merits of the proposed appeal
39 Mr Mir's proposed grounds of appeal were, at best, unhelpfully vague and ambiguous, if not bordering on incomprehensible. Something more will be said about those grounds of appeal in due course.
40 The main difficulty for Mr Mir was that there did not appear to be any dispute, or at least, no reason to doubt, that he did not comply with the criterion in cl 485.213 of Schedule 2 to the Regulations. That was because, when he made his visa application, the application was not accompanied by evidence that he had applied for an Australian Federal Police check during the 12 months immediately before the date that the application was made. That was clear from the answer given by Mr Mir himself on the first page of his visa application. Mr Mir did not apply for an Australian Federal Police check until a number of months after the delegate had refused his application and after he had lodged his review application with the Tribunal.
41 Mr Mir's submission concerning the proper construction of cl 485.213 has no merit and must be rejected. Contrary to Mr Mir's submissions, it was clear from the fact that cl 485.213 was contained in Schedule 2 of the Regulations that it was a criterion relating to the grant of the visa, as opposed to a criterion relevant to whether a visa application has been validly lodged.
42 Section 31(3) of the Act provided that the Regulations: "…may prescribe criteria for a visa". Regulation 2.03 provided that the prescribed criteria for the grant of a visa were set out in Schedule 2 to the Regulations. That was where cl 485.213 was to be found.
43 It was equally clear that cl 485.213 did not relate to the validity of the visa application. Section 46 of the Act contained provisions relating to the validity of visa applications. Section 46(3) of the Act provided that: "the Regulations may prescribe criteria that must be satisfied for an application for a visa … to be a valid application". Regulation 2.07 provided, in short terms, that the criterion relating to the validity of visa applications were set out in Schedule 1. Needless to say, cl 485.213 did not appear in Schedule 1. Criteria relevant to the validity of the visa in Mir Mir's case were set out in cl 1229 of Schedule 1.
44 It should also perhaps be noted in this context that, whilst it may be correct, as Mr Mir submitted, that the Regulations and, in particular, cl 485.213 may operate harshly in some circumstances, that itself does not provide him with a ground of review. Nor does it provide him with a ground of appeal from the judgment of the primary judge. It is not entirely correct for Mr Mir to say that he was not given any notice of the requirement created by cl 485.213. At the top of the first page of the visa application completed by Mr Mir, the following words appeared:
To be eligible to be granted a subclass 485 visa through the Post-study work stream, you must have already taken steps to meet certain requirements and obtain documentation before you lodge your application. If you do not meet the requirements below, you may not be able to lodge or to be granted a visa.
45 As for Mr Mir's submissions based on Berenguel and Gowda, those were effectively the same arguments that were put to, and rejected by, the primary judge. The primary judge was correct to reject those arguments. In the cases of both Gowda and Berenguel, the criteria under consideration were materially different and distinguishable from cl 485.213. The High Court in Berenguel expressly distinguished a criterion which was in relevantly identical terms to cl 485.213 (see Berenguel at [17]).
46 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.
47 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.
48 Mr Mir's submissions in relation to Berenguel and Gowda are also contradicted by a decision of Katzmann J in Anand v Minister for Immigration & Citizenship [2013] FCA 1050. In that decision, her Honour considered and construed cl 487.216 of Schedule 2 to the Regulations, which was in relevantly identical terms to the criterion in question in this case. The facts and circumstances of Anand were also relatively similar to the facts and circumstances of this case. Her Honour resolved the question of construction in relation to cl 487.216 in the following terms (at [28]):
For the above reasons 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, 5 months after the application was lodged and 2 days after the decision was made. Language cannot be stretched so far that it snaps: compare Wielgus v Removal Review Authority [1994] 1 NZLR 73 at 79 . In contrast to the position in Berenguel the construction for which Mr Anand contended would compromise the purpose of the Regulations.
49 It may be the case that, had Mr Mir applied for his Australian Federal Police check prior to lodging the application, and had forwarded it to the Minister's Department within a short period of time after making the application, he may have met the relevant criterion having regard to the findings of Katzmann J in relation to the elasticity of the words "accompanied by". Unfortunately for Mr Mir, however, he did not apply for his Australian Federal Police check before he submitted his visa application. He only provided evidence of that police check some months thereafter.
50 As for Mr Mir's proposed grounds of appeal, it should be noted again that Mr Mir's oral submissions were not at all addressed to his proposed grounds of appeal. To the extent it is possible to understand Mr Mir's first appeal ground, it appeared to contend that the primary judge erred in not considering the "irreparable loss" that Mr Mir would suffer if his visa application was refused. The primary judge expressed sympathy for Mr Mir's situation and, in that sense, had regard to the loss that Mr Mir might suffer having regard to the refusal of his visa application. His Honour rightly found, however, that the unfortunate result for Mr Mir was largely immaterial. It was not relevant to considering whether the Tribunal had made any jurisdictional error.
51 As for ground two, it is unclear exactly what "procedural matter" Mr Mir contended the Tribunal erred in relation to. If the complaint related to the fact that Mr Mir only applied for the Australian Federal Police check after his application had been made and dismissed, that was no mere "procedural matter". The Tribunal correctly found that it went directly to the question of whether Mr Mir had satisfied cl 485.213.
52 Ground three appears to amount to little more than an assertion of error on the part of the Tribunal. The nature of the alleged "constructive failure" was unclear.
53 The primary judge was correct to find that Mr Mir's application did not demonstrate or raise an arguable case of jurisdictional error by the Tribunal. The decision of the primary judge is not attended by any, or any significant, doubt to warrant consideration by the Full Court.