Tauqueer v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1883

Tauqueer v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1883

The appellant's visa application was not accompanied by evidence that he had applied for an AFP check during the 12 months immediately before it was made. The later AFP clearance and the National Criminal History Check did not satisfy cl 485.213, and the Tribunal had no discretion to accept a non-AFP check even if it contained essentially the same information. The primary judge was correct to find no jurisdictional error, so the appeal had to be dismissed.

Jurisdiction
Australia
Judgment Date
18 November 2019
Procedural Posture
Migration Appeal From Federal Circuit Court Judicial Review Decision / Appeal Dismissed by the Federal Court
Outcome
Appeal dismissed with costs.
Legal Topics
['skilled (provisional) (class Vc) Visa' 'subclass 485 Visa' 'australian Federal Police Check' 'time of Application Criterion' 'judicial Review' 'jurisdictional Error']
['migration Law' 'administrative Law'] ['skilled (provisional) (class Vc) Visa' 'subclass 485 Visa' 'australian Federal Police Check' 'time of Application Criterion' 'judicial Review' 'jurisdictional Error']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Judicial Review Decision / Appeal Dismissed by the Federal Court

Legal Issues

  1. 1 ['Whether the appellant satisfied cl 485.213 of Sch 2 to the Migration Regulations 1994 (Cth) by having his visa application accompanied by evidence that he had applied for an Australian Federal Police check during the 12 months immediately before the application was made.' 'Whether the Tribunal erred by failing to consider, or by not accepting, the National Criminal History Check as sufficient for cl 485.213.' 'Whether the primary judge erred in dismissing the judicial review application.']

Ratio Decidendi

The appellant's visa application was not accompanied by evidence that he had applied for an AFP check during the 12 months immediately before it was made. The later AFP clearance and the National Criminal History Check did not satisfy cl 485.213, and the Tribunal had no discretion to accept a non-AFP check even if it contained essentially the same information. The primary judge was correct to find no jurisdictional error, so the appeal had to be dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The name of the first respondent be amended to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs".' 'The appeal be dismissed.' "The appellant pay the first respondent's costs, to be agreed or assessed."]