ANAND v Minister for Immigration
[2012] FMCA 499
•15 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ANAND v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 499 |
| MIGRATION – Review of decision of Migration Review Tribunal – application to be ‘accompanied by’ evidence of police check – meaning of ‘accompanied by’ – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.46, 47, 476, 494D, 501 Migration Regulations 1994 (Cth), Sch.1, 2, 4 |
| Berenguel v Minister for Immigration & Citizenship [2010] HCA 8 Gill v Minister for Immigration & Anor [2010] FMCA 587 Patel v Minister for Immigration & Citizenship [2011] FCA 1220 Singh v Minister for Immigration & Anor [2011] FMCA 982 |
| Applicant: | GAGAN ANAND |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2278 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 19 April 2012 |
| Date of Last Submission: | 19 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr L J Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 7 October 2011, and amended on 20 January 2012, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2278 of 2011
| GAGAN ANAND |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), made on 7 October 2011, and amended on 20 January 2012, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 23 September 2011, which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a Skilled (Provisional) (Class VC) visa to the applicant.
Background
The applicant is a citizen of India. On 9 March 2009 he applied for a Skilled (Provisional) (Class VC) visa (“skilled visa”) (Court Book – “CB” – CB 1 to CB 15). He utilised the Department’s electronic lodgement system for this purpose. He was assisted in making his application by a registered migration agent (CB 5).
In that application the applicant was asked under the heading “Australian Federal Police” (CB 1):
“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 applicant answered “No” to that question.
By letter dated 10 June 2009 an officer of the Minister’s department advised the applicant that the Department had not received any documents in support of his visa application (CB 17 to CB 22). Further, the applicant was requested to provide several relevant documents, including evidence that he had applied for an Australian Federal Police (“AFP”) clearance check before he lodged his visa application and, if he had applied, a copy of his AFP clearance certificate (CB 19).
The applicant’s representative responded to the request for documents by email on 9 July 2009 (CB 23 to CB 47, with attachments). In relation to the request for an AFP clearance certificate the representative advised that “AFP is still awaited” (CB 25).
Relevant Regulation
The applicant applied for a skilled visa and was therefore required to satisfy the criteria for that sub-class of visa. That visa contained two subclasses: Subclass 485 (Skilled – Graduate) and Subclass 487 (Skilled – Regional Sponsored). The Tribunal considered the applicant’s claim in relation to both subclasses.
The criteria for both subclasses are set out in Schedule 2 to the Migration Regulations 1994 (Cth) which, at the relevant time, provided:
“485.2 Primary criteria
…
485.21 Criteria to be satisfied at time of application
…
485.216 The application is accompanied by evidence that:
(a) the applicant; and
(b) each person included in the application who is at least 16;
has applied for an Australian Federal Police check during the 12 months immediately before the day when the application is made.
…
487.2 Primary criteria
…
487.21 Criteria to be satisfied at time of application
…
487.216 The application is accompanied by evidence that:
(a) the applicant; and
(b) each person included in the application who is at least 16;
has applied for an Australian Federal Police check during the 12 months immediately before the day when the application is made.”
I note that the application to the Court addresses both cl.485.216 and cl.487.216. However, the substance of the arguments advanced by the applicant before the Court related to cl.487.216. As such, I have focused my consideration on cl.487.216, but it is equally applicable to cl.485.216 as the two clauses are in identical terms.
The Delegate
On 3 August 2009 the Minister’s delegate refused the application for a skilled visa (CB 56 to CB 58). The applicant was notified of the delegate’s decision on 3 August 2009 by email sent to the email address provided by his migration agent (CB 48 to CB 55 and s.494D of the Act).
The delegate found that the applicant had failed to satisfy cl.487.216 as there was no evidence that he had applied for an AFP clearance check prior to lodging his visa application (CB 57). [I note that the while the decision record refers to “reg.487.216” [emphasis added] the delegate’s decision was made with reference to the appropriate provision, namely cl.487.216 of Sch.2 to the Regulations.]
On 5 August 2009 the applicant’s representative advised, by email, that the applicant had posted a copy of the original AFP clearance certificate, on 29 June 2010, to the Brisbane GPO Box held by the Minister’s department (CB 59 to CB 66, including attachments). Attached to the email was a copy of an AFP clearance certificate issued in relation to the applicant dated 16 March 2009 (CB 66), a Commonwealth Bank cheque directed to the AFP for the processing of the clearance check dated 27 February 2009, and a statement from the Commonwealth Bank which indicated that the relevant cheque was presented by the AFP for payment on 11 March 2009 (CB 64).
By email sent on 7 August 2009 an officer of the Minister’s department advised that the Department’s system did not show any evidence of receipt of an AFP clearance certificate in relation to the applicant (CB 67). Further, that since the information and documents contained in the migration agent’s email post-dated the delegate’s decision they could not be taken into consideration. In order for the delegate’s decision to be reconsidered, it would be necessary for the applicant to provide evidence that the AFP clearance certificate was posted to, and received by, the Department.
On 12 August 2009 the applicant’s representative emailed a statutory declaration, made by the applicant on 11 August 2009, to the relevant case officer at the Department. In that statutory declaration the applicant stated that he had posted the AFP clearance certificate by ordinary pre-paid post and therefore retained no evidence that it had been sent or received (CB71 to CB 75, with attachment).
The Tribunal
On 18 August 2009 the applicant applied to the Tribunal for review of the delegate’s decision (CB 76 to CB 82). He was assisted before the Tribunal by the same migration agent (CB 83).
In support of his application for review the applicant provided, by facsimile transmission on 4 August 2011, a written statement in which he outlined the circumstances surrounding the posting of the AFP certificate. He reiterated his claim that he had posted the AFP clearance certificate on 29 June 2009 (CB 93 to CB 96). A statutory declaration by the applicant’s brother, made on 4 August 2011, was also provided. The brother claimed that he had been present when the applicant had posted the document (CB 108).
The applicant was invited to attend a hearing before the Tribunal on 23 August 2011 (CB 90 to CB 92). The applicant and his representative attended on that date (CB 110).
On 23 September 2011 the Tribunal affirmed the decision of the Minister’s delegate and, like the delegate, found that the applicant had not met cl.487.216 (nor cl.485.216) of Sch.2 to the Regulations ([41] – [43] at CB 125).
The Tribunal accepted that the applicant had applied for an AFP clearance check prior to lodging his visa application ([23] at CB 120 and [36] at CB 123). However, the Tribunal considered that cl.487.216 was comprised of two elements: first, that the applicant had applied for an AFP clearance check prior to lodging the relevant visa application; and second, that the visa application was accompanied by evidence of this ([33] at CB 123).
Given that cl.487.216 is expressed to be a “time of application” criterion, the Tribunal held that is was necessary for the applicant to have provided evidence of his application for an AFP clearance check at the time of making his visa application ([35] at CB 123). Since the applicant had only provided evidence subsequent to the lodging of the visa application, and had indicated in his visa application that he had not applied for an AFP check in the preceding twelve months, the Tribunal was not satisfied that cl.487.216 was met ([37] at CB 123 to [38] at CB 124 and [41] at CB 125). Nor that cl.485.216 was met ([41] at CB 125).
In reaching this conclusion the Tribunal considered the submission of the applicant’s representative that the electronic lodgement system did not allow for the attachment of electronic documents until after the application was lodged. While the Tribunal accepted that the electronic lodgement system operated in the way claimed by the applicant, it did not mean that it was not possible to provide supporting documents when making the application ([39] at CB 124). Rather, all documents lodged on the same day as the application would be treated as documents lodged with the application.
Application to the Court
The amended application to the Court contains one ground with particulars:
“1. The Second Respondent committed jurisdictional error by misconstruing and misapplying clauses 487.216 and 485.216 of Schedule 2 of the Migration Regulations 1994 (Cth).
Particulars
(a) The Tribunal misconstrued and misapplied the law in the interpretation given to the words ‘accompanied by’ in that provision.
(b) The Tribunal should have construed those words as applying to evidence provided to the Minister or the Tribunal, prior to the making of the decision of the applicant’s visa application”
Before the Court
At the hearing Mr L J Karp of counsel appeared for the applicant. Mr J Smith of counsel appeared for the first respondent.
The Court had regard to the Court Book, the amended application and written submissions filed by both the applicant and first respondent.
The Applicant’s Submissions
In his oral submission before the Court, Mr Karp elaborated on the applicant’s ground and raised four key propositions.
First, he contended that cl.487.216 was not “grammatically linked” to the heading: “Criteria to be satisfied at time of application”. The relevance of this is to be found when regard is had to Berenguel v Minister for Immigration & Citizenship [2010] HCA 8 (“Berenguel”). There the High Court was concerned with the reasoning and construction of c.885.213 of Sch.2 to the Regulations, including the requirement for an applicant to have “vocational” or “competent” English before the visa described in the class of visa found at that part of Sch.1 (the “Skilled” visa) can be granted.
The Court found, amongst other things, that when regard is had to the purpose of the criteria in cl.885.213, the heading under which it was placed (“Criteria to be satisfied at time of application”) did not “connect grammatically to” the terms of cl.885.213 (see Berenguel at [15], [24] and [26])
Mr Karp submitted that, in the current case, the temporal limitation asserted in the heading and purporting to apply to the operation of cl.487.216 should not be so applied. That is, that it was possible for the AFP check to be lodged at some time prior to the determination of the application and still be understood to meet the requirement that the application be “accompanied by” the AFP check.
Second, that, in those circumstances, it is necessary for the Court to look at the meaning of the words “accompanied by” to determine whether the words themselves express an intention that the evidence of an AFP compliance check be submitted at the time of making the application. It was put to the Court that “accompanied by” meant to “travel with something”. That can be at anytime from the start of the process to the conclusion.
In support of this interpretation the applicant referred the Court to the decisions of other Courts made in relation to other provisions in which the phrase “accompanied by” had appeared. The applicant submitted that those decisions had all interpreted “accompanied by” flexibly and with some “elasticity” (Kirk v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 99 at 103 per Lehane J, Braganza v Minister for Immigration & Multicultural Affairs [2001] FCA 318 at [51] per Wilcox, Weinberg and Stone JJ, Winkler v Directory of Public Prosecutions & Ors (1990) 25 FCR 79 (“Winkler”) at 96 per Wilcox, Burchett and O’Loughlin JJ , Cranky Rock Road v Cowra SC (2004) 150 LGERA 81 at [51] per Tobias JA and Helman v Byron Shire Council & Anor (1995) 87 LGERA 349 at 353 per Handley JA). The applicant submitted that, in the absence of any textual reason to restrict or narrow its meaning, cl.487.216 should be interpreted in the same flexible way.
Third, if cl.487.216 was interpreted narrowly, that is as requiring evidence of an AFP check to be provided at the time of making an application, then it would operate in a capricious and unjust way. Mr Karp argued that there were two bases for this submission:
1)First, that such an interpretation of “accompanied by”, in the context of cl.487.216, could result in an applicant who had complied with the substantive requirement of the clause (applying for an AFP check in the twelve months prior to making the visa application) being denied a visa because they had failed to satisfy the procedural requirement (providing evidence of their request for an AFP clearance check at the time of lodging their application).
2)Second, since there was no corresponding time of decision criterion, the applicant was simply required to show that he had applied for an AFP clearance check, not that one had been performed, or even that a clearance certificate had been issued. In the absence of a corresponding time of decision criterion, cl.487.216 was immaterial to the decision that was required to be made by the delegate. In these circumstances, it would be unfair to reject the application simply because evidence was not presented at the time of making the application.
The fourth argument raised by the applicant was that, although the relevant evidence was not before the delegate when she made her decision, it was before the Tribunal at the time it made its decision. Since the Tribunal is “in the delegate’s shoes” and is constituted for the purpose of “doing again and doing better” that which has been done by the delegate, its consideration is not restricted to only the material that was before the delegate (Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 per Wilcox and Madgwick JJ). In the current case the Tribunal had before it, prior to the time of it making its decision, evidence that the applicant had applied for an AFP check in the twelve months prior to lodging his visa application.
The Respondent’s Submissions
The respondent submitted that the Court should first turn its mind to the ordinary interpretation of the words “accompanied by”. The respondent agreed with the applicant’s interpretation that the words meant to “go along with” or “alongside” the application. However, the respondent pressed that it was difficult to interpret the words as requiring a physical, but not temporal, proximity between the lodging of the evidence of an AFP check and the making of the visa application.
Further, the only reason to depart from relevant “first principles” would be if the broader context of the Regulations undermined the words being given their ordinary meaning. It was submitted that the broader context of the Regulations (and Schedule to the Regulations) supported the phrase being given its ordinary meaning. In particular, it supported a requirement of both temporal and physical proximity to the lodgement of the application. In support of this, the respondent took the Court to three parts of Sch.2 of the Regulations:
1)In cl.487.216 “accompanied by” is followed by “when the application is made”.
2)The phrase “is accompanied by”, in the relevant clause, is expressed in the present tense.
3)The heading of the section is “Criteria to be satisfied at the time of application”.
In response to the applicant’s submission that the heading is not “grammatically linked” to the relevant clause, the respondent also relied on Berenguel. Specifically that the High Court had distinguished the clause it was considering, which was found not to be “grammatically linked” to the heading, from cl.885.214 and 885.215, both of which are linked to the heading by the phrase “the application is accompanied by …”. In the current case, given that the relevant clause similarly includes the phrase “the application is accompanied by …”, it was submitted that it was grammatically linked to the heading.
In support of this approach, and interpretation in Berenguel, Mr Smith took the Court to Nayeem v Minister for Immigration & Anor [2010] FMCA 618 (“Nayeem”)at [36] per Cameron FM, Gill v Minister for Immigration & Anor [2010] FMCA 587 (“Gill”)at [21] per Lloyd-Jones FM, Patel v Minister for Immigration & Citizenship [2011] FCA 1220 at [43] per Roberston J and Singh v Minister for Immigration & Anor [2011] FMCA 982 (“Singh”) at [57] – [58] per Emmett FM to support this.
The applicant had asked the Court to look at the meaning given to the words “accompanied by” in other statutory and regulatory contexts. In reply the respondent submitted that the proper approach was for the Court to consider the phrase in the context of the Regulations and Schedule in which it was found and particularly in relation to the Regulations and the Act, both of which set out, in significant detail, how a valid application is to be lodged. The Court was asked to infer from this detail that the regulatory and statutory provisions governing the lodgement of an application, and the documents that must accompany it, were not intended to be interpreted overly flexibly or with great “elasticity”, as contended by the applicant.
Further, for a Court to find that a provision was arbitrary or capricious, as was pressed by the applicant, it would be necessary for the unfairness complained of to be the direct result of the construction of the provision. In this case it was not. The unfairness complained of by the applicant was a result of the failure of the applicant’s migration agent, or the applicant, to correctly answer the relevant question, or provide the appropriate evidence, at the time of lodging the skilled visa application. More generally, if an applicant is required to make an application to the AFP prior to lodging the visa application then it is not unfair, or overly burdensome, to require them to provide evidence of this when lodging their application, particularly given that the information was material to the decision makers’ decision and assisted in determining whether the applicant had satisfied the public interest criteria.
Finally, while the respondent agreed that the Tribunal stands in the shoes of the Minister’s delegate, it is for the purpose of reviewing the delegate’s decision on a valid application. The Tribunal cannot subsequently consider material that would make valid an application that was not valid before the delegate as to do so would result in the Tribunal acting as a primary decision maker, not a review authority.
Consideration
It must be said that, at first glance, this case stands as another example of the unattractiveness of a rigid and inflexible regulatory scheme that produces what some may describe as an “unfair” result.
However it is also the case that such an approach to the regulatory expression of policy may serve to provide certainty and consistency in outcomes, which is an objective to be desired. As Brennan J (as he then was) said in Re Drake and Minister for Immigration & Ethnic Affairs (No.2) (1979) 2 ALD 634 at 639:
“Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. In matters of deportation, which so profoundly affect the interests of the deportee and his family and which are of relevance to the community at large, inconsistency born of the application of differing standards and values should be reduced as far as it is possible to do so.”
But, in the current circumstances, there is some attraction, at least initially, to Mr Karp’s submissions. The applicant ultimately obtained an AFP check. It may then be rhetorically posed, in circumstances where an applicant meets all other requirements: “What is the problem?”
The answer, however, is not for this Court. There was no attack in the current case on the validity of the relevant Regulations or those relevant parts of the Schedule to the Regulations. Nor was there any attack that the Tribunal applied these inflexibly having regard to policy.
The attack was squarely centred on what was said to be the Tribunal’s misconstruction of the phrase “accompanied by” as it appeared in cl.487.216. The issue for the Court therefore is the proper construction and meaning of that clause.
In this regard I agree with Mr Smith that some assistance can be obtained from an understanding of the ordinary meaning of the word “accompany” ([10] of the Minister’s written submissions):
“… the most apt meanings of that word are ‘to be or exist in company with’ and ‘to go with or alongside; to be a partner or complement to’.”
[Footnotes omitted.]
It is from this focus that the answer to the applicant’s attack can be derived. The applicant relies on Berenguel to argue that the satisfaction of “time of application” criteria can be achieved at any time prior to the making of the decision, rather than being subject to a temporal limitation restricted to the time of lodgement of the application.
The applicant focused on the heading: “Time of application” as the common element in this case to make the link to Berenguel. That is, that just as the High Court in Berenguel found that the heading (“Criteria to be satisfied at the time of application”) did not “grammatically connect” with the relevant individual criterion in that case, so too does it not “grammatically connect” in the current case, and with respect to cl.487.216.
The problem for the applicant is that, as Mr Smith submitted, in the current case there is such a connection. The connection is suppled by the phrase: “the application is accompanied by evidence …”. That connection, and the distinction between the clause the subject of the complaint in Berenguel (cl.885.213) and the clauses ccl.885.214 and 885.215 which are in similar terms to the clause currently under consideration, was recognised by the High Court in Berenguel itself (at [17]).
Berenguel at [17] is in the following terms:
“Division 885.2 sets out primary criteria. Under the heading ‘885.21 Criteria to be satisfied at time of application’ there appears the following:
‘885.213 Either:
(a) the applicant's nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupation, and the applicant has vocational English; or
(b) the applicant has competent English.’
By way of relevant contrast, cll 885.214 and 885.215 require the application to be accompanied by evidence of an Australian Federal Police check and arrangements that the applicant has made to undergo a medical examination. There is no such requirement in respect of proof of compliance with the vocational English or competent English criterion.”
The applicant’s submission in relation to [17] of Berenguel is that it cannot be used to determine this case because it was used by the High Court as an example “… without consideration of the particular clauses”.
First, what the High Court said in relation to ccl.885.214 and 885.215 in contrast to c.885.213 (the subject clause in that case) must apply equally to an understanding of cl.487.216, which is in identical terms and context within the respective set of criteria for the two different visas to which they each relate.
Second, while it is the case that ccl.885.214 and 885.215 were not the actual subject of the matter before the Court, I cannot accept that what the High Court said in relation to them was done without consideration of the particular clauses. But even if it was some “mere” passing observation by the High Court (though, with respect, I do not believe that it was) then this would still be of high persuasive value to this Court.
In my view, it is of some concern that the applicant’s legal representatives have come to this Court now to present an argument, selectively relying on High Court authority, and attempt to swat away a part of the High Court’s reasoning as a mere “inconvenience” to the applicant’s case. Even when given in the context of a contrasting example, the High Court’s words are to be given their due weight. After all, it is by the giving of that example that the High Court illuminated, and explained, its reasoning in relation to the clause that was the subject of the proceedings before it.
This brings us to Gill, the very case which the Tribunal relied upon for its understanding of the meaning of cl.485.216 (which it saw as being, in essence, identical to cl.885.215).
By reference to his understanding of the Tribunal’s decision record (see at [9]), the applicant understood in these proceedings that this is what the Tribunal did. Yet no direct argument was put to this Court about why it was not open to the Tribunal to have regard to Gill. Nor did the applicant to seek to distinguish it. For that matter, no reference was made to such cases as Singh or Nayeem dealing with the matter of the meaning of “accompanied by” in the context of similar sets of visa criteria. All these were cases offered by Mr Smith in submissions. In Singh the subject of consideration, cl.485.216, is in identical terms to cl.487.216. The only difference between the two clauses being that they relate to different classes of visas.
In Singh (at [57]), Emmett FM referred to Federal Court authority:
“In Patel v Minister for Immigration and Citizenship [2011] FCA 1220 at [9]-[10], Robertson J considered a submission that ‘the time of application’ referred to a period rather than to a day, the period being while the visa application was being dealt with up to the date of decision. Robertson J rejected the submission as having insufficient foundation in the statutory language. Similarly in the case before this Court, clause 485.216 requires that, at the time the visa application is made, evidence of an application for an AFP check made during the 12 months immediately before the day on which the visa applicant is made must accompany the application. Such language does not provide a sufficient foundation to allow for the construction contended for by counsel for the Applicant. In other words, it is not necessary in those circumstances to consider if the visa application was not completed until a later date.”
[Emphasis in original.]
What can be summarised as being relevant from all these cases is that the term “accompanied by”, when considered in relation to such clauses as the subject of the current proceedings, requires the relevant evidence (in the current case, an AFP check) to be provided at the time of lodgement.
No reference of substance, let alone submission, was made in the current proceedings to these cases. There was no invitation to the Court to consider whether Gill was plainly wrong such that this Court should not follow it and therefore find that the Tribunal was in error in relying on it.
Instead, the Court was taken to a list of authorities which either did not deal with the Act or the Regulations or, where they did, were not focussed on the relevant clause under consideration or its brethren in Sch.2 to the Regulations (see [29] above for the applicant’s authorities).
At best, I understood the argument derived from those cases to be that this Court should approach the meaning to be derived from cl.487.216 in a flexible and “elastic” way.
Plainly the Courts in those authorities found it was appropriate to resolve the issue before them in that way. But, as is made clear, in those authorities that “elasticity” derived from the terms of the instrument before the Court. For example, in Winkler (at 96) it was the terms of a relevant extradition treaty which were sufficiently “elastic” to allow for the outcome asserted by the applicant to be applicable to cl.487.216.
However, the language of cl.487.216 does not allow for such “elasticity”. It unambiguously requires evidence of an application for an AFP check to be provided at the time of the lodging of the application for the visa.
I should also note that therein lies the very distinction identified by the High Court in Berenguel (at [17]). Clause 858.213 (the subject clause in that case), can be compared with cl.487.215. Both require “the applicant has competent English” and are concerned with a quality, or characteristic, of the applicant the existence of which satisfies that criteria
By contrast (as, with respect, the High Court said: “by relevant contrast”) ccl.885.214 and 885.215, and on a comparative basis cl.487.216, are not directed to a quality or competency held by the applicant the existence of which is subject to the satisfaction of the relevant decision maker, but rather the presentation of evidence (in the current case evidence of an AFP check).
As was submitted by Mr Smith, and as was made clear by the High Court in Berenguel, that that evidence must accompany the application is what links this particular criterion to the heading at cl.487.21 of the Act. The absence of this language in relation to cl.885.213 is at the heart of the very grammatical disconnect identified in Berenguel (at [26]). This is plainly made clear at [24] of Berenguel:
“The evident purpose of the alternative criteria in cl 885.213 is to ensure that, when the Minister or delegate decides upon the application for a visa, the applicant will have demonstrated recent competency in the English language. It does not follow that the criterion can only be satisfied by evidence provided to the Minister at the time of submitting the application. In this connection it is useful to note the contrast between the requirements of cl 885.213 and cll 885.214 and 885.215.”
I cannot see that the Tribunal misunderstood, or misconstrued, cl.487.216. Not only did the applicant not provide evidence of any application to the AFP for a police check at the time of lodging his application, but, in fact, asserted in his application for the visa that he had not applied for this check (CB 1). In these circumstances, it was open to the Tribunal to find that the applicant did not meet one of the criteria for the visa for which he had applied and to therefore affirm the delegate’s decision on this basis.
In submissions the applicant referred to the fact that, at some time subsequent to the lodging of the application, reference was made by his representative in responding to a letter from the delegate in relation to the meaning of “awaiting AFP check”. Further, that after the making of the decision by the delegate, the agent sent evidence that a cheque had been sent to the AFP to pay for a police check in relation to the applicant. Further he sent evidence of the results of the AFP check (see CB 64 to CB 66). The applicant’s position is that, in fact, he had applied to the AFP for the police check and had done so within the twelve month period preceding the making of the visa application, as was required by the criterion.
The difficulty for the applicant in all of this is that the criterion is not directed to the objective fact of whether the application for the AFP check was made in the twelve months preceding the application, but whether he provided evidence of that application at the time of lodging his visa application.
Although the applicant did not develop any relevant argument from the factual scenario referred to above (at [63]), I note, and agree with, the Minister’s submissions that, given the language and the relevant context, the reference to “application” in cl.487.216 is a reference only to the application for the visa, and not to the application for review to the Tribunal. I also agree that this conclusion is supported by the applicable statutory context (s.46 and s.47 of the Act) dealing with valid applications.
In any event, no direct argument to the contrary was put by the applicant in the current case. It remains therefore that while “evidence” may have been provided at some time later, it was not presented at the relevant time (the time of lodging the application).
Mr Karp did raise in submissions that some support for the applicant’s preferred understanding of cl.487.216 could be derived from the fact that, while the requirement for an application for an AFP check is found under the heading of “Time of application criteria”, there is no equivalent “Time of decision” criterion.
The assertion was that under the regulatory scheme it appeared that an application for a police check was sufficient and it was not necessary for an actual police check to be undertaken, nor the application even processed. Mr Karp questioned the rationale of such a legislative scheme and submitted that the answer was “elusive”.
The answer, as submitted by Mr Smith, does not require any grappling with wisps of regulatory policy. It is plainly to be found in cl.487.228 (a) (a “time of decision” criterion). The requirement there is that, amongst other things, the applicant must satisfy public interest criterion 4001 as set out at Pt.1 of Sch.4 to the Regulations. That is, that the applicant “passes the character test”. Sub-sections 501(6)(a) and (aa) of the Act, dealing with the “character test”, make plain that a person fails that character test if they have a “substantial criminal record” as defined in s.501(7) of the Act.
I accept the Minister’s submission that a police check is clearly relevant to cl.487.228(a). This is confirmed when regard is had to the police certificate ultimately submitted by the applicant’s representative to the Minister’s department (CB 66). The argument that this “public interest” criterion “goes outside” the information provided by the AFP check, and that there is “no direct link” between the two, must be rejected in light of, in particular, s.501 of the Act.
In submissions, Mr Karp also submitted, with reference to Shahi v Minister for Immigration & Citizenship [2011] HCA 52 (“Shahi”), that the particular construction and meaning of cl.487.216 contended for by the Minister (and now accepted by this Court) is a triumph of form over substance and would result in a capricious and unjust operation of this requirement.
Two matters need to be noted about Shahi for current purposes. They arise from that part of that case relied on now by Mr Karp (at [31] of Shahi per French CJ, Gummow, Hayne and Bell JJ):
“There is, as already noted, evident textual awkwardness in reading the requirement that an applicant continue to meet a single criterion as applying to only one of the several requirements that make up that criterion, and especially is that so when the temporal element of the relevant requirement is expressed as ‘continues to be’. But more than that, there is evident scope for capricious and unjust operation of the requirement in circumstances where its engagement depends upon the occurrence of a relevant factual change which, in the case of a person attaining the age of 18 years, depends wholly upon how promptly the application for a visa is determined. Why should such a construction of the provisions be adopted?”
[Emphasis added.]
First, the reasoning and conclusion of the majority in that case, in part, arose from the “evident textual awkwardness” relevant to the circumstances of that case, which are not present in the current case.
Second, the “scope for capricious and unjust obligation” (as was also made clear in Shahi at [38]) where the Court found that the Minister’s construction would result in “an absurd result” or a result contrary to the purposes of the provision arose in circumstances where the relevant outcome depended on how promptly the application for a visa was determined (see at [31] of Shahi).
That is, that the issue in that case was whether a person in Australia under the age of eighteen at the time of proposing (“sponsoring”) the immigration entry of his mother and other relatives, thus making his mother a “member of his immediate family” because, in part, he was under the age of eighteen, would mean that his mother was not such a “member” after he turned eighteen. Plainly, any “delay” by the Minister in processing the visa application was the context within which the outcome was described as capricious and unjust.
In the current case, I agree with Mr Smith that any perceived “unfairness” does not arise from the text of the regulation itself, or the context in which it appears. There is no unfairness in reading the criteria such as to require that evidence of an application for a police check be provided at the time of the making of the visa application.
In the current case, if it is to be said that the outcome is unfair because the applicant had appropriately applied for a police check, and indeed subsequently obtained one, then that is a matter either of the applicant’s doing (after all, he signed the application for the visa with the “incorrect” answer, including in circumstances where he asserts to have “competent” English (CB 12.1)), or of his representative (the migration agent who assisted him, “Amit Baijal” of “Visainfo”(CB 5)).
Whether there was a simple mistake by the migration agent, negligence on his part, or a failure of communication between him and the applicant, is not for this Court to determine. The relevant authority for such matters is the Office of Migration Agents Registration Authority (“the OMARA”).
What is clear however is that this case does not present the type of “unjustness” or “unfairness” said by the High Court to arise from a particular construction of the Regulations. Absent that connection, this argument does not assist in supporting the meaning which the applicant seeks to ascribe to cl.487.216.
Conclusion
The applicant has had the benefit of legal assistance in putting the sole ground of the application before the Court. The choice as to how his case was constructed and argued is a matter for the applicant and those advisers. For the Court, the sole ground of the application is not made out. The application should be dismissed. I will make an order accordingly.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 15 June 2012
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