of any Australian police force), it found that it was not an AFP check.

18    Accordingly, the Tribunal found that the appellant did not satisfy the requirements of cl 485.213.

19    On 31 January 2017, the appellant filed in the Federal Circuit Court an application seeking judicial review of the Tribunal’s decision. On 16 May 2019, a final hearing was held and on 23 May 2019 the primary judge pronounced orders dismissing the judicial review application and delivered reasons for judgment.

20    The primary judge set out the background to the matter including its procedural history. He summarised the applicable principles, relevant visa criteria and the Court’s jurisdiction to grant relief.

21    The primary judge outlined the ground of the application, namely that the Tribunal erred by failing to consider the NCHC.

22    The primary judge also recorded the appellant’s submission that the NCHC served the same purpose as an AFP clearance certificate.

23    The primary judge found that the Tribunal had express regard to the NCHC, but correctly found that it was not an AFP check. His Honour found that neither the Victoria Police certificate nor the NCHC certificate provided by the applicant met the essential requirement of the criterion prescribed by cl 485.213. The primary judge found that the applicant failed to demonstrate that his application was accompanied by evidence that he had applied for an AFP check, citing Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 for the proposition that the correct test to apply is an objective temporal test which does not import notions of fairness and that the Tribunal had no power or discretion which it could exercise to accept documents other than an AFP check, even if they provided the same information.

24    The primary judge also found that no other decision was open to the Tribunal, that hardship was not a mandatory relevant consideration, citing Annam v Minister for Home Affairs [2019] FCA 237 at [14]-[17], and that no jurisdictional error had been established. He accordingly dismissed the application.

25    On 12 June 2019, the appellant lodged a notice of appeal in this court, contending in substance that the primary judge had erred in law.

26    Although the result may be viewed as an arguably unfair one in a case, such as this, where it is not disputed that the appellant does not have a criminal record, the conclusion of the primary judge that the correct test to apply is an objective temporal test which does not import notions of fairness, and that the Tribunal had no power or discretion which it could exercise to accept documents other than an AFP check, even if they provided the same information, is clearly correct. As Tracey J (with whom Charlesworth and Derrington JJ agreed) explained in Khan Minister for Immigration and Border Protection [2018] FCAFC 85 with respect to the similarly worded cl 487.216 (“The application is accompanied by evidence that … the applicant … has applied for an Australian Federal Police check during the 12 months immediately before the day when the application is made …”):

15.    The clause establishes an objective temporal test. Whether or not there is some flexibility in the test, nothing decided in Anand [v Minister for Home Affairs [2019] FCA 237] 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.

16.    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.

17.    The 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.

18.    Responsibility for obtaining the evidence is that of the visa applicant, not the Minister. The Regulations give primacy to that consideration over personal considerations that might explain that the reason why a person has been unwilling or unable to obtain evidence of the assessment application is benign. The present case is on point. The appellant’s subjective reason for applying for the visa on the day that he did was that his student visa would expire on that day, and the expiry of the visa may have had the consequence that he could not apply for a new substantive visa without first leaving Australia. Nothing in the text, context or purpose of cl 485.223 contemplates considerations of that kind to give effect to the inquiry as to whether, objectively, the application was accompanied by the evidence …

27    Those reasons apply squarely here. As Tracey J said, a visa application is either accompanied by the necessary evidence or it is not. In this case, like Khan, it was not.

28    The appellant contended before me that the website should not permit an application to enter “No” in answer to the critical question because, in effect, the visa application is doomed once that answer is entered, in circumstances where no AFP check had been obtained. One cannot help but have some sympathy with that submission, but, for the reasons I have set out above, it is to no avail.

29    Accordingly, the appeal must be dismissed, with costs.

Associate:

Dated:    18 November 2019