Panchal v Minister for Immigration
[2012] FMCA 562
•29 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PANCHAL v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 562 |
| MIGRATION – Visa – Skilled (Provisional) (Class VC) Visa – Review of decision of Migration Review Tribunal – whether jurisdictional error – whether Tribunal failed to apply the correct law – whether denial of natural justice – subclass 485 visa – criterion evidence of an application having been made for an Australian Federal Police check – whether criterion must be satisfied at time of application or may be satisfied at a later time. WORDS AND PHRASES – “Accompanied by evidence” – “evidence”. |
| Evidence Act 1995 (Cth), s.55 Migration Act 1958 (Cth), ss.45, 46, 474 Migration Regulations 1994 (Cth) reg.2.15, Sch.1, Item 1229, Sch.2, cls.485.215, 485.216, 885.215 |
| An v Minister for Immigration [2007] FCAFC 97; (2007) 160 FCR 480 Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417 Collector of Customs v Agfa-Geveart Ltd (1996) 186 CLR 389 Gill v Minister for Immigration [2010] FMCA 587 Minister for Immigration and Multicultural Affairs v Li [2000] FCA 1456; (2000) 103 FCR 486 Minister for Primary Industries and Energy v Austral Fisheries (1993) 40 FCR 381 Nayeem v Minister for Immigration [2010] FMCA 618 Queensland Construction Material Pty Ltd v Redland City Council & Ors [2010] QCA 182 |
| Applicant: | PRITESHKUMAR RAMESHCHAND PANCHAL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1271 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 August 2011 |
| Date of Last Submission: | 15 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Kinslor Prince |
| Counsel for the Respondents: | Mr Kennett SC with Mr Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1271 of 2011
| PRITESHKUMAR RAMESHCHAND PANCHAL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an Application for review of a decision of the Migration Review Tribunal affirming the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Skilled (Provisional) (Class VC) visa.
By his Amended Application filed in Court (with leave) on the day of the hearing, the Applicant seeks the following:
a)A Writ of Certiorari bringing the decision of the Second Respondent into this Court to be quashed;
b)A Writ of Prohibition restraining the First Respondent from acting upon or giving effect to the decision of the Second Respondent made on 23rd May 2011;
c)A Writ of Mandamus compelling the Second Respondent to reconsider the application according to law;
d)costs
The First Respondent has filed a Response claiming that the Application for judicial review does not disclose any jurisdictional error.
Background
The Applicant is a citizen of India. He applied for a Skilled Graduate (Class VC, subclass 485) visa on 30th September 2008. His nominated occupation was given as “Engineer – Electrical or Electronics Engineering Technologist”. In his application, he answered the question requiring him to provide an Australian Federal Police check by giving his full name and supplying the date of request “13 Aug 2008”.[1]
[1] See Court Book at page 7
On 9th October 2008 the Applicant forwarded an email to the Adelaide Skilled Processing Centre advising them that he had forgotten to submit his IELTS date confirmation document and then supplied it.
On 22nd June 2009 the Department of Immigration and Citizenship sent an email to the Applicant containing a request for further information. In that document, the Department requested that the Applicant provide various documents, including:
· Police clearance certificate for each applicant aged 16 years or over from every country where you have lived for a total of at least 12 months in the last 10 years.[2]
[2] Court page 19
The Department sent the Applicant a further email on 4th August 2009, headed “Final Document Request”.
The Applicant replied by email on 6th August 2009, saying:
I have attached required documents according to your requirements, let me know, I have also uploaded same documents on your website, if you need further information.[3]
[3] Court Book page 29
The documents were:
a)School Leaving Certificate from The Palej High School;
b)copies of passport photographs; and
c)copies of pages from the Applicant’s passport
On 10th August 2009 the Applicant forwarded an email to the Department attaching:
a)a letter to the Applicant from Engineers Australia dated 22nd August 2008;
b)a Police Clearance Certificate dated 22nd August 2008 from the High Commission of India;
c)a copy of the Applicant’s Academic Transcript from the University of Southern Queensland; and
d)a copy of the Applicant’s testamur showing the award to him of the degree of Bachelor of Engineering Technology from the University of Southern Queensland.
On 28th August 2009 the Department notified the Applicant that his application for a Class VC, Subclass 485 Skilled Graduate visa had been refused. In the Decision Record, the Minister’s Delegate stated:
You lodged your Subclass 485 visa application on 30 September 2008. Under clause 485.216 you were required to provide evidence that you had applied for an Australian Federal Police check.
At the time of lodgement of your application you did not provide evidence of having applied for your Australian Federal Police check. On 22 July 2009 you were requested to provide the Australian Federal Police check by the due date 20 July 2009. As I did not receive the document, a final reminder was sent on 4 August 2009.
As you have not provided the AFP Certificate nor provided evidence that you applied for an AFP Certificate I am not satisfied that you meet Reg 485.216.[4]
[4] Court Book 50
That same day the Applicant forwarded an email to the Department attaching email traffic with Australian Federal Police about his application for a police check certificate. He attached a Registered Post Customer Receipt dated 13th August 2008 showing an item had been addressed to:
Criminal Records, Australian Federal Police, Locked Bag No 1, Weston ACT.[5]
[5] Court Book 59
The Delegate replied by email on 31st August 2009, saying:
I am unable to revisit the decision I have made. Please exercise your right of review.[6]
[6] Court Book 62
On 11th September 2009 the Applicant applied to the Migration review Tribunal for review of the Delegate’s decision.
The Tribunal wrote to the Applicant on 28th March 2011, inviting him to appear at a hearing of the Tribunal scheduled for 28th April 2011.
The Applicant’s Migration Agent faxed a written submission to the Tribunal on 27th April 2011. The submission said, in part:
Our client has confirmed that he did apply for an Australian Federal Police Check and that the application form, along with payment in the form of a money order, was posted to the Australian Federal Police on 13 August 2008. Enclosed is a copy of the customer receipt for your reference. Our client subsequently followed up the request and enclosed is a copy of the letter received from Australia Post, together with a copy of the delivery record sheet.
Our client has advised that a copy of the customer receipt was uploaded to the on-line visa system following lodgement of the visa application. However, our client has advised that there was a technical issue with the Department’s on-line system and our client’s documents were subsequently not uploaded to the application.[7]
[7] Court Book 84
Attached to the submission were the following:
a)the Registered Post Customer Receipt bearing date stamp 13th Aug 2008;
b)letter dated 11th Sep 2009 from Australia Post Customer Centre to the Applicant; and
c)copy of the Delivery Record Sheet showing that the letter was delivered on 15/08/2006.[8]
[8] Court Book 85-87
The Applicant attended the Tribunal hearing. He gave evidence on oath. He was accompanied by his Migration Agent, Ms Pearce.
On 5th May 2011, the Applicant’s Migration Agent forwarded a further written submission to the Tribunal. The purpose of the submission was to provide further evidence of the Applicant having applied for an Australian Federal Police check prior to lodging his visa application.
The submission was that the Applicant had complied with the evidentiary requirement set out in clause 485.215 on completing and submitting the on-line application form. On doing so, he had confirmed that he had applied to the Australian Federal Police on 13th August 2008. A copy of an earlier Tribunal decision in the matter of one Masako Ando was attached. This decision was on similar facts to the decision under review.
In the decision attached, the Tribunal noted that the applicant had claimed in her application for a visa that she had applied for an AFP check. The Tribunal there found at paragraph [40] of the Decision:
The Tribunal finds that the answers provided by the applicant in the online application form (particularly) since they have later been corroborated) fulfil the evidentiary requirements set out in clause 485.216.
The submission goes on to enclose a copy of the applicant’s bank statement showing that he paid the sum of $146.18 to Australia Post, a portion of which was used to purchase a money order made payable to the Australian Federal Police.
The submission also states:
Following the hearing on 28 April 2011, we were advised that our client received e-mail confirmation from Australia Post that he purchased a money order for the sum of $31.73 made out to the Australian Federal Police on 12 August 2008. The e-mail correspondence confirming this and the money order reference number is attached.[9]
[9] Court Book 109
The Migration Agent also submitted that the Applicant had complied with reg.2.15 of the Migration Regulations. It was submitted that a copy of the customer receipt for the registered post article was uploaded to the on-line visa system following lodgement of the visa application, but due to a technical issue with the Department’s on-line system the Applicant’s documents were not uploaded to the application, although he did receive and automated response on 7th October 2008 confirming that the documents had been received successfully.
Once the on-line application had been received on 30th September, the Applicant received a system generated email confirming receipt of his application for a visa. The system generated email contained an invitation to provide further documents. The submission continues:
Documents are not able to be uploaded and attached in the course of completing the on-line application. It is only possible to upload documents after lodgement of an on-line application. Following lodgement, Mr Panchal received the automatic notification e-mail, which instructed him to provide documents within 28 days of the request.
We are instructed that our client provided documents on 7 October 2008, which is within this 28 day period[10]. We therefore submit that our client has met Regulation 2.15.[11]
[10] i.e. the period provided by reg.2.15
[11] Court Book 109
The Migration Tribunal Decision
The Tribunal made its decision on 23rd May 2011, affirming the Delegate’s decision not to grant the Applicant a visa.
In the Decision Record, the Tribunal described the issue in this way:
The issue in the present case is whether the application was accompanied by evidence that the applicant has applied for an Australian Federal Police (AFP) check during 12 months before the application was made.[12]
[12] Court Book 134 at paragraph [10]
The Tribunal considered the Applicant’s emails, the delegate’s decision, the Applicant’s written submissions of 27th April and 5th May 2011, and the Applicant’s oral evidence under the heading “Claims and Evidence”.
In its Findings and Reasons, the Tribunal noted that the Applicant’s Migration Agent had submitted two alternative means by which the Applicant had satisfied the requirement in cl.485.216:
Firstly, it is argued that the applicant’s inclusion of date of request (13 Aug 2008) in the online form of itself is evidence and cites MRT case reference 0905418 as supporting this argument. Secondly the agent argues that Reg. 2.15(1)(c) provides an applicant 28 days to lodge further information and that as the applicant attempted to upload the Australia Post customer receipt on 7 October 2008 i.e. within 28 days of application he was in compliance with the regulation.[13]
[13] Court Book 140 at [33]
The Tribunal stated that it was not bound by previous Tribunal decisions, as each case is decided on its own facts.
The Tribunal gave these reasons:
…The Tribunal is of the view that the evidence to which cl. 485.216 refers is not limited to the provision of any particular type or form of evidence. However, it considers that for the words ‘accompanied by evidence’ to have meaning, it cannot be just information without some additional quality that provides a ground for a belief. In the context of cl. 485.216, the evidence should provide a ground for belief or indication that the applicant has applied for an Australian Federal Police Check during the 12 months immediately before the date of the visa application.
35.In this case, the applicant did not include with his visa application on 30 September 2008 a reference number for the AFP check, the reference number of the postal order, the registered post receipt or any other separate, verifiable information that could be considered to constitute ‘evidence accompanying the application’. The Tribunal notes that the agent’s submission that the AFP do not provide applicants with a reference number at the time of lodgement and this may be so. However, as noted above, the Tribunal considers that ‘evidence’ to which cl. 485.216 refers is not limited to the provision of any particular type or form of evidence, so even if an applicant did not have a reference number from AFP which is a common form of evidence of an AFP check having been applied for, it is open to an applicant to provide other forms of evidence to satisfy the requirement.[14]
[14] Court Book 140 at [34]-[35]
The Tribunal said that it had considered other evidence submitted or attempted to be submitted by the applicant but was not satisfied that the evidence was sufficient to enable it to make an inference that the Applicant had applied for an AFP check on 13th August 2008. The Tribunal stated:
While the customer receipt, declaration and information from Australia Post provide a belief that a parcel was addressed to the AFP on 13 August 2008, it does not provide evidence that it was the applicant’s AFP check…
37.The Tribunal then turned its mind as to whether evidence lodged with the Department and the Tribunal after the date of the application, including the customer receipt the applicant claims to have uploaded without success on 7/10/2008, emails between the applicant and the Australia Post indicating that he purchased money order for $32.73 to the AFP on 12/8/08, the bank statement, Australia Post trace letter & Delivery Record, such that his statement could constitute ‘evidence’ for the purposes of cl. 485.216. The Tribunal is of the view that these documents could in some circumstances be considered to be evidence for the purpose of cl. 485.216. However, even if the Tribunal were to accept this as evidence and there are some concerns regarding this material as noted above, as they were not in any way attached to, or referenced in the visa application, the Tribunal finds that they do not satisfy the requirement that the evidence ‘accompany’ the application.[15]
[15] Court Book 141 at [36]-[37]
The Tribunal also noted that the Applicant had not provided a copy of his AFP check, although invited to do so, which cast some doubt as to whether he had in fact applied for it.
The Tribunal also considered the argument about Regulation 2.15(1)(C) providing an applicant a period of 28 days, but found that this did not override the requirement in relation to cl.485.216 that the application for a visa had to be accompanied by evidence that the applicant had applied for an AFP check during the 12 months immediately preceding the date of the application.
The Tribunal disagreed with the submission by the Applicant’s agent that it was not possible to upload or attach documents when completing an on-line application.
The Tribunal affirmed the delegate’s decision not to grant a visa to the Applicant.
Application for Judicial Review
The Applicant filed an Application on 17th June 2011, accompanied by an affidavit by his solicitor, Mr Prince, annexing:
a)a copy of the Tribunal Decision Record;
b)a copy of a letter to the Applicant from the Australian Federal Police dated 2nd June 2011; and
c)an Australian Federal Police Name Check in relation to the Applicant valid as at 19th August 2008.
The Applicant filed a Notice to Admit Facts on 1st August 2011 and an affidavit by Nigel James Dobbie, a solicitor, on 3rd August 2011.
The Applicant filed in Court, with leave, an Amended Application.
The grounds of the Application are:
1. In deciding to affirm the decision of the First Respondent, the Second Respondent committed an error of law amounting to a jurisdictional error by failing to apply the correct law in Reg.485.216 of the (Cth) Migration Regulations 1994.
2. The decision of the Second Respondent was infected by a denial of natural justice or other jurisdictional error.
The particulars of the first ground are:
(a)Pursuant to this provision the Second Respondent was required to consider whether the visa application had been accompanied by evidence that the Applicant had applied for an Australian Federal Police check during the 12 months immediately before the day on which the visa application was made.
(b)The Second Respondent failed to understand that the answer given in the on-line application form that the Applicant had applied for an Australian Federal Police Certificate on 13 August 2008 was sufficient “evidence” for the purposes of Reg.485.216.
(c)In the alternative to paragraph (1)(b), the Second Respondent failed to understand that documents provided between the time of lodgement of the application and the date that the visa application was finally determined by the Second Respondent constituted evidence “accompanying” the application.
The particulars of the second ground are:
(a)The second respondent failed to enquire of the first respondent exactly what the first respondent received in the applicant’s email of 7 October 2008 to the Adelaide Skilled Processing Centre.
(b)Further or alternatively the second respondent failed to inform the applicant that the attachments to his email had not in fact been received, and that its automated reply to the effect that they were received was incorrect.
Submissions and Evidence
The Applicant relies on:
a)the affidavit of David John Prince sworn 17th June 2011;
b)the Notice to Admit Facts filed on 1st August 2011; and
c)the affidavit of Nigel James Dobbie affirmed on 3rd August 2011.
Senior Counsel for the Minister, Mr Kennett, told the Court there was no objection to the affidavit of Mr Prince.
A query was raised about the relevance of paragraphs [3] to [12] of
Mr Dobbie’s affidavit, an affidavit in which he put himself forward as an expert, a specialist in Immigration law. Counsel for the Applicant, Mr Karp, submitted that Mr Dobbie’s affidavit was admissible because it was necessary to prove a fact upon which the Applicant relied to make out elements of his case.
The Minister was content to admit the matters set out in paragraphs 1 and 2 of the Notice to Admit Facts, which said:
1. On 30 September 2008 documents could not be attached to or uploaded simultaneously with a visa application form lodged electronically with the Department of Immigration and Citizenship.
2. Any documents that were required to be lodged in support of a visa application which had been lodged electronically had to be provided, either electronically or otherwise, at some time after lodgement of the relevant visa application.
The Applicant relied on two written submissions, the second of which was a submission in reply to the Minister’s written submissions.
Counsel for the Applicant, Mr Karp, submitted that an application for a subclass 485 visa can be submitted as an Internet application, by post or by courier[16]. Schedule 2 contains the Criteria to be satisfied at time of application, which include:
[16] Migration Regulations 1994, Schedule 1, Item 1229
…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[17].
[17] Clause 485.216
Mr Karp defined the issues in the case as:
a)what on its true construction is the meaning of the term “accompanied by evidence”; and
b)what on its true construction is the meaning of the word “evidence” in the context of the applicable Regulations?
Mr Karp submitted that there could be no doubt that the Applicant had in fact lodged an application for an AFP check in August 2008. Annexures “B” and “C” to the affidavit of Mr Prince are evidence of that fact.
In addressing the first issue, the true construction of the term “accompanied by evidence”, Mr Karp referred to the discussion by Lindgren J of the principles of statutory construction in An v Minister for Immigration[18], where his Honour said at 481:
First, although the ordinary meaning or common understanding that a simple non-technical English word conveys in the community is a matter of fact…this is often an insufficient proposition on which cases can be decided. The reason is that associated questions of law often arise, such as whether the word is used in its ordinary non-technical sense, and, most importantly, whether, and if so how, the meaning of the word in a particular case is affected by the statutory context in which it occurs…The “statutory context” refers not only to the immediately surrounding text, but also to the piece of legislation as a whole, and its purpose or object. Context provides a sound starting point for construction in all cases, even though the conclusion may ultimately be reached that the word is hardly influenced by context at all.[19]
[18] [2007] FCAFC 97; (2007) 160 FCR 480
[19] (2007) 160 FCR 481
It was submitted that the purpose of the requirement that certain evidence “accompany” a visa application would seem to be to ensure that relevant enquiries and applications for information have been made so that the decision can be made in a timely manner. The words “accompanied by evidence” do not require simultaneous transmission but allow for evidence to be provided within a reasonable time after the application has been made.
If the words “accompanied by evidence” in clause 485.216 do require simultaneous transmission, the clause would be void for unreasonableness. A construction which supports validity should be preferred. As established by Mr Dobbie’s affidavit, and contrary to the findings of the Tribunal, supporting documentation cannot be attached to an application made via the Internet at the moment of lodgement and must be lodged some time after the application is made. A construction that would require simultaneous transmission would lead to manifest arbitrariness and injustice, and the clause thus construed would be invalid.
Mr Karp referred the Court to the decision of Lockhart J in Minister for Primary Industries and Energy v Austral Fisheries[20], where his Honour held at 384:
Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws.[21]
[20] (1993) 40 FCR 381
[21] (1993) 40 FCR 381 at 384
Further, it was submitted that the Tribunal erred in finding that the customer receipt, declaration and information from Australia Post supplied by the Applicant were not evidence that the application for an AFP check had been made in August 2008. “Evidence” is a word with a technical, legal meaning, and that meaning is a question of law (Collector of Customs v Agfa-Geveart Ltd[22] at 395). “Evidence” is that which could rationally affect the assessment of the probability of a fact (see Evidence Act 1995 (Cth) s.55).
[22] (1996) 186 CLR 389
Mr Karp submitted that, contrary to the findings of the Tribunal, the existence of those documents affects the probability of the existence of a fact in issue in the case, namely, whether the application for an AFP check was made in August 2008.
In the alternative, it was submitted that if simultaneous evidence is required, that evidence was provided in the visa application form, which was the only way in which simultaneous transmission of evidence could have been provided.
Further, information provided by an applicant rationally affects the probability of the existence of a fact and is itself a ground for belief in the truth of the information. There is no reason why a person’s word should not be believed solely because he or she is an application for a visa.
Senior counsel for the Minister, Mr Kennett, took issue with the Applicant’s contention that the words “accompanied by” in cl.485.216 mean at the time of the visa application or a reasonable time thereafter, relying on the decisions of Lloyd-Jones FM in Gill v Minister for Immigration[23] at [17]-[22] and Cameron FM in Nayeem v Minister for Immigration [24] at [36]. Clause 485.216 is a “time of application” and, in light of comments in Berenguel v Minister for Immigration and Citizenship[25], it can only be satisfied by evidence provided at the time the application is lodged.
[23] [2010] FMCA 587
[24] [2010] FMCA 618
[25] [2010] HCA 8; (2010) 264 ALR 417
It is not necessary to determine whether a “time of application” criterion requires simultaneous provision of the relevant evidence or merely provision on the same day. The question does not arise because the Applicant’s communications with the delegate on 28th August 2009, eleven months after the application was lodged, and his submissions to the Tribunal on 27th and 28th April 2011 could not possibly be said to meet this requirement.
It was submitted that the issue is whether the Applicant’s statements in his application to the effect that he had applied for an Australian Federal Police check on 13th August 2008 are evidence of the Applicant’s having so applied so as to satisfy the requirement of clause 485.216. The word “Evidence” is not defined in the Migration Act 1958 or the Migration Regulations 1994.
When regard is had to the composite phrase in cl.485.216 “the application is accompanied by evidence that”, it is plain that a distinction is drawn between answers in the application form itself and evidence that accompanies it. The submission is that the word “application” in this sense must refer to the application form (see Minister for Immigration and Multicultural Affairs v Li[26] at [76]). The evidence that accompanies the application does so in the sense of the phrase “to add or conjoin to; to send (or give) with the addition of” (see Queensland Construction Materials Pty Ltd v Redland City Council & Ors[27] at [136]).
[26] [2000] FCA 1456; (2000) 103 FCR 486
[27] [2010] QCA 182
As the Applicant did not provide anything at the time of his application for the visa except his answers in the application form to demonstrate that he had applied for an AFP check in the previous twelve months, he did not satisfy the requirement of clause 485.216 because he provided nothing in addition to the form itself.
The Minister submits that there is no jurisdictional error in the Tribunal’s decision and thus it is a privative clause decision within s.474 of the Migration Act.
In the Applicant’s submissions in reply, Mr Karp took issue with the Minister’s contention that it is not necessary to consider whether cl.485.216 requires simultaneous transmission of documents or transmission merely on the same day, because it is a “time of application” criterion and the law does not recognise different parts of a day. Thus, material “accompanying” the application can be sent the same day.
It was submitted that the Minister’s submission has confused the “time of application” with the “date of application”. Thus:
a)There is a difference between applying for a visa on the one hand and the substantive application on the other.
b)A person must apply for a visa as provided by s.45 of the Migration Act and fulfil the requirements of s.46 of the Act.
c)Once a valid application has been lodged, the Minister must consider whether the requirements for a grant of a visa are met.
d)The Minister is to consider a valid application for a visa (subsection 47(1)), and that obligation continues until the application is withdrawn or a decision is made (s.65). The Minister must also consider further information submitted until the decision is made (ss.54 and 55).
Thus, the consideration of the application itself is a continuum, a process that continues until a decision is made.
As to the “time of application” at which criteria need to be satisfied, the word “time” can mean an instant or a period. In Berenguel v Minister for Immigration and Citizenship[28] the High Court held that the words “time of application” inform the construction of the various Schedule 2 provisions that require satisfaction but do not govern them to the exclusion.
[28] supra
It was submitted that the “time of application is the period during which the application is being considered and, therefore, a visa application is “accompanied by evidence” of something if that evidence joins it at a point in the process prior to the decision (including the decision on review) and then runs with the application to the point of that decision.
Conclusions
The issues have been aptly described by the Applicant’s counsel as:
a)the meaning of the term “accompanied by evidence” in the context of cl.485.216; and
b)the meaning of the word “evidence” in that same context.
Clause 485.216, which refers to criteria to be satisfied at time of application, provides that:
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 phrase “is accompanied by evidence” was considered by Lloyd-Jones FM in Gill v Minister for Immigration[29]. In the case under review, his Honour was considering a Tribunal decision concerning cl.885.215 of Schedule 2 to the Migration Regulations. That clause provides:
The application is accompanied by evidence that the applicant and each person included on the application has made arrangements to undergo a medical examination for the purpose of the application.
[29] supra
It can be seen that the clause is in identical terms to clause 485.216 insofar as it refers to “The application is accompanied by evidence”. At paragraphs [17] to [22] of his decision, his Honour considered the decision of the High Court in Berenguel v Minister for Immigration and Citizenship, but distinguished it, holding at [24]:
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.[30]
[30] [2010] FMCA 587 at [24]
Nayeem v Minister for Immigration[31] dealt with cl.485.215. Cameron FM also considered the decision in Berenguel, but did not have the decision in Gill v Minister for Immigration before him, as his Honour took submissions on 6th July 2010 and the decision in Gill was not handed down until August of that year. Cameron FM held at [36]:
Plainly, cl. 485.215(a) and (b) use language the same as that seen in cl. 885.213, and cl. 485.215(c) uses language the same as that seen in cls. 885.214 and 885.215. From the High Court’s comments it must be understood that when a clause requires that an application be “accompanied by evidence” of a particular state of affairs, the relevant criterion can only be satisfied by evidence provided to the Minister at the time the application is lodged. Consequently, far from imposing a procedural requirement which may be satisfied at a date later than the time of application, cl. 485.215(c) imposes a substantive requirement which must be satisfied at the time of application if it is to be satisfied at all.[32]
[31] supra
[32] [2010] FMCA 618 at [36]
In my view, the decisions in Gill and Nayeem are directly on point and must be regarded as persuasive. I intend to follow both decisions.
The Applicant in the case under review did not provide the necessary material to the delegate until 28 August 2009, which can in no way be described as meeting the time of application criterion. The material annexed to the affidavit of Mr Prince seems never to have been submitted, either to the delegate or to the Tribunal.
Turning to the question of the meaning of “evidence”, it is not defined in either the Migration Act or the Migration Regulations, as the Minister submits. Mr Karp has referred by analogy to s.55 of the Evidence Act, which refers to “relevant evidence” rather than “evidence” per se. The Dictionary in the Act does not “evidence”.
Subsection 55(1) states:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
With respect, that hardly resolves the question to be decided.
In his Online application form, the Applicant answered “yes” to the question on page 1:
Australian Federal Police
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?[33]
[33] Court Book 1
In answer to the question on page 7 of the application:
Australian Federal Police check
Provide Australian Federal Police check details for all persons included in this application who are 16 years of age or over.
Name
Date of Request
Reference Number
the Applicant provided the following information:
Priteshkumar Rameshchandra Panchal
13 Aug 2008[34]
[34] Court Book 7
The Applicant submits that the provision of this information in the form is of itself evidence that complies with the requirement of cl.485.216. However, I agree with the Minister’s submission that the phrase “the application is accompanied by evidence” clearly refers to something other than that which is contained in the online application form.
In Minister for Immigration and Multicultural Affairs v Li[35], the Full Court of the Federal Court held at [76]:
The Minister’s contention that the lodging of the incomplete form 866 constituted the making of an application for the purposes of reg. 2.10(1)(b) cannot be sustained. As Hill J pointed out in Nader at 561[53], the legislation uses the term “application” in two senses. Sometimes, as in s 54, the word refers to the application form itself. On other occasions, as in ss. 45 and 46, it refers to the process of applying for a visa which includes, but is not limited to, the completion of a prescribed application form.[36]
[35] supra
[36] (2000) 103 FCR 486 at [36]
As the Minister submitted, in Queensland Construction Materials Pty Ltd v Redland City council & Ors[37], a decision of the Queensland Court of Appeal, the majority held at [136]:
The form requires the application to be “accompanied by evidence” of the chief executive’s satisfaction of the relevant matter. The Shorter Oxford English Dictionary definition of ‘accompany’ includes:
“1. To add or conjoin to; to send (or give) with the addition of.”[38]
[37] supra
[38] [2010] QCA 182 per Chesterman JA and Applegarth J at [136]
Thus, it appears that the clause contemplates evidence being provided at the same time as the application form is lodged, whether that be simultaneously or on the same day. If that is so, and I believe it is, statements contained within the application cannot by any stretch of the imagination be described as “accompanying” the application. They are statements within the application.
If, as the Applicant submits, the clause refers to the application as a continuum, so that “time of application” means the period during which the application is being considered, the addition of evidence during that period of consideration can hardly be described as “accompanying” the application. On the Applicant’s proposed definition, the evidence being provided during the period of consideration does not accompany the application, but becomes part of it.
To my mind, the Applicant’s submission stretches the concept of “accompany” far beyond its ordinary English meaning. I am not persuaded by the submission.
There is no jurisdictional error. The Tribunal decision is a privative clause decision as defined by s.474 of the Act.
The Application will be dismissed. The Court will hear submissions as to costs.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 28 June 2012
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