Argente v Minister for Immigration - [2004] FMCA 252

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ARGENTE v MINISTER FOR IMMIGRATION

[2004] FMCA 252

MIGRATION – Application for Skilled Australian Sponsored Overseas Student Visa – application required to be accompanied by evidence of police check and relationship to sponsor – evidence not supplied at time of application – later supplied evidence does not comply with regulation – police check must be done in 12 months before application – police check done after date of application does not comply with regulations – no unreasonableness – no unfairness – no breach of natural justice.

Migration Act 1958, ss.45, 46, 46(1)(b), 46(2), 47, 47(3)
Migration Regulations 1994, reg.2.07

Ibrahim v Minister for Immigration and Multicultural Affairs [2002] FCA 1279
VLAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1620

Applicant:

RONNIEL ROMERO ARGENTE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 669 of 2002

Delivered on:

30 April 2004

Delivered at:

Melbourne

Hearing date:

6 September 2002

Judgment of:

Phipps FM

REPRESENTATION

Counsel for the Applicant:

Mr Porceddu

Solicitors for the Applicant:

Frank Sabelberg

Counsel for the Respondent:

Mr Horan

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application is dismissed.
That the Applicant pay the Respondents costs fixed at $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 669 of 2002

RONNIEL ROMERO ARGENTE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a Filipino national who entered Australia on 7 June 1999 on a subclass 560 student visa. This visa permitted him to remain in Australia until 30 July 2001. On 4 November 2001 the applicant was granted a class UQ temporary permit valid until 16 January 2002. On 8 January 2002 the applicant lodged an application for a visa class DE Skilled Australian Sponsored Overseas Student. The proposed sponsor was the applicant’s aunt.
By letter dated 11 February 2002 the respondent’s delegate informed the applicant that the application was invalid. Two reasons were given. The application was not accompanied by evidence that during the 12 months immediately before the day on which the application was made the Australian Federal Police had completed a check of criminal records in relation to the applicant. The application was not accompanied by adequate evidence of the relationship between the applicant and the sponsor. The letter said that all necessary birth certificates and marriage certificates to establish the relationship needed to be provided.
On 3 February 2002 the applicant provided a police certificate dated

18 January 2002. On 18 February 2002 the applicant's solicitor wrote advising, amongst other things, that it was not possible to submit a birth certificate of the applicant's mother as birth certificates were destroyed during the Japanese occupation of the Philippines during World War II. The letter enclosed a copy of a certification from the Bureau of Records, Manila that birth records for Bataan for the year 1940 were not available.
Section 45 of the Migration Act 1958 provides that a non-citizen who wants a visa must apply for a visa of a particular class. Section 46 sets out what constitutes a valid visa application, including the requirement to comply with regulations. Regulation 2.07 of the Migration Regulations 1994 provides that for the purposes of ss.45 and 46 required matters for a particular class of visa are set out in the relevant part of Schedule 1. The relevant part of Schedule 1 for a class DE visa, the visa for which the applicant applied, is item 1128 BA.
The provisions of item 1128 BA said not to be satisfied are 1128 BA (3)(c)(ii) and (l)(iii)(D). They provide that:
(3)Other;
(c)the application must be accompanied by satisfactory evidence that
(ii)for an applicant who is at least 16 years old — during the 12 months immediately before the day when the application is made, the Australian Federal Police completed a check of criminal records in relation to the applicant.
(l)Application must be accompanied by satisfactory evidence that the sponsor
(iii)is a person in respect of whom the applicant seeking to meet the primary criteria has one of the following relationships:
(D)a nephew or niece, an adoptive nephew or niece or a step-nephew or step-niece;
By sub-s.46(1)(b) of the Migration Act an application for a visa is valid if, and only if:
it satisfies the criteria and requirements prescribed under this section.
By sub-s.46(2) an application for a visa is valid if;
a)it is an application for a visa of a class prescribed for the purposes of this subsection; and
b)under the regulations, the application is taken to have been validly made.
The delegate refused to consider the application because the delegate considered it was not valid and therefore s.47 Migration Act applied. That section provides:
(1) The Minister is to consider a valid application for a visa.
(2)The requirement to consider an application for a visa continues until:
(a)the application is withdrawn; or
(b)the Minister grants or refuses to grant the visa; or
(c)the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3)To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4)To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.
The argument for the respondent is that the delegate correctly refused to consider the application because it was not valid. Sub-section 47(3) applied. It was not valid because satisfactory evidence of a police check and of the relationship to the sponsor did not accompany the application.
It was submitted on behalf of the applicant that he was in an impossible position. To apply for a class DE visa he had to be the holder of one of certain specified visas, which included the class UQ temporary permit which he held. That was granted on 4 November 2001 and was valid until 16 January 2002. It was not of a type which could be extended. He could not apply for a class DE visa once his class UQ temporary permit had expired. He was not eligible for any other of the visas which would qualify him to apply for a class DE visa. He had to apply before 16 January 2002. He had applied for a police certificate prior to that date but had not received it. He could not obtain a birth certificate for his mother because it did not exist.
Unreasonableness, natural justice and jurisdictional error were argued. Unfortunately, if there was unreasonableness or unfairness in the situation it does not affect the decision the delegate made and was compelled to make.
The application had to be accompanied by satisfactory evidence that during the 12 months immediately before the date when the application was made the Australian Federal Police had completed a police check of police records in relation to the applicant. It was not accompanied by any evidence of any police check. The police certificate supplied subsequently could not satisfy the requirement that it be done during the 12 months immediately before the date when the application was made. It was done subsequent to the date of the application.
Even if the requirement that the application be "accompanied" could be satisfied by supplying the necessary evidence after the date the application was made, the requirement for a police check was not satisfied and could never be satisfied. It had to be a police check completed during the 12 months immediately before the date when the application was made. Therefore for that reason alone the application was not a valid one and s.47 required that it not be considered.
The situation may be one where form prevails over substance. Evidence of a police check conducted 364 days prior to the date of the application would satisfy the requirement. An applicant might have committed and been convicted of serious criminal offences during the following 363 days yet the police check requirement would be satisfied. On the other hand, the applicant produced evidence of a police check which showed he had no criminal convictions at all, up to the date of the application and beyond. Unfortunately, while what might be thought to be the substance the requirement had been satisfied, the requirement is specific and unambiguous. The police check must be completed during the 12 months immediately before the date when the application is made. The result may be a triumph of form over substance (Ibrahim v Minister for Immigration and Multicultural Affairs [2002] FCA 1279, Wilcox J), but if the item in the schedule to the regulations has a clear and unambiguous requirement which must be satisfied, it must be satisfied.
The position with evidence that the sponsor was the applicant's aunt is the same. At the time the application was lodged no evidence was provided other than the statement on the application and the accompanying sponsorship form. Given that there was no evidence the requirement for satisfactory evidence cannot have been met. The position is not one where the court might have to make its own decision as a matter of fact whether the evidence provided was satisfactory as was done with a medical report by Finkelstein J in VLAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1620. In this case the delegate of the Minister had refused a visa which required a medical report certifying as to particular matters. The delegate had decided that the medical report did not contain the necessary certification. His Honour concluded that the court could decide whether the report did contain the necessary certification as a disputed matter of fact between the parties. He decided that it did and ordered that a delegate of the Minister reconsider the application.
There is an argument that evidence of the relationship of aunt and nephew was supplied subsequently. I consider that the meaning of the requirement is clear. The ordinary meaning of accompany is "go with". There is no reason why the ordinary meaning should not apply. There are strong indications that it should. If required documents could be submitted later than the application itself it would mean that it was possible for an invalid application to be converted into a valid application. Sub-section 47(3) says that the Minister is not to consider an application that is not a valid application. The intention of the legislation is that applications are to be made with all necessary accompanying documents. An application which is not, is to be treated as if it is not an application. To allow defects to be remedied at a later stage is contrary to this.
The form of application which was prescribed by the regulations contained a statement that the applicant may be asked for further documents at a later stage. It was argued this was a representation that necessary documents could be lodged at a later stage. I do not consider that a statement contained within the form, even a form prescribed by the regulations, can override the clear meaning of the legislation and regulations. Nor do I consider that the statement about further documents is a representation that any document required could be lodged at a later stage or that documents which the regulations required to be lodged with the application could be lodged at a later stage. The statement does no more than alert the reader that there may be more documents required in addition to those which had to be provided with the application.
The delegate of the Minister had no choice but to refuse to consider the application. There is no basis for criticising the decision. The application must be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: R. Campbell

Date: 30 April 2004