Sehgal v Minister for Immigration and Border Protection

Federal Court of Australia|2018-03-01|Before: Middleton J

The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 On 1 March 2019, the Court ordered that the appeal be dismissed with costs. These are the reasons for those orders. 2 By Notice of Appeal dated 7 September 2018, the Appellant seeks to appeal from the whole of the orders of the Federal Circuit Court (the 'FCC') made on 21 August 2018. The primary judge delivered ex tempore reasons on the day the orders were made that were later published as Sehgal v Minister for Immigration & Anor [2018] FCCA 2587. 3 The FCC dismissed the Appellant's application for judicial review of a decision of the Second Respondent (the 'Tribunal') first given orally on 30 March 2017, with written reasons later published on 15 May 2017. The Tribunal had affirmed a decision of a delegate of the First Respondent (the 'Minister') not to grant the Appellant a Skilled Provisional (Class VC) Subclass 485 Visa (the 'Visa').

RELEVANT LEGAL FRAMEWORK 4 The criteria to be met by the Appellant for the grant of the Visa were contained in Pt 485 of Sch 2 to the Migration Regulations 1994 (Cth) (the 'Regulations'). Relevantly, cl 485.213 of Sch 2 to the Regulations provided as follows: When the application was made, it was accompanied by evidence that: (a) the applicant; and (b) each person included in the application who is at least 16; had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.

FACTUAL OVERVIEW 5 On 24 August 2016, the Appellant applied for the Visa via the online application lodgement process administered by the Minister's department. 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 responded 'No' (the 'negative response'). Above the relevant question on the online application appeared a warning as stated below: To be eligible to be granted a subclass 485 visa through the Graduate 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. 6 On 2 November 2016, the Minister's delegate refused to grant the Appellant the Visa. The delegate observed the Appellant had made the negative response, and also observed, following a check of departmental systems, that the Appellant had not provided additional documentation at the time of his visa application to indicate that he had applied for an Australian Federal Police check prior to lodgement of his visa application. The delegate therefore concluded that the Appellant did not satisfy cl 485.213 of Sch 2 to the Regulations. 7 On 15 November 2016, the Appellant applied to the Tribunal for a review of the Minister's delegate's decision. 8 Before the Tribunal, the Appellant submitted a National Police Certificate issued by the Australian Federal Police dated 3 November 2016. 9 On 30 March 2017, the Appellant appeared at hearing before the Tribunal to give evidence and present arguments in relation to the issues on the review. The Tribunal gave an oral decision on the review that day, affirming the Minister's delegate's decision. The Tribunal published a written record of its decision on 15 May 2017.

THE TRIBUNAL DECISION 10 The Tribunal noted that the Appellant had applied for the Visa on 24 August 2016, and had given the negative response in his visa application. The Tribunal also noted that the Appellant had confirmed at the hearing before it that he had not, in the 12 months before making the visa application on 24 August 2016, applied for an Australian Federal Police check of criminal records and that there was no evidence of an Australian Federal Police check accompanying the Appellant's visa application. The Tribunal concluded the Appellant did not meet cl 485.213 of Sch 2 to the Regulations, and therefore affirmed the Minister's delegate's decision.

THE FCC PROCEEDINGS 11 On 1 May 2017, the Appellant applied to the FCC for judicial review of the Tribunal's decision. The ground of application agitated before the FCC is contained at [8] of the primary judge's written reasons. 12 Having set out the terms of cl 485.213 of Sch 2 to the Regulations, the FCC concluded (at [9]): It appears to me that there is no basis upon which the [Appellant] could succeed in the judicial review proceedings. The [Appellant] is not eligible for the visa, as he has not complied with the relevant visa condition requiring him to have evidence of or having applied for the police check accompanying the visa application. Even accounting for the looseness of timeframe surrounding the word 'accompanied' it is now far too late to provide a copy or the police check or evidence that he applied for the check. (Citations omitted) 13 The FCC considered that as the Appellant was ineligible for the visa, his application for judicial review should be refused (at [11]). The FCC also observed that the factual circumstances of this case were similar to those that arose in Mir v Minister for Immigration & Border Protection [2018] FCA 697 ('Mir') (at [13]), which also resulted in the visa applicant's application for judicial review in that case being refused.

APPEAL TO THIS COURT 14 Before this Court, the Appellant identifies two grounds of appeal accompanied by several particulars many of which overlapped. In summary the Appellant claims that: (1) the FCC failed to conclude that the Tribunal erred jurisdictionally because the Tribunal did not take into account relevant matters, and took into account irrelevant matters, in determining the review - namely that it erred in law in determining that cl 485.213 of Sch 2 to the Regulations required the Appellant to show that he had applied for an Australian Federal Police check at the time the visa was applied for and the FCC erred in determining that cl 485.213 was a criterion relevant to whether the Appellant's visa application was validly lodged, as opposed to it having been a criterion relevant to the grant of the visa; and (2) the FCC erred and denied the Appellant procedural fairness by failing to produce written reasons for the orders made on 21 August 2018.

CONSIDERATION 15 In respect of item (1) above, the FCC's conclusion that the Appellant did not meet cl 485.213 was correct and no error is manifest in the primary judge's reasons. This is for the following reasons. 16 First, cl 485.213 is a requirement for the grant of the visa. It does not go to the question of the validity of the visa application. This is because the criteria for the validity of a visa application for the Subclass 485 Visa are contained in Sch 1 to the Regulations, not Sch 2 (where Pt 485 is contained). The FCC understood this (see [9] of the primary judge's reasons). To the extent that the Appellant's complaint is actually, as in Mir, that the FCC should have found that a failure to comply with cl 485.213 simply meant that there was no valid visa application and that there is was no basis to refuse the grant of the visa, this cannot be sustained for the same reason. 17 Secondly, the language deployed in cl 485.213 makes it plain that there are two temporal elements that need to be satisfied: (a) evidence of the visa applicant having applied for the Australian Federal Police check in the 12 months immediately preceding the date of lodging the visa application; and (b) that evidence of such a step having been already taken 'accompanied' the visa application at the time the application is made. In this proceeding, it is clear that there was no evidence of the Appellant having applied for the Australian Federal Police check in the 12 months immediately preceding 24 August 2016. Indeed, the negative response and the Appellant's confirmatory evidence before the Tribunal make it clear that it was quite open to the Tribunal to positively conclude that the Appellant had not satisfied either temporal element in cl 485.213. 18 For these reasons, item (1) above is without merit and is not accepted by this Court. 19 As to item (2) above, there can be no denial of procedural fairness in the FCC giving ex tempore reasons and later providing those settled reasons in writing to the Appellant. 20 The Appellant was present at the time the FCC delivered its ex tempore reasons and the FCC provided its settled written reasons to the Appellant. It has long been accepted that a judge may deliver ex tempore reasons in appropriate circumstances, and later reduce those reasons to to written reasons, including for the purposes of making non-substantive alterations. The Appellant has not been prejudiced in any way from bringing his appeal to this Court by reason of the timing of the settled written reasons of the primary judge. Accordingly, item (2) above is without merit.

CONCLUSION 21 The appeal to this Court should be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

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