Federal Court of Australia

Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1416

Appeal from:

Ahmed v Minister for Immigration [2020] FCCA 622

File number(s):

NSD 386 of 2020

Judgment of:

RARES J

Date of judgment:

11 November 2022

Catchwords:

MIGRATION Held: appeal dismissed

Legislation:

Migration Act 1958 (Cth) s 31(3)

Migration Regulations 1994 (Cth) reg 2.03, Sch 2 cl 485.215

Cases cited:

Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562

Nguyen v Minister for Immigration [2016] FCCA 1523

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

18

Date of hearing:

11 November 2022

Counsel for the Appellant:

Appellant was self-represented

Counsel for the First Respondent:

Ms C Saunders

Solicitor for the First Respondent:

Minter Ellison

ORDERS

NSD 386 of 2020

BETWEEN:

SYED SIDDIQ AHMED

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

RARES J

DATE OF ORDER:

11 NOVEMBER 2022

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Minister may apply, if so advised, for an order for costs of the appeal within 7 days of the publication of the settled reasons delivered orally on 11 November 2022.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

RARES J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia refusing the appellant constitutional writ relief from the decision of the Administrative Appeals Tribunal given on 29 November 2018 that affirmed the decision of a delegate of the Minister to refuse to grant the appellant a temporary graduate (class VC) temporary graduate (graduate work) (subclass 485) visa: Ahmed v Minister for Immigration [2020] FCCA 622.

Background

2    In this case, the merits are all one way and the law the other. Since he applied to the Federal Circuit Court, the Minister and his Department have forced this case through the courts and the appellant to live in a situation of unnecessary stress, uncertainty and exposure to legal costs in circumstances where there is no apparent rational justification for that to have happened.

3    The facts are simple. On 14 February 2017, the appellant applied for the visa in an online application.

4    Relevantly, s 31(3) of the Migration Act 1958 (Cth) created a power in the Governor-General to make regulations prescribing criteria for a visa of a specified class. Regulation 2.03 of the Migration Regulations 1994 (Cth) prescribed those criteria in Sch 2 of the Regulations, in which cl 485.215 provided the following criteria for the visa:

(1)    When the application was made, it was accompanied by evidence that the applicant had adequate arrangements for health insurance.

(2)    The applicant has had adequate arrangements for health insurance since the time the application was made.

5    As became clear only later in the Tribunal, in making his application for the visa, the appellant misunderstood the question:Do you and all applicants included in this application hold health insurance?. That was because he answered “no”, when the fact was that he did.

6    The application form stated that an applicant had to attach evidence of adequate health insurance after the lodgment of the application, on the Attach documents to a lodged application page, and contained a note: “To meet the requirements for this visa you must have adequate health insurance.

7    The delegate noted in her decision that, when the application was assessed on 18 April 2017, an officer of the Department emailed the appellant requesting, amongst other outstanding documents, that he provide evidence within 28 days that he held adequate arrangements in Australia for health insurance. The delegate said that the appellant did not respond and that, as a result, because he failed to meet the requirements of cl 485.215, she refused to grant the visa.

The Proceeding before the Tribunal

8    The appellant sought review of the delegate’s decision in the Tribunal. He gave evidence of health insurance to the Tribunal. It found that, on 31 August 2018, he had provided it with copies of his membership card with one health insurer, a transfer certificate that had been issued subsequently on 2 June 2017 and a letter from another health insurer stating that it had insured him from 31 March 2017. Those documents showed that he had health insurance coverage from 20 October 2014 to at least 2 June 2017.

9    The appellant gave evidence to the Tribunal that he had misunderstood the question in the application form and thought it also related to his wife and children, who were offshore and had not accompanied him to Australia. The Tribunal accepted that the appellant, at all relevant times before the refusal of the visa, held adequate health insurance, but found, inevitably, that his application, when made, was not accompanied by evidence of that fact.

10    The Tribunal noted that in Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562, Katzmann J had construed an analogue of cl 485.215(1) and found that the intention of the clause was to ensure that an application was not processed unless it met certain criteria, including that the applicant for the visa had provided the relevant documents. Her Honour found that such evidence could be submitted within a reasonable time after the application had been made under the analogous clause. The Tribunal noted that, subsequently, in Nguyen v Minister for Immigration [2016] FCCA 1523, Judge Burchardt had held that the words “accompanied by” in cl 485.215(1) were “imperative”, required a very close temporal connection and that a gap of 29 days in providing information failed to meet the requirement. The Tribunal found that the appellant’s provision of evidence of his health insurance to it 18 months after the visa application was made did not satisfy cl 485.215(1).

11    It is not necessary to decide whether the evidence of health insurance must be provided in immediate proximity to the lodgment of the visa on the proper construction of cl 485.215(1) because, in this case, the appellant did so only when the matter was before the Tribunal some 18 months after his visa application.

The Proceeding before the Trial Judge

12    The trial judge found that the Tribunal did not err in, first, following the decisions in Anand 215 FCR or Nguyen [2016] FCCA 1523 and, secondly, affirming the delegate’s decision.

This Appeal

13    In my opinion, it is not possible to discern a jurisdictional error in what the trial judge decided or the Tribunal did. It must follow that I have no choice but to dismiss the appeal.

14    However, the conduct of the Minister’s Department, in the circumstances, is difficult to understand. Once it became clear, after the appellant had given evidence to the Tribunal, that he had made a mistake and that, in fact, he held health insurance at all relevant times to support the application, the Department took no steps to ensure that the time of the Federal Circuit Court and of this Court was not wasted by dealing with an application that should never have needed to be pursued below or in this appeal.

15    Instead of telling the appellant that he would be allowed to reapply for the visa or giving him some reason why that was not possible, the time of both Courts and the Department was wasted defending the proceedings. The Department has caused the expenditure of significant sums of public money in its defences when it appears to have had no intelligible basis for doing so: this has caused a waste of the public resources of both Courts, each of which is overwhelmed with other proceedings in which the Minister is a party, and, from the personal position of the appellant, has placed him in administrative limbo for five years. This is an unacceptable position.

16    There is no explanation before me as to why the Federal Circuit Court had to hear the application below or this Court has had to hear an appeal by the appellant who was apparently qualified for the visa but was mistaken in answering one question. The pursuit of both proceedings could and should have been avoided if the appellant were invited to make another application. The Department’s failure to tell him that the Minister could and or would give him the ability to make a further application, once the merits were apparent (as they emerged in the Tribunal), is incomprehensible.

17    In my opinion, the Registrar should draw these reasons to the attention of the Minister for a personal response as to why the time of both Courts was taken and the public’s money apparently wasted, instead of informing the appellant immediately after he applied to the Federal Circuit Court that, because of the obvious mistake, he would be allowed to make a further application.

Conclusion

18    I order that the appeal be dismissed. I will order that the Minister may apply for costs, if so advised, within seven days of the settled oral reasons being published.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.

Associate:

Dated:    25 November 2022