Gulati v Minister for Immigration
[2012] FMCA 491
•20 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GULATI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 491 |
| MIGRATION – MRT decision – skilled graduate temporary visa – visa application required to be ‘accompanied by evidence’ of application for an Australian Federal Police check – temporal connection between submission of evidence and date of visa application – applicants applied for AFP checks before visa application – ten months delay before submission of evidence – Tribunal found them ineligible for visas – no error of law identified – application dismissed. |
| Migration Act 1958 (Cth), ss.5(9), 338(2), 46(1)(b), 500(1), 501(6)(a) Migration Regulations 1994 (Cth), Sch.1, Sch.2 cll.485.215, 485.216, 485.217, 885.213, 885.214, 885.215, 485.322(a), Sch.4 item 4001 |
| Alam & Ors v Minister for Immigration & Anor [2010] FMCA 351 Bandi v Minister for Immigration & Anor [2010] FMCA 365 Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417, [2010] HCA 8 Ghori v Minister for Immigration & Anor [2010] FMCA 794 Gill v Minister for Immigration & Anor [2010] FMCA 587 Habib & Ors v Minister for Immigration & Anor [2010] FMCA 450 Mevada v Minister for Immigration & Anor [2010] FMCA 616 Minister for Immigration & Citizenship v Grant (2009) 180 FCR 179, [2009] FCA 1059 Nayeem v Minister for Immigration & Anor (2010) 241 FLR 208, [2010] FMCA 618 Parmar v Minister for Immigration & Anor [2010] FMCA 818 Re Portman Mining Ltd & Development Allowance Authority (1994) 36 ALD 357 Singh v Minister for Immigration & Anor (2011) 256 FLR 56, [2011] FMCA 982 Todhunter v Attorney‑General (Cth) (1994) 52 FCR 228 Todhunter v United States of America (1995) 57 FCR 70 Winkler v Director of Public Prosecutions (1990) 25 FCR 79 Zhou v Minister for Immigration & Anor [2011] FMCA 607 |
| First Applicant: | SACHAL GULATI |
| Second Applicant: | SWATI GULATI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2273 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 17 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2012 |
REPRESENTATION
| Counsel for the Applicants: | Mr N Dobbie |
| Solicitors for the Applicants: | Dobbie and Devine Immigration Lawyers |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicants pay the first respondent’s costs in the amount of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2273 of 2011
| SACHAL GULATI |
First Applicant
| SWATI GULATI |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is a ‘hard case’ where the Court must interpret complex criteria governing the grant of an on‑shore skilled graduate visa, and decide whether the applicants have foregone rights of residence in Australia because they unwittingly delayed the lodgement of relatively insignificant but necessary evidence. On the reasoning of the Migration Review Tribunal, this was the effect of their ten month delay in providing evidence that they had applied for an Australian Federal Police check before they lodged their visa application. They are now unable to correct this problem by lodging new visa applications, since that opportunity expired six months after the primary applicant had gained his qualifications by study in Australia.
Under Migration Regulations 1994 (Cth) Sch.2 cl.485.216:
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.
The present applicants, Mr and Mrs Gulati, wished to seek permanent residence in Australia, following Mr Gulati’s completion of a post graduate degree at the University of NSW in August 2008. They did not employ the help of a migration agent, but attempted to follow the detailed instructions of the first 10 pages of the Department’s form of application for provisional ‘skilled graduate’ visas, subclass 485. On page 4 of these instructions, they were told:
At the time you apply for this visa you must:
…
·have applied for a check of criminal records with the Australian Federal Police for you and all persons included in this application who are aged 16 or over.
They therefore each applied to the Australian Federal Police (“AFP”) for an ‘Immigration/Citizenship Police Certificate’ on or about 17 September 2008, and paid the required $32.73 fee from their cheque account on that date.
They then completed and signed the form of visa application on 20 September 2008, and forwarded it in hard copy to the Department of Immigration, which received it on 24 September 2008. Since there was nothing in the instructions telling them to include or forward evidence of their having applied to the AFP, they did not do so. They did attach other documents which they understood to be required at that time, including evidence of Mr Gulati’s academic qualifications and of his competency in the English language. As the Tribunal subsequently remarked, and I agree:
32.… The Tribunal considers it is unfortunate that this information, which an applicant is asked to read carefully before applying, does not convey more clearly the legislative requirement that the visa application must be accompanied by evidence that the applicants had applied for the AFP checks. …
Also unfortunate, is that the applicants did not perceive the significance of a reference to a ‘checklist’ on page 37 of the application form, immediately above their signature to the declaration that they had “read and understood the information supplied to me in this application”. It posed a question, which they answered:
Have you completed the visa specific checklist from the department’s website þ } Please complete the checklist
Yes o } Include it with your application
If they had taken this hint, and had tracked down a separate three page ‘Application Document Checklist’ on the internet, they would have found on page 3 a suggestion that this evidence should be submitted, since it includes in its list of ‘application documents’:
Evidence that all applicants aged 16 years or over have applied for an AFP National Police Check in the past 12 months.
See: AFP National Police Checks
On the date that their visa application was received, the applicants were sent an acknowledgement letter automatically generated by the ‘Adelaide Skilled Processing Centre’. The letter told them that “there will be a time lag before this case is allocated to a case officer”. It included an attachment concerning “providing further documents”, but neither party has tendered this document, and I assume that it said nothing pertinent about a need urgently to ensure that the evidence described in cl.485.216 had been forwarded to the Department.
In fact, on the day that the visa application was received by the Department, the AFP issued two certificates that “there are no Disclosable Court Outcomes recorded” against the names of the applicants. These certificates were received by the applicants at around that time, but unfortunately they did not forward them to the Department, but appear to have assumed that a case officer would request them to do so if this was necessary. There is no evidence whether the AFP information might have reached the Department by any other means.
On the evidence before me, the applicants received no communication from a case officer, before receiving an emailed “decision record on an application for migration to Australia” dated 24 July 2009. This quoted cl.485.216, and told them:
Your application was lodged on 24/09/2008. In order to meet the legislative requirements of Item 485.216 you must therefore, have provided evidence with your application that you had applied for an Australian Federal Police check prior to this date. There is no evidence before me to indicate that such an application has been made. I am therefore satisfied that you do not meet the requirements of Item 485.216.
FINDING – 485: In respect of this subclass I find:
As you do not meet the legislative requirements for a Subclass 485 visa as specified in subclause 485.216, I therefore refuse the grant of a Subclass 485 visa to you.
The applicants then consulted a migration agent. On 11 August 2009, the agent provided the delegate with copies of the two AFP certificates, pointing out that obviously they had been applied for before the date of the visa application. The agent unsuccessfully sought to persuade the delegate to reverse her decision, and then lodged an application for review by the Tribunal. In the course of the review proceedings, the applicants presented oral and documentary evidence from their bank records, verifying the date of their AFP applications, and explaining how they had been misled by the instructions on the application form.
The Tribunal made a decision on 29 September 2011, which affirmed the delegate’s decision. The Tribunal cited a judgment of Lloyd Jones FM in Gill v Minister for Immigration & Anor [2010] FMCA 587, which addressed a different visa criterion and which I shall discuss below. The Tribunal then said:
29.The Tribunal considers further that as cl.485.216 is specified as a time of application criterion, it must be satisfied as at the date on which the visa application is made, and not at a later date.
30.Thus, although the Tribunal now has evidence which satisfies it that the applicants did indeed apply for their AFP checks within the prescribed period prior to making the visa application, the Tribunal is not satisfied that the evidence establishes that at the time of application, the visa application was accompanied by evidence that they had applied for the AFP checks. The Tribunal indicated to the applicants at the hearing that it could not discern any information in the visa application or any document or other material provided with the visa application which indicated that they had applied for the AFP checks. The Tribunal finds that the applicants were not able to point to any material to indicate that they had provided the required evidence with the visa application. Their evidence focused on their understanding of what was required in relation to the AFP checks, namely, that they must have applied for the checks prior to lodging the visa application. As indicated above, the Tribunal accepts that they did so, however, as explained at the hearing, there is an additional requirement in the relevant criterion relating to evidence that applicants have applied for the AFP checks.
…
35.Having considered all the evidence, the Tribunal is not satisfied it that at the time of application, the application was accompanied by evidence that both applicants had applied for an AFP check during the 12 months immediately before the day when the application was made. The Tribunal accordingly finds that the first named applicant does not satisfy cl.485.216 and cl.487.216.
In essence, the application now before me contends that this reasoning reflects an incorrect interpretation of cl.485.216, because the criterion does not impose any temporal requirement as to the point of time at which evidence of a complying AFP application must be presented, so as to ‘accompany’ the visa application. The applicants submit that it is enough that such evidence should ‘accompany’ the visa application no later than the time when it reaches its decision‑making destination and is finally determined, either at the primary or review levels. On this interpretation, the regulation imposes a ‘time of application’ criterion only in the sense that it requires that the decision‑maker must at time of decision be satisfied, on evidence previously presented by an applicant, that an application had been made to the AFP before the date of lodgement of the visa application.
The Minister defends the Tribunal’s reasoning and decision on a construction of cl.485.216 which locates an added ‘time of application’ element in the words “accompanied by evidence that”. In effect, in his submission these words imply a proximate temporal nexus between the presentation of the evidence of an AFP application and the lodgement of the visa application. Counsel for the Minister did not suggest that these events were required to be simultaneous, in the sense that the evidence must be in the same envelope or electronic transmission or received on the same date. Nor did he commit himself to any other time period or other formulation of a proximity test. However, he submitted that in the present case the gap between the lodgement of the visa application and the presentation of the evidence of the AFP applications was such that in no sense of the word ‘accompanied’ could the evidence be regarded as having ‘accompanied’ the visa application.
Reference to dictionaries to detect the ordinary usage of the word ‘accompanied’ could, in my opinion, support both of the constructions urged upon me. This is pointed to in some judgments of the Federal Court to which I was referred, which have considered requirements that an extradition must be ‘accompanied’ by supportive material. The judgments all accept that the word was not to be read literally, by requiring the material to be received simultaneously with the request, and hold that it allows receipt over a subsequent period which may be tested against the purposes of extradition proceedings and the intent of the prescribed procedures.
In Winkler v Director of Public Prosecutions (1990) 25 FCR 79, Wilcox and O’Loughlin JJ said at 96:
… we have no difficulty with the proposition that the phrase “accompanied by” is sufficiently elastic to include all material submitted at about the time of the request and before the expiration of any relevant cut‑off date; for example, a date by which, in the absence of the documents, the fugitive must be set at liberty.
Burchett J at 119‑120 did not consider that the word “may be so loosely construed as to be satisfied by a document, received however late, as long as it arrives in time to be presented to the magistrate before he makes his decision whether or not to commit the fugitive to prison to await the warrant of the Attorney‑General for his extradition”. However, he accepted that it encompassed documents received “shortly” before or after the requests.
Addressing more detailed later extradition laws, Spender J in Todhunter v Attorney‑General (Cth) (1994) 52 FCR 228 at 239‑240 referred to dictionary meanings which had been cited by a magistrate:
I do not accept that “accompany”, when used in par 5 of the new Art XI is to be construed as if it meant “are supplied contemporaneously with”.
The Magistrate rejected the submission on behalf of Mr Todhunter that the word “accompany” in Art XI(5) means “to go with” or “to go together”. The Magistrate noted that “it was clear … that the documents in Exhibit 3 did not go with the extradition request on 30 December 1992”. He said:
“The dictionary meaning of ‘accompany’ is
‘Supplement (a thing with); go or to be put or be found with, escort, attend, (of thing), co‑exist with, characterise’.
The Australian Concise Oxford Dictionary Seventh Edition.
…
The first meaning subscribed to ‘accompany’ was ‘supplement’.
The verb ‘supplement’ means ‘make supplement to’.
The noun ‘supplement’ means:
‘Thing added to remedy deficiencies; part added to book et cetera with further information or to periodical for treatment of particular matter.’
The Australian Concise Oxford Dictionary Seventh Edition.
It is in this sense in my view that the word accompany is used in subparagraph (5).”
I agree.
However, Spender J at 243 said that the word in its context was not “one of unlimited flexibility and that it might also appropriately be subject to some limit”, but confined his conclusion to the circumstances of the case before him. On appeal, the Full Court found no error in his judgment, but accepted that a ‘temporal connection’ should exist, and emphasised the need to consider the structure of the extradition proceedings and the purposes of requiring the materials to ‘accompany’ the extradition request (see Todhunter v United States of America (1995) 57 FCR 70 at 83‑85).
These authorities were applied by Bulley J sitting in the Administrative Appeals Tribunal in relation to a requirement that documents accompany an application for registration of plant expenditure for income tax purposes (see Re Portman Mining Ltd & Development Allowance Authority (1994) 36 ALD 357). He rejected a submission that the material must be attached to or sent contemporaneously with the application, and found sufficient temporal and contextual links in the correspondence.
A focus in these cases upon the context and purpose of the words ‘accompanied by evidence of’ accords with the approach taken by the High Court in Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417, [2010] HCA 8 to a visa criterion of the present type. In that case, their Honours concluded that a criterion requiring that “the applicant has competent English” was directed at language competence as at time of decision, rather than at time of application, and that it was intended that applicants could rely upon evidence of successful IELTS tests undertaken after visa application. They reached this conclusion notwithstanding that the criterion appeared, as does the present cl.485.216, under a heading “to be satisfied at time of application”, rather than “to be satisfied at time of decision”. They contrasted an intention to be discerned from other criteria appearing under the same heading:
17.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.
Both counsel before me sought to gain strength from this observation, noting that cl.885.214 which was referred to by the High Court was in the same terms and context as the presently relevant cl.485.216, and that cl.885.215 was in the same terms as cl.485.217, which provides:
485.217The application is accompanied by evidence that the applicant and each person included in the application has made arrangements to undergo a medical examination for the purpose of the application.
Clearly, the High Court was not construing the equivalent of the present provision, nor focusing upon the presently debated words. However, in my opinion, it is relevant to note that their Honours appear to have thought that the words “application accompanied by evidence of” in the two contrasting criterion were indicative of a temporal nexus for the submission of the required evidence to the date of lodgement of the visa application, rather than to the date of decision. Their Honours do not appear to have given particular significance to the overt temporal nexus in cl.485.216, which is found in its reference to 12 months before visa application, since such an element is not found in the ‘evidence of arrangements for a medical examination’ criterion which they grouped with it. I therefore consider that the reasoning in Berenguel tends to support the Minister’s construction, rather than the applicants’ construction.
I was referred to no decisions of the Federal Court having a bearing on the present debate, but both sides attempted to draw support from judgments of various Federal Magistrates. I shall note these shortly, since, in my opinion, the present point has not been directly raised on indistinguishable facts, and remains undecided.
Lloyd‑Jones FM’s decision in Gill, which was cited by the Tribunal, concerned cl.855.215, which was in the same terms as is cl.485.217, i.e. requiring that an “application is accompanied by evidence” that the applicant had “made arrangements to undergo a medical examination for the purposes of the application”. The applicants had made such arrangements on 29 September 2008 for a medical examination to take place on 13 October 2008, both of these dates being subsequent to the lodgement of the visa application on 14 January 2008. His Honour applied an opinion of Jagot J in Minister for Immigration & Citizenship v Grant (2009) 180 FCR 179, [2009] FCA 1059 on a similar provision, and held at [22]:
22.Clause 885.215 imposes a substantive requirement, being that arrangements are in place to undergo a medical examination and the criterion is to ensure that when a decision is made, the decision maker will have before them, an up‑to‑date medical report. That purpose can only be achieved if cl.885.215 is understood to apply at the time of application. The criterion thus differs from that considered in Berenguel and the decision itself distinguishes the situation required in cl.885.213.
Contrary to the opinion of the present Tribunal, I do not consider that this reasoning addresses the present point. The point of debate in Gill was whether the reference to ‘making arrangements’ required the arrangements to be made before or after the visa application, and was not the timing of the presentation of evidence of the making of such arrangements. The debatable issue in Grant and Gill could not arise in relation to the present criterion, since its express language clearly indicates that the relevant substantive action of the visa applicant, i.e. applying to the AFP, was required to have occurred before visa application. On the chronology of the present matter, the applicants had clearly satisfied this element of the criterion.
The only judgment to which I was referred in which there is any specific attention to the presently debated words is the judgment of Turner FM in Mevada v Minister for Immigration & Anor [2010] FMCA 616. This concerned the same subclass as the present matter, but dealt with its criteria in relation to English language sufficiency. These criteria have generated a significant number of judgments in this Court, both before and after Berenguel.
Under the terms of cl.485.215 as applicable to visa applications made before 27 October 2008:
485.215Either:
(a) the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, and the applicant has vocational English; or
(b) the applicant has competent English; or
(c) the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing for this paragraph.
This form of cl.485.215 used indistinguishable language and context to that which was addressed in Berenguel, except for the addition of the alternative mode of satisfaction under para.(c). In Habib & Ors v Minister for Immigration & Anor [2010] FMCA 450 I held that Berenguel applied in relation to para.(b), thereby allowing a visa applicant to present evidence of a successful IELTS test undertaken at any time prior to decision, even if it had not been arranged prior to visa application. My judgment was followed by my colleagues with varying degrees of enthusiasm and attribution, including by Turner FM in Mevada and Cameron FM in Nayeem v Minister for Immigration & Anor (2010) 241 FLR 208, [2010] FMCA 618. Ultimately, the Minister withdrew his appeal from Habib, and, as I observed in Zhou v Minister for Immigration & Anor [2011] FMCA 607 at [5], “the alternative pathway for establishing English competency provided under criteria 485.215(c) and 485.222 became redundant in most cases, since it was usually immaterial whether the application was “accompanied by evidence” showing arrangements for a future language test”. Although in Habib (supra) at [20]‑[25] I discussed the implications of para.(c) for the construction of para.(b), as did Cameron FM in Nayeem at [36]‑[38], I do not consider that our discussion addressed the debate about the words “is accompanied by evidence” which has arisen in the present case.
The subsequent litigation concerning criterion 485.215 did not need closely to construe the language of para.(c), but became focused upon the reasonableness of Tribunal decisions which refused further adjournments to allow additional efforts to obtain successful IELTS results during the pendency of the administrative proceedings (see, for example my judgments in Alam & Ors v Minister for Immigration & Anor [2010] FMCA 351, Bandi v Minister for Immigration & Anor [2010] FMCA 365, Parmar v Minister for Immigration & Anor [2010] FMCA 818, and Zhou (supra), and the judgment of Barnes FM in Ghori v Minister for Immigration & Anor [2010] FMCA 794). In a number of these cases, I observed that primary decision‑makers had given a considerable degree of latitude to the words “accompanied by evidence” of arrangements for the purposes of cl.485.215(c), and that at the primary and review levels it had been accepted that visa applicants could present evidence of IELTS testing arrangements made before visa application long after the date of visa application. However, as some of the above judgments explained, I and most of my colleagues found it unnecessary to consider the legal correctness of this practice.
Turner FM is an exception to this course in Mevada, perhaps because at that time Habib was under appeal. In Mevada, an on‑line visa application was lodged on 26 March 2008, an IELTS test for 6 September 2008 was arranged on 1 April 2008, and evidence of this was given to the Department on 3 April 2008. Turner FM accepted the submission of the applicant which invoked the above extradition cases, and argued that the evidence provided to the Department eight days after the visa application was submitted at a date sufficiently proximate to the date of lodgement to amount to ‘accompanying’ the application, because it was “about the time of the application, having regard to the fact that the decision was not made for a further 12 months” (see [38] and [65]). However, Turner FM also accepted the submission of the Minister that the arrangements for the test which were notified to the Department did not satisfy para.(c), because the arrangements had not been made before the visa application, on reasoning consistent with Gill and Grant (see [58]). In effect, therefore, his Honour remitted the matter because the Tribunal had materially erred in its application of para.485.215(b), but not para.(c).
The presently relevant part of the judgment in Mevada is, therefore, not part of the ratio decidendi in that case, as well as being distinguishable because it addressed a different criterion. The criterion addressed in Mevada was one which concerned English language sufficiency, which was peculiarly a matter of relevance only at the date of decision, as was pointed out in Berenguel. As I shall explain, the present criterion concerning AFP character checks may have a different character. However, I consider that Turner FM’s reasoning should be treated with respect, and, as will appear, I do not consider that it is inconsistent with my interpretation of the same words “application is accompanied by evidence” in the present criterion 485.216.
The only judgment which has concerned criterion 485.216, to which I was taken, is that of Emmett FM in Singh v Minister for Immigration & Anor (2011) 256 FLR 56, [2011] FMCA 982. However, I consider that it is not relevant to the present debate. In that case, the applicant lodged his visa application on 17 June 2008, but did not apply for an AFP check until 9 July 2008. Her Honour decided the matter based on judicial comity with the reasoning in Gill (supra) and, perhaps more obviously, because the AFP application was “clearly not within the 12 months immediately before the day when the application was made” (see [52]‑[54]). I would not read anything in her Honour’s judgment as addressing the present debate as to what might be an acceptable delay before the presentation to the Department of Immigration of evidence of an AFP application, if the AFP application had been made within the designated time period.
I must therefore turn to consider the particular context in which the words “the application is accompanied by evidence that” appear in cl.485.216, unaided by authority directly on the point.
It is significant, in my opinion, that the requirement for accompanying evidence does not appear in a condition attaching to the validity of the visa application itself, as is sometimes found in conditions of validity made under s.46(1)(b) of the Migration Act 1958 (Cth) and Sch.1 to the Migration Regulations. The presentation of evidence of an AFP application is therefore not intended to be the basis for refusing to accept or commence to process a visa application upon presentation. The required evidence becomes something relevant only to the subsequent administrative examination and determination of the visa application. There is, therefore, no reason to think that an immediate or physical conjunction of application and evidence is intended to be required.
Moreover, as the applicants’ agent pointed out to the Department, the administrative processes of the AFP might not readily produce ‘evidence’ of an application for a police check provided to the visa applicant before the issue of a clear certificate. The applicants might be able to provide their banking records of the payment of the AFP fee, but these might not be available in a probative form, and might not be immediately available. These difficulties arise because the criterion is concerned with the date of the making of an AFP application, and not with its outcome, and because the criterion allows the possibility that the AFP application could be made at any time before the lodgement of the visa application. These features of the drafting of cl.485.216 point to an intention not to impose a strict and immediate nexus between the visa application and the presentation of evidence of the AFP application.
The above considerations suggest to me that cl.485.216 intends that a visa applicant could present the relevant evidence of an AFP application within any period subsequent to visa application which would be reasonably allowed for the obtaining and presentation of the necessary evidence. In my opinion, in this context it does not stretch the ordinary language of ‘accompanied by’ if it allows the provision of evidence within a reasonable time for the purposes of its subsequent administrative processing.
However, the context of the words and the purposes of the criterion do not suggest to me that there was an intention to allow that time to extend to the whole period before the visa application was ‘finally determined’ within the meaning of s.5(9) of the Migration Act, as was submitted by the applicants’ counsel.
The very presence of the words requiring evidence ‘to accompany’ the visa application indicates that the criterion is more than a requirement that at time of decision the applicant must satisfy the decision‑maker that he or she applied for AFP checks before visa application. If this is all that the criterion requires, then these words have been unnecessarily included in the regulation. Their presence suggest that this element in the criterion is itself, in a sense, also a ‘time of application’ criterion, although one which might not require strict application as at the date of application.
The purposes of the criterion also suggest that there is an administrative purpose in requiring evidence of an AFP application to be lodged with, or reasonably soon after, the visa application. Clearly, it is intended to ensure that the procedures of the AFP for conducting a check of their records in relation to criminal convictions should be initiated no later than the date of visa application. I consider that the added words also show that it is intended that this should be apparent from the visa application file, while it is being processed by the primary decision‑makers.
Although neither this nor any other criterion for this subclass of visa requires any particular document or outcome for the AFP application to be presented by a visa applicant, the resultant AFP advice will clearly serve the purposes of the Minister addressing, at the primary level, whether the applicant will pass ‘the character test’, which is required at time of decision under ‘public interest criteria 4001’ (see cl.485.322(a) and Sch.4 item 4001). As defined in s.501(6)(a), the usual reason for failing this test is that an applicant “has a substantial criminal record” involving a sentence of imprisonment of 12 months or more. Under the scheme of the Act, if the Minister refuses the visa application for this reason, then the applicant may seek review only from the Administrative Appeals Tribunal, and not the Migration Review Tribunal (see ss.338(2) and 500(1)). In this context, I consider it unlikely that the purposes of criterion 485.216 would be served by allowing visa applicants to defer presenting evidence of their AFP application for a lengthy period, whether before or after a primary decision had been made and the matter had moved to the Migration Review Tribunal. In my opinion, the scheme of this legislation envisages that from soon after the receipt of the visa application, the Department file will contain evidence that the AFP are searching their criminal conviction records, if not also the outcome of their searches. Moreover, it ensures that applicants are aware when making a visa application, that police records will be consulted by the Department for the purposes of a good character test.
I therefore do not accept the construction submitted by the applicant, and prefer the submissions of the Minister, notwithstanding that they have the effect of injecting a degree of uncertainty as to what might be an acceptable delay between visa application and provision of evidence of applying for an AFP check. That uncertainty is, however, in my opinion inherent in the language of ‘accompanied by’ when construed to have a degree of reasonable flexibility. In effect, this element in the criterion allows decision‑makers to consider fairly whether, in the particular circumstances of the applicant and the making of their visa application, the evidence of having made an AFP application may be regarded as ‘accompanying’ the visa application.
In the present case and on the above construction, I can find no error of law materially affecting the present Tribunal’s decision, considering the situation which was addressed by it, and its reasons for finding that the applicants’ evidence of AFP applications did not accompany the visa application.
Their evidence of AFP applications was clearly not presented with any degree of temporal proximity to the visa application. Nor was there any other linkage to the visa application, for example, by their foreshadowing to the Department the presentation of the required evidence. Rather, the applicants simply decided not to forward the certificates when they came to hand, and only tendered them when a delegate had announced a decision on the visa application ten months after it was made. The circumstances under which this delay occurred attract sympathy, but they did not, in my opinion, require the Tribunal to arrive at a different conclusion.
I consider that the Tribunal’s adverse conclusion was open to it on the evidence before it, and that its reasons did not reflect any material error of law in its appreciation of the legal effect of criterion 485.216.
The application for judicial review must, therefore, be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 20 June 2012
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