Babajee v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The application for extension of time and leave to appeal is refused.
2. The applicant pay the first respondent's costs of and incidental to the application, to be agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'CALLAGHAN J: 1 When this matter was called on this morning, there was no appearance for the applicant. Yesterday, my chambers received from the applicant, who is self-represented, an outline of his written submissions and a document headed "(Amended) Notice of appeal from the Federal Circuit Court of Australia". That document is, in truth, a proposed amended notice of appeal because the application before me is one for extension of time and leave to appeal. 2 Rule 35.33 of the Federal Court Rules 2011 (Cth) provides, among other things, that if a party is absent when an application is called on for hearing, any party may apply to the court for an order that, among other things, the application be dismissed. 3 Ms Roscoe, who appears for the Minister, did suggest that I might stand the matter down further in order to make contact with the applicant. But in my view, the applicant has had sufficient time to respond to correspondence by email from my Associate this morning. 4 In my view, it is appropriate in the circumstances of this application that, as the Minister submits, the application be dismissed. That is so principally because it has no conceivable merit at all. Let me explain why. 5 The applicant seeks an extension of time and leave to appeal from the judgment and orders made by a judge of the Federal Circuit Court of Australia, dismissing his application for judicial review of a decision made by the Administrative Appeals Tribunal which affirmed the decision of the first respondent not to grant the applicant a Skilled (Provisional) (Class VC) visa. 6 It is a requirement for the grant of that visa that it be accompanied by evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made: cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The applicant erroneously applied for a national police history check from "CVCheck", and not from the Australian Federal Police. As he did not accompany his visa application with a police check from the Australian Federal Police, the Tribunal found that he did not fulfil the requirements for the grant of a visa of the type sought by the applicant, and because that requirement can only be fulfilled during the 12 months immediately before the day the application was made, the applicant was unable to rectify the defect of not having the Australian Federal Police check. The Tribunal accordingly affirmed the decision of a delegate of the Minister not to grant him a visa. On the judicial review application, the Federal Circuit Court found no legal error in the decision of the Tribunal. 7 The applicant seeks leave to appeal the decision below. His proposed notice of appeal poses a series of questions, but in substance, as Ms Roscoe agreed, it raises the following grounds: (1) the applicant satisfied cl 485.213 of the Regulations at the time of application; (2) the first respondent agreed that the applicant complied with cl 485.213 when he did not refuse the application on 30 June 2017, but instead asked the applicant to provide further information, and, as a further aspect of this ground, the applicant was asked to provide further information in support of his visa application through an email dated 30 June 2017; (3) section 15AB of the Acts Interpretation Act 1901 (Cth) assists in determining the proper construction of cl 485.213 of the Regulations; (4) Parliament intended that the purpose and context of cl 485.213 be taken into account; (5) the intention of the provision is to determine whether an applicant is of good character; and (6) the primary judge erred in finding that the Tribunal did not fall into jurisdictional error in its fact-finding concerning the certificate's credibility and genuineness in relation to the Australian Federal Police check certificate. 8 None of these grounds has any merit. The Federal Circuit Court of Australia correctly reasoned that the police check obtained from CVCheck was not an Australian Federal Police check and did not satisfy the requirement of cl 485.213, with a consequence that the criterion specified in it had not been fulfilled. None of the matters sought to be raised by the applicant bear upon whether the national police history check from CVCheck should have been acceptable as fulfilling the criterion in cl 485.213. The Tribunal had no power and no discretion which it could exercise to accept the police check from CVCheck in lieu of a police check from the Australian Federal Police for the purposes of that clause, and it did not err in not doing so. 9 As Wigney J said in Mir v Minister for Immigration and Border Protection [2018] FCA 697 at [46]-[47]: It is quite clear from the terms of cl 485.213 that the requirement must be satisfied "when the application was made". Here, it was not. It is equally clear that there is a second temporal requirement, that requirement being that the application for the Australian Federal Police check be made during the 12 months immediately before the day the application is made. That requirement was also not satisfied in Mr Mir's case. The fact that Mr Mir subsequently applied for an Australian Federal Police check is immaterial, as unfortunate as that may be for Mr Mir. Regrettably, the technical requirements of the Act and the regulations operate harshly for some visa applicants. That itself, however, is no reason to construe the provisions differently. 10 Accordingly, the application for extension of time and leave to appeal is refused, with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.