Lama v Minister for Immigration, Citizenship and Multicultural Affairs

[2025] HCATrans 11

[2025] HCATrans 011

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P36 of 2024

B e t w e e n -

ASHISH LAMA

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 21 FEBRUARY 2025, AT 11.25 AM

Copyright in the High Court of Australia

HER HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MS S.L. FRANKEL appears for the plaintiff.  (instructed by Estrin Saul Lawyers)

MS C.M.R. ERNST appears for the defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Ms Frankel.

MS FRANKEL:   Yes, your Honour.  I wanted to start by, well, I suppose just summarising where we see the difference between the parties on this matter.  It is a statutory interpretation issue in relation to what regulation 2.03AA of the regulations requires of an applicant and allows the Minister or his delegate to ask of an applicant.  The regulation in question gives the Minister the power to request from an applicant:

a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history.

That, however described, I believe, is a point of contention between me and my learned friend.  We would say that those words, however described, attach to the – they exist to widen which documents can be provided or to satisfy this regulation, rather than to narrow which documents can be provided.

We say that the plain meaning of those words is that they do not allow for a delegate to request a specific version of the document or a specific type of the document, but rather to request a statement from a country, provided by an appropriate authority, which provides evidence about whether or not someone has a criminal history.  In that case, if your Honour is looking on that interpretation, that means that the document which the applicant provided did indeed satisfy that requirement to provide documents.

This was not considered by the delegate.  The delegate simply appears to have looked at the heading and not engaged in any kind of act of intellectual process and simply looked at the heading, said, this heading does not match the heading of what I asked, and refused the application accordingly.  There has been, in the written submissions and the authorities, a fair amount of back and forth about the nature of what is included in an Australian Federal Police clearance and different types of Australian Federal Police clearances.  We say this is relevant, but it goes to materiality more so than anything else.

HER HONOUR:   Is that right?  I mean, I think one of the things that I would like you to address is what does “criminal history” mean?  Because if criminal history includes spent convictions, for example, then – as I understand the argument that is put against you – the form that was identified as being the one that your client might use would have, at least in some jurisdictions, picked up spent convictions – probably not all of those jurisdictions – whereas the form that your client actually provided did not permit exceptions under those spent convictions legislations to enable it to have been provided.

MS FRANKEL:   Your Honour, to address that point, unfortunately I think the written submissions are not as helpful on that point of what that document could have contained as they could be, because it actually – when one looks at – what we have essentially been arguing about in the written submissions, and what I believe my friend intends to take you to – looking at the authorities that they have provided – is the exemptions to providing information directly to another person.  So, the Australian Federal Police or the State police’s ability to provide information directly to, say, the Department of Home Affairs or a foreign government.  That is actually not what happens when one applies for a police clearance, though.

When one applies for a police clearance, one is requesting from the Australian Federal Police and from the State police departments one’s own criminal history.  So, in that case, it is less about exemptions to who can be provided what and more about whether a person can be provided spent convictions by a consent or whether spent convictions are able to be provided directly to the person to whom they relate, which I can take your Honour to the parts of the various State provisions which allow for that.  That is actually ‑ ‑ ‑

HER HONOUR:   Let us just take the Crimes Act (Cth), for example.

MS FRANKEL:   Yes, your Honour.

HER HONOUR:   It provides an exemption for the purposes of making a disclosure in relation to people who are making a decision under the Migration Act.

MS FRANKEL:   Yes, your Honour.

HER HONOUR:   And does not the form that was suggested, by its nature, tell the person who is receiving that kind of form that that is what has been permitted?

MS FRANKEL:   Yes, your Honour.

HER HONOUR:   That is, is it a distinction between a foreign government, an overseas country – which is what is the form that your client used – and a decision under the Migration Act?

MS FRANKEL:   Your Honour, the issue is that when someone applies for a police clearance, they are making a personal request for their own police history, their own criminal history, to be released to them.  They may then provide that onto another person.  So, it does make sense that there are exemptions for immigration purposes in the Commonwealth Act, in the States’ Acts, because that allows the Department of Home Affairs to take those spent convictions into account when making decisions, and it allows the Department of Home Affairs to request those spent convictions, which is absolutely necessary for it to perform its functions.

In relation to documents to be provided to a foreign government, I do not believe there is any suggestion that any of these laws are meant to have extraterritorial application, which means that foreign governments are not bound by those laws.  In that case, all that is required is for the applicant to be able to request their own criminal history, including spent convictions, and they then are making a decision themselves to provide that document to a foreign government which is not bound by Australian law and is then able to take those spent convictions into account.

HER HONOUR:   Can I just take you, then, please, to page 31 of Ms Mumford’s affidavit, which was filed by the respondent, which has attached to it, as I understand it, at least one form of the national police certificate.  That has a heading which says:

Overseas Visa – Supply to a Country Other than Australia –

Which indicates that your client applied for that kind of national police certificate, does it not?

MS FRANKEL:   Yes.

HER HONOUR:   And that is a different form of application by your client than would have been if they had applied for the other form, which was a form which, hence headed – and I am going to now omit to remind myself what it is called, but it is “Immigration/Citizenship – for supply to the Department of Home Affairs”.

MS FRANKEL:   It is certainly a different heading, your Honour.

HER HONOUR:   But is that not telling the Federal Police that I am seeking this certificate for particular purposes?

MS FRANKEL:   Yes, your Honour.  What we say about that is that if the delegate had properly considered the document, then they may have come to the conclusion that this document provided the same information for the purposes of working out whether our client had a criminal history and whether he met public interest criteria in 4001.

HER HONOUR:   But is that not the problem, because do you not then need to go to the relevant legislation in each of the States and Territories to work out whether or not the exemptions for the provision of this information about spent convictions is the same for both immigration purposes within Australia and overseas name checks for overseas countries?

MS FRANKEL:   Your Honour, to a certain extent, yes, but what one is looking for when making that decision is really what information can be provided to an applicant with their consent and directly to them, because that is what is happening in this case.  That applicant is then choosing to provide that information to somebody else.

HER HONOUR:   That is right, but that does not answer the question, does it?  The question is, is there a distinction between the information available to be provided by consent by your client by the reason of the application itself – the form – between overseas countries and for immigration purposes.

MS FRANKEL:   I do not believe so, your Honour.  There is nothing in any of the State laws that talks about what information can be provided directly to a person in order for them to provide it for another purpose.  It is directed to direct provision by the Australian Federal Police, or any other record holder, to another person.

So, in some circumstances it is possible, due to the exemptions, for the police to provide directly, to Home Affairs, information about somebody’s spent convictions, but that is not relevant to this matter because this matter did not concern Home Affairs directly getting that information.  If it had, then we might not be here and my client might have been granted his visa.  What happened in this case is that he directly requested, himself, his record of criminal history and then he provided that to the Department of Home Affairs.

HER HONOUR:   The problem about that – and this is where I am just not quite clear – is when he directly requested it himself, he in effect narrowed the inquiry by the reason of the form he used.

MS FRANKEL:   He did, but if your Honour – in my affidavit, filed on 13 December, dated the 12th, I have provided a copy of the application form, which is the paper application form but the online one is substantially the same, which shows what is to be provided for different purposes of check.

HER HONOUR:   Yes.

MS FRANKEL:   So, there are two relevant pages.  The first is page 6 of the affidavit, page 3 of the form, which shows that for immigration citizenship purposes and for overseas visa purposes, what will be released is all Commonwealth offences and other State and Territory offences as legislation permits, and that is distinct from some of the other headings, some of the other types of check, which only release unspent convictions, et cetera.

HER HONOUR:   Well, unspent offences, but what it is telling you is there are two purposes because you have the Commonwealth purpose at the top of the table.  I mean, the way I understand your argument is that I am to read what is against codes 33 and 35 as giving rise to the same legal consequence.

MS FRANKEL:   Not precisely.  I suppose what my point is, is that what this tells an applicant is that they are consenting to the release – when they apply, and on the next page it has a consent section, what they are consenting to is for all possible – all possible – criminal offences, including spent convictions where appropriate, where allowed, they are consenting for all of that to be provided to them.

The reason that differs per purpose is because some bodies in Australia are prevented from considering spent convictions by this legislation.  Therefore, the Australian Federal Police is not going to release those spent convictions.  The applicant is not consenting to those spent convictions being released.  They are only going to release the convictions which are able to be taken into account by the decision‑maker, for whatever purpose.  So, on the next page it has their consent, and – let me just find ‑ ‑ ‑

HER HONOUR:   It is on page 7.

MS FRANKEL:   Yes, so there is a line there that says:

I consent to the AFP and any other Australian police force extracting details of any convictions, findings of guilt or pending court proceedings relating to me, including in relation to any traffic offence, and providing that information to me or to the Employer/Organisation named in Section 6.

So, those two parts together mean that a person who is applying for a police clearance is consenting to that information being disclosed, to the extent that whoever is receiving that information is able to consider it.

What that means, combined with the different State legislative provisions, is that you are able to consent to your spent convictions being released, a foreign government is legally able to take those into account because they are not bound by Australian law, and, therefore – well, we do not actually have any direct evidence on what the actual practice of the Australian Federal Police is, but I believe it is really a materiality point.  It is certainly plausible that what is released is a person’s entire criminal history, including spent convictions, in either case.

HER HONOUR:   Is there anything else you want to add to the submission, Ms Frankel?  I have read your very helpful written submissions.

MS FRANKEL:   Simply that our case is that it is essentially a materiality point, that the error of failing to consider the document is apparent on the face of it, as the delegate did not consider anything beyond the heading of the document, and that, therefore, it is a matter of materiality whether a different outcome should potentially have happened.  Whether it is more than fanciful that there could have been a different outcome had the delegate actually engaged in an intellectual process with the document, we say that it absolutely could have.

Australian Federal Police clearances issued for these particular purposes, not necessarily all purposes – if the plaintiff had applied for a police clearance for a different purpose, again, we may not be here because it may be that that was a partial disclosure and not a full disclosure, but in this case this was a full disclosure of his spent convictions because that is something which a foreign government can take into account and he is able to consent to those convictions being disclosed to him to then send on to a foreign government.  I believe that is all, your Honour.

HER HONOUR:   Thank you very much.  Ms Ernst.

MS ERNST:   Thank you, your Honour.  I propose to answer my friend’s case at two levels.  The first is that, as a matter of construction, regulation 2.03AA entitles a delegate to request a particular clearance, and provided that the request is properly characterised as a request under that regulation, the applicant is required to provide a clearance of that kind.  The second alternative argument I wish to advance relates to what my friend has incorrectly characterised as the materiality point, which is whether the applicant in substance responded to the request of the delegate, and our case is that, of course, he did not.

Starting with the first, your Honour.  If I could turn to the text of regulation 2.03AA, which is in tab 4 of my bundle of authorities, page 28 of the bundle, your Honour will see first an indication of the purpose of that regulation in subregulation (1), which is that it applies where public interest criteria 4001, concerning character assessments, or 4002, concerning security assessments, apply.  Then, turning to subregulation (2), your Honour will see the phrase “documents or information” is repeated.  That is, the Minister is empowered to make a request for documents or information, and then the person is required to provide the documents or information.

In my submission, those documents or information must be the same documents or information that are requested by the Minister or the Minister’s delegate appointed under regulation 1.16.  That is the premise, your Honour, of my submission, that, provided that the request is for a statement as described in paragraph (a), the answer must be provided in the form that is requested.  That is, provided that it is a statement from an appropriate authority that provides evidence about whether or not a person has a criminal history, the applicant is required to provide the statement requested.

That has important administrative implications, given that we are dealing here with an exercise typically conducted by a delegate.  That, in my submission, is a sufficient answer to the plaintiff’s case, because there is no contest that the request that the check provided was not the check requested, but I do also, your Honour, have an answer to the second aspect of the plaintiff’s case, which is that in substance the response was a response to the request for information.

As your Honour has elucidated in your exchange with my friend, the terms of the request made by the plaintiff in this case must be read as constrained by the description in the form that was annexed to Ms Frankel’s second affidavit.  That is, the affidavit of 12 December.  Specifically, one must read the request as confined to conferring consent to the release of records that State or Territory law permits be released for the particular purposes described.

So, if your Honour has the request form on page 6 of Ms Frankel’s affidavit, the second column of that form, against codes 33 and 35, reveals that the requests are for the purposes stated in those forms.  So, code 33 is confined, as your Honour noted, to an immigration or citizenship purpose:

for Supply to the Department of Home Affairs.

The question for your Honour here is a factual one, in the sense that your Honour has to find what the inference is to be drawn as to the nature of the consent that the applicant would have provided by signing this form.  In my submission, the inference is that he was consenting to a clearance that covered such offences as could be disclosed to the Department of Home Affairs, provided code 33, whereas in this circumstance, given that he requested a code 35 form, the only consent that he was providing was consent for release of such offences as could be disclosed for the purposes of an overseas visa.

As your Honour observed, having regard to the aide-mémoire that we supplied the Court with recently, there are at least four jurisdictions in Australia that we have identified in which there is a specific exception for release to the Department of Home Affairs or immigration, or immigration and citizenship checks, and there is no equivalent exemption for release to foreign governments for the purpose of such checks.

HER HONOUR:   Just so I am clear, that is the Commonwealth is one of them?  Under the Crimes Act.

MS ERNST:   Yes, the Crimes Act does contain an exception, but the operation of the Crimes Act is a little bit different, your Honour, from these State Acts.  So, if your Honour goes to the Crimes Act, section 85ZV provides that a person is not required to disclose a conviction.  It does not actually impose a prohibition on an agency from disclosing the conviction.

Relatedly, then when your Honour turns to the specific exclusions, including the exclusion for immigration purposes, the exclusion is expressed such that Division 3 does not apply.  So, the effect of the Crimes Act is that a person is required to disclose a spent conviction, but it does not – because it does not prohibit the disclosure by an authority – provide a defence to an offence of that kind.  The prohibitions are instead in the State legislation.

HER HONOUR:   And so the position is in – just so I am clear about this, because I went through the aide-mémoire, the Australian Capital Territory has an exemption for both?

MS ERNST:   No, only in very narrow circumstances which I expect will not, in practical terms, arise.  But if the immigration or citizenship check were to be conducted by the police service of a foreign country, then the Australian Capital Territory law will accommodate that.  I expect that is not the case, your Honour, but for completeness I cannot exclude that possibility.

HER HONOUR:   Then, Victoria, South Australia and Tasmania do not have an exemption for foreign governments?

MS ERNST:   No.

HER HONOUR:   Queensland appear to have an exemption for both.  Is that right?

MS ERNST:   No, the provisions – there is no exemption for either that we have identified.

HER HONOUR:   Yes.

MS ERNST:   And that applies to the other jurisdictions that do not appear in the table.

HER HONOUR:   So, that is New South Wales, Northern Territory and Western Australia.

MS ERNST:   Yes.

HER HONOUR:   Yes.  Anything else?

MS ERNST:   No.  Thank you, your Honour.

HER HONOUR:   Thank you.  Ms Frankel, anything in reply?

MS FRANKEL:   Yes, your Honour.  Just quickly ‑ ‑ ‑

HER HONOUR:   There is no need to rush.

MS FRANKEL:   If I may address both points my learned friend brought up.  In terms of the interpretation of what regulation 2.03AA allows for, it may be helpful to look at the explanatory memorandum which was helpfully provided by the defendant.  Does your Honour wish me to take you to the sections, or is summarising them sufficient?

HER HONOUR:   Do you mean the explanatory statement?

MS FRANKEL:   The explanatory statement, yes.

HER HONOUR:   I have it in front of me.  This is pages 47 and following of the bundle?

MS FRANKEL:   Yes, your Honour.

HER HONOUR:   Yes.  Which bits do you rely upon?

MS FRANKEL:   There are two pages which describe the reason for including this regulation in the regulations.  The first is at page 57, which essentially describes that the issue that was corrected by including this regulation was that, before this regulation was included, there was no ability to set a time limit for providing information about a person’s ability to satisfy PIC 4001 and 4002.

HER HONOUR:   Where are you reading from, please?

MS FRANKEL:   This is the first paragraph on page 57.  It begins on page 56, but the important section is within that paragraph.

HER HONOUR:   Which bit do you rely upon?  Can you please identify for me the bit that you want me to ‑ ‑ ‑

MS FRANKEL:   Yes.  So, starting on the second line of that first paragraph on page 57.

HER HONOUR:   Yes.

MS FRANKEL:   It says:

Within the existing regulatory framework for PIC 4001 and PIC 4002, there is no ability for a section 65 delegate to set a time limit within which a visa applicant is to provide a statement (however described) from an appropriate authority that provides evidence about whether or not the person has a criminal record or a completed form 80, to satisfy PIC 4001 and 4002, or to be able to refuse a visa application if the requested documentation or information is not provided within the specific timeframe.

It then goes on to talk about the issues that that creates – the administrative issues that that creates.  This shows that the reason for that regulation was not to allow the Minister to request very, very specific documents in this particular format, but merely to create the ability for time limit so that a visa could be refused within a reasonable amount of time.

This is made even more clear on page 65, which goes into more detail about what the change to the regulations entails.  On page 65, it lists the new wording to be included in the regulations.  Then, in paragraph 6, it just states that:

The Note following after subregulation 2.03AA(2) provides that a police force is an example of an appropriate authority –

It talks about the waver after that.  In the next paragraph, it just says:

The effect of the amendment in item [3] is to make it a criterion that a person who is required to satisfy public interest criteria 4001 or 4002 . . . is also required to provide a statement from an appropriate authority about criminal history and a completed approved form 80 if requested to do so.

In the next paragraph, the same wording is used:

The power to waive the requirement to provide a statement by an appropriate authority –

So, the wording of the explanatory statement is not concerned with adding in a power for the Minister to request a very specific form of a document.  Instead, the wording shows that the intention is to create a time limit for a person to provide evidence of their criminal history.

The way that this is summarised in the statement when it talks about it is “a statement from an appropriate authority”.  Those are the words which are important enough to be in the summary.  If the aim of this regulation was to create the ability for the Minister to describe a specific document and require the applicant to provide that specific document and no other document, that would be much more clear in the explanatory statement.  Those are our submissions in relation to that first point.

In relation to the second point, again we say this is not a matter of there needing to be an exclusion specifically for foreign governments.  This is because foreign governments are not bound by Australian law – except in certain very complicated scenarios, but not bound by this law – which means that all that is required for this information to be released to the applicant is the ability for the information to be released to the applicant.  There is no requirement on a foreign government to not request a spent conviction or not consider a spent conviction in the same way as there are for Australian authorities.

So, it is does not matter that there are no exemptions in the State legislation for foreign governments, because all that would do – if there was an exemption for a foreign government, that would allow police departments to directly provide information about spent convictions to foreign governments, which Australia has decided not to allow except for certain very specific situations, as my learned friend pointed out.  It does not have any impact on a foreign government’s ability to consider spent convictions or to request spent convictions, or an applicant’s ability to apply

to have spent convictions released to themselves personally and then do with that information what they want.

Also, just in terms of the practicalities of what a delegate – if the delegate had considered the document, what the delegate may have decided.  In this case, the only two States which are really relevant are New South Wales and Tasmania.  This is evident from the applicant’s application form for the graduate visa, which is contained in the affidavit of Centaine Mumford, which I can take your Honour to if you would like, but essentially it has an address history in it and that address history shows that the applicant has only lived in New South Wales and Tasmania.

So, those are really the two States which – if one is to put oneself in the shoes of a delegate, trying to make a decision about what information is contained on this police clearance, and is this enough to be satisfied about the person’s criminal history – are the relevant States, as those are the States where the applicant has resided, which is why we have provided the extracts of the Spent Convictions Acts, or equivalent Acts, for those two States specifically.

HER HONOUR:   And do you accept that both of those States treat the exemptions differently?

MS FRANKEL:   Yes, your Honour.  However, both of those States do explicitly allow for – the Tasmanian legislation only creates an offence when information is disclosed without the consent of that person, and the New South Wales Act, I believe, states that it is not an offence for the information to be disclosed directly to the person who is the subject of that information.

HER HONOUR:   Thank you.

MS FRANKEL:   Your Honour, unless your Honour has any further questions, those are our submissions in reply.

HER HONOUR:   Thank you.  I thank counsel for their submissions.  The Court will reserve its decision.  Adjourn the Court, please.

AT 11.59 AM THE MATTER WAS ADJOURNED