Federal Court Rejects Visa Appeal Over Incorrect Police Check Submission

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v [NAME] [2018] FCA 1736 Appeal from: [APPELLANT] v [NAME] [2018] [NAME] 1814

File number: VID 841 of 2018

Judge: [NAME] of judgment: 7 November 2018

Catchwords: MIGRATION – appeal from Federal Circuit Court – Subclass 485 visa application - refusal to grant Skilled (Provisional) (Class VC) visa – where a criterion for the grant of that visa is evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made - where appellant erroneously applied for national police check from wrong organisation

Legislation: Migration Regulations 1994 (Cth)

Date of hearing: 7 November 2018

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 5

Counsel for the Appellant: [redacted]

Counsel for the First Respondent: [redacted]

Solicitor for the First Respondent: [redacted]

BETWEEN: [APPELLANT] Appellant

AND: [APPELLANT] FOR IMMIGRATION AND [NAME] PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL [NAME] Respondent

JUDGE: [NAME] OF ORDER: 7 NOVEMBER 2018

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The Appellant pay the costs of the First Respondent, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

[NAME]: 1 The appellant has appealed a decision of the Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal which affirmed the decision of the first respondent not to grant the appellant a Skilled (Provisional) (Class VC) visa. 2 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 is made: cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth). The appellant erroneously applied for a national police history check from "[NAME]" 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 Subclass 485 visa and as that requirement can only be fulfilled during the 12 months immediately before the day the application was made, the appellant 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. 3 The appellant has appealed the decision of the Federal Circuit Court on two grounds as follows:

1. His Honour failed to find or conclude that the essence of the regulation that the applicant has no criminal outcomes or other matters of interest to the police has been satisfied, but held that the applicant is a victim of technicality.

2. His Honour failed to find in equity that the applicant fulfilled the requirement of the requirement [sic] to satisfy that he had no criminal outcomes. 4 Neither ground has any merit. The Federal Circuit Court of Australia correctly reasoned that the police check obtained from [NAME] was not an Australian Federal Police check and did not satisfy the requirement of clause 485.213 with a consequence that the criterion specified in clause 485.213 had not been fulfilled. Nor do matters of fairness or equity bear upon whether the national police history check from [NAME] should have been acceptable as fulfilling the criterion in clause 485.213. The Tribunal had no power and no discretion which it could exercise to accept the police check from [NAME] in lieu of a police check from the Australian Federal Police for the purposes of that clause and did not err in not doing so. 5 Accordingly the appeal must be dismissed. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME].

Associate: Dated: 12 November 2018