Babajee v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1280

Babajee v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1280

The application had no conceivable merit because the applicant's CVCheck national police history check was not an Australian Federal Police check and did not satisfy cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth). The Tribunal had no power or discretion to accept the CVCheck check in lieu of an Australian Federal Police check, and the Federal Circuit Court correctly found no legal error in the Tribunal's decision.

Jurisdiction
Australia
Judgment Date
20 October 2021
Procedural Posture
Migration Application for Extension of Time and Leave to Appeal / Application for Extension of Time and Leave to Appeal From the Federal Circuit Court of Australia
Outcome
Application for extension of time and leave to appeal refused with costs.
Legal Topics
['skilled (provisional) (class Vc) Visa' 'australian Federal Police Check Requirement' 'extension of Time and Leave to Appeal' 'judicial Review of Administrative Appeals Tribunal Decision']
['migration' 'administrative and Constitutional Law and Human Rights'] ['skilled (provisional) (class Vc) Visa' 'australian Federal Police Check Requirement' 'extension of Time and Leave to Appeal' 'judicial Review of Administrative Appeals Tribunal Decision']

Case Brief

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Procedural Posture

Migration Application for Extension of Time and Leave to Appeal / Application for Extension of Time and Leave to Appeal From the Federal Circuit Court of Australia

Legal Issues

  1. 1 ["Whether the application for extension of time and leave to appeal should be granted despite the applicant's absence at the hearing." 'Whether the applicant satisfied cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) by obtaining a national police history check from CVCheck rather than applying for an Australian Federal Police check.' 'Whether the Tribunal or the Federal Circuit Court erred in concluding that the visa criterion was not fulfilled.' 'Whether the Tribunal had power or discretion to accept the CVCheck police check in lieu of an Australian Federal Police check.']

Ratio Decidendi

The application had no conceivable merit because the applicant's CVCheck national police history check was not an Australian Federal Police check and did not satisfy cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth). The Tribunal had no power or discretion to accept the CVCheck check in lieu of an Australian Federal Police check, and the Federal Circuit Court correctly found no legal error in the Tribunal's decision.

Court Disposition

Application for extension of time and leave to appeal refused with costs.

Orders

  • ['The application for extension of time and leave to appeal is refused.' "The applicant pay the first respondent's costs of and incidental to the application, to be agreed or assessed."]