Annam v Minister for Home Affairs

1. That the application be dismissed.
2. The name of the first respondent be amended to read "Minister for Home Affairs".
3. The applicant is to pay the first respondent's costs of the application as agreed or assessed.
4. The applicant have liberty to apply for orders concerning the timeframe in which the order for costs may be enforced. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CHARLESWORTH J: 1 This is an application for leave to appeal from orders of the Federal Circuit Court of Australia (FCCA) made on 25 October 2018: Annam v Minister for Immigration & Anor [2018] FCCA 3232. The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a visa under the Migration Act 1958 (Cth). 2 I made orders dismissing the application on 6 February 2019. I delivered oral reasons at the hearing. I now provide written reasons to substantially the same effect. 3 Section 31 of the Act provides that there are to be prescribed classes of visa and that the Migration Regulations 1994 (Cth) may prescribe the criteria for visas of that particular class. Section 65 of the Act provides that if the Minister is satisfied that a visa applicant fulfils the criteria for the visa, the Minister must grant the applicant the visa. Conversely, however, if the Minister is not so satisfied, the Minister must refuse to grant the visa. 4 The applicant applied for a Temporary Graduate (class VC) Temporary Graduate (Post-Study Work) (subclass 485) visa. It was a mandatory criterion for the grant of the visa that, when the application was made, it was accompanied by evidence that, relevantly, the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the visa application was made: reg 2.03 and cl 485.213 of Sch 2 of the Regulations. 5 It is not contested that, when the applicant made his visa application, it was not accompanied by evidence that he had applied for an Australian Federal Police check during the 12 months immediately before the day that his application was made. The application form completed by the applicant posed the following question under the heading Australian Federal Police: 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? In answer to that question, the applicant truthfully responded "No." 6 It was on that basis that the Tribunal affirmed the delegate's decision to refuse to grant the visa. The learned primary judge concluded that the Tribunal did not commit jurisdictional error by affirming the delegate's decision. 7 The learned primary judge summarily dismissed the application for judicial review pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). The power to summarily dismiss a proceeding is not to be exercised lightly, as the primary judge said (at [3]). His Honour concluded (at [43]) that the applicant had not raised an arguable case for any relief in the nature of the Constitutional writs. 8 An order dismissing an application pursuant to r 44.12 of the Rules is an interlocutory order. Leave to appeal from the order is required: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 9 The Court's discretion to grant leave to appeal is unfettered. There are, however, well-settled principles that guide the exercise of the discretion. Relevantly, the factors may include whether, in all of the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by the Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 - 399 (Sheppard, Burchett and Heerey JJ). 10 It is also relevant, as Counsel for the Minister properly acknowledged, that the decision of the learned primary judge had the effect of bringing the proceedings before him to an end. That is a consideration to which considerable weight should be granted when exercising the discretion as to whether or not to grant leave to appeal. 11 Mr Annam appeared self-represented on this appeal. His grounds of appeal are discursive. It is convenient to summarise the arguments as they were advanced in the course of Mr Annam's oral submissions. Mr Annam argued that he had not been advised at the time of making the visa application that the criterion with which we are presently concerned was a mandatory criterion for the grant of the visa. Mr Annam said that he was not aware that he could not succeed on his visa application unless he had made an application for an Australian Federal Police check before he lodged the visa application. Mr Annam submitted from the bar table that he had been assured at the time that he made his visa application and made the application for the police check that it did not matter the order in which the applications were made. Interpreted broadly, it seems that Mr Annam seeks to argue that there was a want of procedural fairness in that he had not been informed by the Tribunal that the criterion was a mandatory one. 12 That submission cannot succeed for a number of reasons. As has been mentioned the criterion is one that applies at the time that the application for the visa is made. At that time, the Tribunal was not seized of jurisdiction to review the decision of the Minister to refuse the visa and could have no obligation to provide advice to a visa applicant in Mr Annam's position. Moreover, the form completed by the applicant by which he applied for the visa gave notice that the visa application may not be successful if certain criterion were not met or if certain steps had not been taken before the visa was applied for. 13 It was then argued that the criterion in cl 485.213 of the Regulations is not mandatory at all. I do not consider that that argument has any prospects of succeeding on the proposed appeal. It is contrary to authority of the Full Court of this Court in relation to other provisions of the Regulations that cannot be relevantly distinguished: Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [20] (Tracey, Charlesworth, Derrington JJ). 14 To similar effect, it was argued that the timeframe in which the application for the police check must be made is flexible and that considerations of fairness and compassion must be taken into account when precluding a person from eligibility for a visa on the grounds that the police check application was not made in the prescribed period. 15 In this case, the application for the police check was made late by a matter of days. Mr Annam submitted that the refusal of the visa application has caused him to suffer emotional and financial distress. 16 It may be accepted that cl 485.213 has, in fact, operated harshly in Mr Annam's case. The legal question for determination is whether hardship of the kind expressed by Mr Annam is a mandatory relevant consideration to be taken into account in refusing to grant the visa. It has been established by the Full Court that it is not: Khan at [15] and [22]; see also Kaur v Minister for Immigration and Border Protection [2018] FCA 1765 at [21] (Charlesworth J). 17 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. 18 I have had regard to the grounds of appeal as expressed as a whole, including more generalised complaints by Mr Annam concerning the conduct of the proceedings before the primary judge, however I am not satisfied that the remainder of the grounds of appeal allege appellable error. 19 In conclusion, I am not satisfied that the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration and I do not consider it to be in the interests of justice to grant leave to appeal. Accordingly, the application must be dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.