Pradabsuk and Vicheanrattanapong v Minister for Immigration
[2005] FMCA 667
•20 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PRADABSUK & VICHEANRATTANAPONG v MINISTER FOR IMMIGRATION | [2005] FMCA 667 |
| MIGRATION – Skilled independent overseas student (residence) visa – whether valid application – whether clause 1128CA(3)(d)(ii) in Schedule 1 of Migration (1994) Regulations valid. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.13, 29, 30, 32, 40, 46(1), 46(3), 46(4), 47(1), 47(3), 47(4), 48, 504
Migration (1994) Regulations Sch 1 cl 1128CA(3)(d)(ii)
Kim v MIMIA (2004) FCA 956
Minister for Immigration & Multicultural & Indigenous Affairs v Kim [2004] FCAFC 329
R vAnderson Ex Parte IPEC Air Pty Ltd (1965) 113 CLR 177
Edemin v MILGEA (1990) 21 ALD 69
Re Refugee Review Tribunal Ex Parte Aala (2000) 204 CLR 82
Minister for Immigration and Multicultural Affairs v Hayman (1999) 90 FCR 120
Fang v Minister for Immigration and EthnicAffairs (1996) FCR 245
Bal v Minister for Immigration and Multicultural Affairs (2002) 189 FCR 99
| Applicant: | SUPAPORN PRADABSUK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | PEG10 of 2004 |
| Applicant: | RATCHANEE VICHEANRATTANAPONG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | PEG 11 of 2004 |
| Delivered on: | 20 May 2005 |
| Delivered at: | Perth |
| Hearing date: | 6 May 2004 |
| Date of Last Submissions: | 28 February 2005 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicants: | Mr T Hurley |
| Solicitors for the Applicants: | Mark Andrews & Associates |
| Counsel for the Respondent: | Mr Ritter |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application be dismissed.
2. The Applicant shall pay the Respondent’s costs fixed in the sum of $3,000.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 10 of 2004
| SUPAPORN PRADABSUK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
PEG 11 of 2004
| RATCHANEE VICHEANRATTANAPONG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
Both applications were filed on 29 January 2004.
It was agreed between the parties that the applications should be heard together with submissions from both parties filed and served in each application being almost identical. It was further agreed that affidavits filed in one application should be taken to be affidavits filed and relied upon in the other application.
Both applicants had filed applications pursuant to s.39B of the Judiciary Act 1903 (Cth). They have both sought review of a decision of an officer of the respondent’s Department that their applications for a skilled independent overseas student (class DD) subclass 880 visa was not a valid visa application within s.46(1) of the Migration Act 1958 (Cth) (the Act) because it failed to comply with the requirements of Migration (1994) Regulations (the regulations) Schedule 1 Clause 1128CA(3)(d)(ii) (the clause).
The decision regarding Ms Pradabsuk was made on 6 January 2004 and the decision for Ms Vicheanrattanapong was made on or about
2 January 2004 though received by her migration agent on 7 January 2004.
The delegate of the respondent had decided in each application that because each applicant had submitted a police clearance from the Western Australian Police Service that each application was not validly lodged. The Applications should have included evidence that the Australian Federal Police (AFP) had completed a check of criminal records in relation to each Applicant.
The grounds relied upon in each case are identical though it is noted at the hearing application was made by counsel representing Ms Vicheanrattanapong in application PEG11/2004 to amend the application by adding a ground 1A to which reference will be made later in this judgment. As a consequence of that application to amend the respondent was granted leave to make submissions in relation to the proposed amendment and to further make submissions in the event that the amendment is allowed as to the substance of that amendment and if necessary file further affidavit material.
Reference was made after the hearing to a decision of the Federal Court in Kim v MIMIA (2004) FCA 956 (Kim) where Branson J held that a requirement in Schedule 1 of Migration Regulations (1994) did not lawfully impose a visa criterion on a requirement to be satisfied at the time of application. That decision led the applicants to seek to further amend the applications.
The decision of Branson J at first instance was the subject of an appeal which the parties agreed should be determined before this Court delivered its decision in these applications. The Full Court of the Federal Court delivered its decision on 22 December 2004 (see Minister for Immigration & Multicultural & Indigenous Affairs v Kim [2004] FCAFC 329). After the Full Court decision the parties provided further written submissions to be considered by the Court which I shall refer to later in this judgment.
The Applicants filed contentions of fact and law on 29 April 2004 and 29 October 2004 and “Second Contentions of Applicants in support of the Amended Application” on 28 February 2005. It was the desire of both Applicants to rely upon the contentions in each application. The Respondent filed an outline of submissions on 5 May 2004, Supplementary Written Submissions on 30 November 2004 and further written submissions arising from the Full Court decision in the matter of Kim on 25 February 2005.
The Amended Application
Both parties claim in the Amended Application the following though it should be noted that 1A is only relied upon in the application of Vicheanarattanapong.
“1.An order in the nature of Certiorari to quash the decision on the ground that it involved a jurisdictional error in that the delegate concluded the Applicant had not submitted evidence, or alternatively satisfactory evidence, that during the 12 months immediately before the date on which the application was made the Australian Federal Police had completed a check of criminal records in relation to the Applicant when this was contrary to fact and law;
1A.An order in the nature of Certiorari to quash the decision on the ground that it was unreasonable and beyond jurisdiction because it was made before the Applicant could provide the material requested and offered on 19 December 2003.
1B.An order in the nature of Certiorari to quash the decision on the ground that it involved a jurisdictional error in that the purported requirement imposed by Cl 1128CA(3)(d)(ii) of Schedule 1 of the Migration (1994) Regulations was not a valid criteria for the grant of the visa authorised by s.31(3) of the Migration Act nor did the clause specify a circumstance within s.40(1) of the said Act.
1C.An order that the Court determine within s.39B (1A)(c) of the Judiciary Act 1903 (Cth) and s.483A of the Migration Act that the requirement imposed by Cl 1128CA(3)(d)(ii) of Schedule 1 of the Migration (1994) Regulations is not lawful.
2.An order in the nature of Mandamus to require the Respondent, himself and by his servants and agents, to consider and determine the application by the Applicant of 17 December 2002 for a Subclass 880 Visa according to law.”
It should be noted that paragraphs 1B and 1C above are taken from the Vicheanarattanapong Amended Application and are identical to paragraphs numbered 2A and 2B in the Pradabsuk Amended Application. Both Amended Applications were amended in September 2004.
Affidavit evidence
Ms Pradabsuk relies upon an affidavit sworn by her on 28 January 2004, an affidavit of Peter Michael Newnes sworn 28 January 2004, an affidavit of Michael Arthur Coster sworn 30 March 2004, an affidavit of Stewart Kenneth Cross filed 4 May 2004 and an affidavit of John Pass sworn 3 May 2004.
In this application the respondent relied upon an affidavit of Teresa Chew Ping Ling sworn 23 March 2004 together with an affidavit of Alan Ross sworn 5 May 2004.
Objections to Affidavit evidence
It is noted arising out of the affidavit material the respondent has taken objection to paragraphs 14, 15, 16 and 17 of Ms Pradabsuk’s affidavit though fairly conceded that the objection to those paragraphs related to the applicant’s migration agent namely Mr John Pass who as I have indicated has sworn an affidavit on 3 May 2004. Hence, whilst the objections may have validity I am prepared to simply disregard paragraphs 14, 15, 16 and 17 of the applicant’s affidavit in circumstances where the court now has the affidavit of the migration agent. It is noted however that further objection was taken to the applicant’s affidavits by the respondent and in particular paragraphs 9 and 10 of the affidavit of Peter Michael Newnes. In those paragraphs the deponent refers to being acquainted with what he understood to be a manual relating to this class of visa and I accept that to the extent that he seeks to express conclusions as to what might be satisfactory compliance with the requirements which are subject of this application I shall disregard that part of his affidavit. Hence I do not rely upon paragraphs 9 and 10.
Objection was taken to paragraph 3 of the affidavit of Stewart Kenneth Cross where the deponent refers to making the affidavit from his own knowledge of what is described as CrimTrac processes. I do not uphold the objection as the deponent in my view is able to refer to the CrimTrac process.
Objection was taken to paragraphs 6, 11, 18 and 25 of the affidavit of John Pass. To the extent that those passages in the affidavit contain hearsay material I am prepared to disregard that material though do not disregard the deposed evidence that he informed his client to obtain a clearance from the AFP nor that she provided him with a “National Police Certificate” dated 17 December 2003. I do not accept the objection taken to paragraph 18 as in my view it is within the ambit of the deponent’s knowledge to depose to the matters set out therein namely that he spoke to an officer on 22 December 2003 and was told that they would do their best to accommodate his request for character certificate and otherwise referred to the fact that it was coming up to the Christmas stand down period and they had “literally thousands of applications to deal with”. The precise relevance and weight to be given to that material is a separate issue but I am prepared to admit it.
Paragraph 25 of that affidavit by Mr Pass seeks to assert a conclusion which in my view is not a matter which should be admitted and
I would disregard that paragraph. An objection was taken to paragraph 5 of the affidavit of Michael Arthur Coster insofar as that paragraph refers to the National Police Certificate and attempts by him to make a similar enquiry on 15 March 2004 where he found that Pradabsuk was not recorded on the indices of any Australian Police jurisdiction. As
I understand it the objection was to the date of that enquiry as being irrelevant for the matters under consideration by the Court. I am prepared to accept the paragraph as admissible though again the extent of its relevant and weight is a separate issue. It is at least potentially relevant depending on the outcome of this decision.
It is common ground that the Act regulates the lawful presence of non citizens in Australia by providing in s.13 that unless non citizens hold a visa that is in effect they are deemed to be unlawful. Regulations are provided which prescribe criteria for various classes of visa (see ss. 29, 30 and 31 of the Act). Specific criteria are prescribed in the Regulations. It is noted that s.31(3) of the Act prescribes “criteria” for a visa or visas and s.40 provides for the “circumstances” in which a visa may be granted. Section 46(3) confers power to prescribe “criteria” that must be satisfied for an application to be a valid application and s.46(4) confers power to prescribe the “circumstances” that must exist for an application to be valid.
Relevant legislation
Section 46 provides:-
‘(1)Subject to subsections (1A) and (2), an application for a visa is valid if, and only if:
(a) it is for a visa of a class specified in the application; and
(b) it satisfies the criteria and requirements prescribed under this section; and
…
Clause 1128CA(3) of the Regulations provides:-
“(3)Other
(a) …
(b) …
(c) …
(d) application must be accompanied by satisfactory evidence that:
(i) the Applicant has undergone a medical examination … and
(ii) during the 12 months immediately before the day on which the application is made, the Australian Federal Police have completed a check of criminal records in relation to the Applicant.
…”
the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
….’
Background
Ms Pradabsuk as indicated earlier had applied on or about 18 December 2003 for an Australian visa class DD subclass 880 skilled-independent overseas student (residence). According to her affidavit Ms Pradabsuk entered Australia in July 2000. She then undertook courses in food beverage and commercial hospitality in Western Australia. In her visa application Ms Pradabsuk completed “Part J – Checklist”. That checklist provides the following:-
“For each person aged 16 years or over included in your application, attach proof that the Australian Federal Police have completed a check of criminal records”.
The box next to that requirement has been left blank though an asterisk was marked on the left hand margin with a cross-reference for the asterisk to the words “to follow”. A National Police Certificate provided by the Mirrabooka Police Station of the Western Australia Police Services issued on 17 December 2003 for Ms Pradabsuk certified that her name
“does NOT APPEAR on the disclosable Court history records of any Australian Police jurisdiction.”
Ms Pradabsuk claims that the certificate was enclosed with her visa application dated 10 December 2003 though received by the Department of Immigration on 19 December 2003 and allegedly forwarded by her then Migration Agent.
The two letters both dated 6 January 2004 were forwarded by the Department to Ms Pradabsuk. The first letter entitled, “Acknowledgement of Application” (Court Book p.50) contains the following:
“I am writing about your application for an Australian visa class DD, subclass 880, skilled – independent overseas student (residence) which was lodged on 19th December 2003.”
…
You have been granted a bridging visa A”.
The letter further refers to the delay in processing the application and suggests that processing of the visa will “take up to 7 months”.
The second letter also dated 6 January 2004 from the Department though from a different officer appears to be a pro forma letter which after setting out an identical introduction to the previous letter states the following:
“Your application is invalid because it did not meet the following criteria prescribed in Item 1128CA of Schedule 1 of the Migration Regulations”.
The second letter dated 6 January 2004 then sets out a number of boxes which presumably refer to those matters which may render an application invalid. The relevant box which has been ticked states the following:-
“The Applicant and each member of family unit aged 16 years or over must submit evidence of a criminal record check from the Australian Federal Police obtained in the 12 months preceding the application (please refer to form 1101 on the DIMIA web site). You have submitted a police clearance from the Western Australian Police Service”.
The letter goes on to state the following:-
“ As your application was not validly lodged, it is returned together with all the documentation included. A refund of the application fee has been requested and the original payer should receive the payment in 4-6 weeks.
Please note that this decision is not merits-reviewable. This is because a decision that an application is not valid is not a decision to refuse to grant a visa and is therefore not subject to merits review.
You may wish to apply again when you think that you are able to meet all requirements for a valid application. Please note that visa requirements are subject to change and any subsequent application(s) will be assessed against the visa requirements that apply at the time of lodgement,
If you have been granted a Bridging Visa A in association with this application, it will cease in 28 days from the date of this letter.
If you do not lodge a valid application for a substantive visa, then you must depart Australia by the date that your current visa ceases.”
Ms Vicheanarattanapong in her affidavit sworn 28 January 2004 deposes that she lodged an application for a skilled independent overseas student visa (class DD) subclass 880 permanent visa claimed to have been lodged by a Migration Agent on 17 December 2003 and received by the Department on 19 December 2003. In her affidavit Ms Vicheanarattanapong states that she had given her Migration Agent a certificate obtained by her from the Western Australia Police Service. In her affidavit there appears to be some confusion as to the name of the document as the deponent refers to the document being entitled ‘National Police Clearance’ and states that it is ‘dated 15 December 2003’. However, the document annexed to the affidavit and marked as exhibit ‘RV-1’ is entitled “National Police Certificate” was issued on 16 December 2003. That certificate in any event refers to Ms Vicheanarattanapong and asserts that she does not appear on the disclosable court history records ‘of any Australian Police jurisdiction’. The certificate is in the same form as that issued to Ms Pradabsuk and was issued on 16 December 2003 by Western Australia Police Service Central Metropolitan Crime Prevention.
Ms Vicheanarattanapong claims that her Migration Agent contacted an officer of the Department and was advised that a bridging visa B could not be issued because the National Police Clearance document included in her application for the overseas student visa was not a “Federal Police clearance”. Her agent allegedly had asked the migration officer to hold the application for the visa open until the agent could contact the AFP on Monday 22 December 2003. She deposes that this occurred but ultimately the agent was not able to obtain a Federal Police Clearance until 30 December 2003 due to the holiday period and that this was not received by the Migration Agent until 5 January 2004. That certificate which became exhibit A2 for the purpose of this hearing was entitled “Police Certificate – Name Check Only” and is dated 30 December 2003 authorised by a person “for and on behalf of Co-ordinator Criminal Records Unit” AFP. The certificate certifies that no disclosable court outcome was recorded against the name of Ms Vicheanarattanapong “in the records of the Australian Federal Police or the police in any Australian State or territory as at 30 December 2003”. Ms Vicheanarattanapong claims that a decision was made of a delegate of the Respondent on or about 2 January 2004 received by her Migration Agent on 7 January 2004 to conclude that her application dated 17 December 2003 was not valid.
Both applicants sought to rely upon an affidavit of Police Sergeant Coster who deposed that his duties at the time of swearing his affidavit on 30 March 2004 were an officer in charge of the Offenders Information Bureau at the headquarters of the Western Australian Police Service. After referring to the certificates and the information on the certificates and in particular the example of the certificate issued for Ms Pradabsuk, the officer deposes the following:-
“5.This certifies that Ms Pradabsuk’s name does not appear ‘on the disclosable court outcomes of any Australian police jurisdiction’. To verify that this information is correct I undertook to make sure the same inquiry on Monday 15/3/2004 and found that Ms Pradabsuk was not recorded on the indices of any Australian police jurisdiction.
6.This information is obtained by an officer who enquires by means of a computer. The officer performs the inquiry of a national database. This database is linked to an entity in Canberra known as “CrimTrac”. This entity was established as an executive agency under the Public Service Act, once the Governor-General signed the instrument on 1/7/2000. An enquiry of ‘CrimTrac’ constitutes an enquiry of police criminal records systems in all Australian police jurisdictions. It includes an enquiry of the criminal records of the Australian Federal Police.
7.Prior to the introduction of the National Police Certificate by the Western Australia Police Service on 7/2/2003 an agreement was reached with the Australian Federal Police. The effect of this agreement is that the Australian Federal Police will not provide a National Police Certificate to applicants in Western Australia. I believe if an enquiry is made of the Australian Federal Police in Western Australia the person would be referred to the Western Australia Police Service.
‘Police Certificate’
8.The second form of certificate is a state based ‘Police Certificate’ only. A copy of such certificate concerning one Peter Newnes is shown to me and marked ‘MC-2’.
9.This certificate records details of ‘disclosable court outcomes’ held by the Western Australia Police Service only. The Western Australia Police Service no longer issues this form of ‘certificate’ after the introduction of the ‘National Police Certificate’ on 7/2/2003. To complete the certificate an officer enters the name of the subject in the police computer to ascertain if the subject has a ‘docket number’. A docket number indicates if the subject if recorded in the criminal history records of the Western Australia Police Service only.
10.I am informed and believe that an issue in the proceedings concern whether provision by Ms Pradabsuk of the ‘National Police Certificate’ (ie exhibit ‘MC-1’) constitutes ‘Evidence of a criminal record check of the Australian Federal Police criminal history records’.
11.From my knowledge the search of the national database maintained by ‘CrimTrac’ specifies if the subject is known in an Australian police jurisdiction. If the national database indicates that the subject is recorded in any Australian police jurisdiction with a criminal history the Western Australia Police Service send a facsimile request to the jurisdiction for a copy of any ‘disclosable court outcomes’. The jurisdiction holding the information would apply any ‘Spent Conviction’ legislation applicable policy appropriate in the releasing jurisdiction.”
Without analysing the detailed submissions by both parties in this matter and the relevant legislation it will be apparent from the brief background that both applicants have a genuine cause for grievance, having both obtained certificates which on the material before me reveal that neither applicant was known to the police including the AFP at the relevant time. In other words the clear intent of any requirement for this visa has been met as neither applicant is suggested to have any relevant criminal history which in any way would preclude them from obtaining the respective visas yet neither application has been considered as a valid application and hence neither applicant afforded the opportunity of a merit review process.
Applicants’ submissions
In the submissions before the Court it was noted by the applicants that the Act provides for the regulations to prescribe criteria for various classes of visa and refers to Schedule 1 of the regulations which sets out the ways in which an application is made for a visa of particular class so as to be a valid application visa (see s.46(1)(b) of the Act). There is no dispute that the clause of the regulations provides the appropriate form to be used and that the clause provides that the application must be accompanied by satisfactory evidence that “during the 12 months immediately before the day on which the application is made the AFP have completed a check of criminal records in relation to the Applicant”.
It was noted that the effect of s.47(1) and (3) of the Act is that the Department is required to consider a valid application for a visa and not to consider an application that is not valid. It is further conceded that s.47(4) “to avoid doubt” provides that a decision that an application is not valid and cannot be considered “is not a decision to refuse the visa” and accordingly not reviewable by the Migration Review Tribunal under Part 5 of the Act.
The applicant argued that s.47 of the Act imposes a duty on the Minister to consider a valid application for a visa and that it clearly imposes an earlier duty on the Minister to consider whether a specific application is “valid” application. This is determined by considering whether it meets the matters required by s.46(1) and in particular s.46(1)(b) set out above. It is contended by the Applicant that the delegate was required to consider whether an application “satisfies the criterion requirements prescribed” and the criteria set out together with the requirements in the clause according to law. It was submitted that whether the requirements were “satisfied” the delegate of the Respondent was required to act according to reason and according to a correct understanding of the current government arrangements which may not be known to the visa applicants (see R vAnderson Ex Parte IPEC Air Pty Ltd (1965) 113 CLR 177 at 189). In the alternative it was argued that each decision was based on a fact that did exist namely that there had not been a search of the record of the AFP. It was submitted that in the evidence of Sergeant Coster as to the effect that the search conducted by the Western Australia Police Service by “CrimTrac” is “a search of the records of all Police Services including the AFP”. It was argued the delegate erred in law in construing the clause as requiring an applicant to provide a search by the AFP whereas the clause requires the application be accompanied by “satisfactory evidence” that the AFP have completed a check. In failing to accept the National Police Certificate was “satisfactory evidence” of what it purported to be, it is argued the delegate erred. Accordingly it was argued that the statutory duty of determining whether or not the application of each applicant was a valid application for the purpose of s.46(1)(b) and s.47(1) of the Act has not been performed according to law.
In support of the Amended Application and in particular the additional grounds 2A and 2B of the Pradabsuk application and 1B and 1C of Ms Vicheanarattanapong’s application, reliance was placed upon the decision of Branson J in Kim. In that case Her Honour considered regulation 2.12 of the regulations which is a regulation prescribing classes of visas for the purpose of s.48 of the Act. It is argued in the present case that the reasoning of Branson J is applicable to the construction of the criterion which the applicants are said not to have satisfied and reveals that the purported criterion is ultra vires. It is perhaps relevant to set out the finding of Branson J who held that regulation 2.12(2) of the regulations was ultra vires. Specifically Her Honour states as follows:-
“30.I reject the contention that the making of sub‑reg 2.12(2) was authorised by any of the general regulation making powers contained in the Act.
31.The contention that the power to prescribe a class of visa for the purposes of s 48 necessarily involves the power to impose a qualification on the entitlement to apply for a visa of that class must, in my view, also be rejected. The power to prescribe a class of visa for the purposes of s 48 is a power to designate a class of visa for the purposes of s 48. It is not a power to determine criteria that must be satisfied for an application for a visa of that class, made by a non‑citizen in the migration zone who satisfies pars (a) and (b) of subs 48(1), to be a valid application. This conclusion is, in my view, compelled by the ordinary meaning of the language of subs 48(1), including the ordinary meaning of the word ‘prescribe’, and by the content of Subdivision AA of Division 3 of Part 2 of the Act (see [24]-[26] above).
32.I conclude that sub‑reg 2.12(2) is not a regulation that the Act authorised the Governor‑General to make. Being ultra vires it is invalid (Shanahan v Scott (1957) 96 CLR 245 at 250; The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170).”
The applicants submitted that s.46(3) of the Act provides that the regulations “may prescribe” criterion that must be satisfied for an application to be a valid application. Section 46(4) provides the regulations “may also prescribe” the “circumstances that must exist for an application for a visa of a specified class to be a valid application (s.46(4)(a)) together with how and where an application for a visa of a specified class must be made and where an applicant must be when an application is made (s.46(4)(b),(c) and (d)). All of those provisions it was argued are contempt regulations which “prescribe” the “circumstances”, “how”, and “where” the application must be made and where the applicant must be at the time of the application. It was submitted the regulations do not reflect what was contemplated by the provisions referred to in the Act.
It is argued the regulations provide for the classes of visas in regulation 2.02. The criteria to those classes of visas are set out in Schedule 2 of regulation 2.03. Regulation 2.07 general provision is made “for the purposes of ss.45 and 46”. Regulation 2.07(1) provides that where an application is required for a particular class of visa. The matters set out in the relevant part of Schedule 1 are:
· The approved form: Regulation 2.07(1)(a)
·The visa application charge (if any) payable: Regulation 2.07(1)(b) and
· Other matters relating to the application: Regulation 2.07(1)(c).
It is submitted by the applicants that while regulation 2.07(1)(c) in so far as it provides for matters “relating to the application” is a valid provision giving effect to s.46(1)(b)(iii) and (iv)(a). The provision only authorises provisions relating to the application. It does not authorise provisions relating to matters other than the application document itself. It does not authorise provisions relating to the visa applicant and the clause.
It is submitted that the provisions of the clause do not relate to “other matters relating to the application” but rather to the visa applicant and/or to the activities of a third party including the AFP or its servants or agents. The applicant submits this criterion is not one authorised by regulation 2.07(1)(c).
It was argued that Branson J in Kim was correct in observing that s.46(4)(a) authorises regulations which identify objective circumstances “that must exist” rather than ones identified as a matter of evaluative judgment. The Applicants further submit that Branson J was correct in observing that the regulations should not be construed to permit an application to be described as “invalid” for reasons which could inform or in substance be the subject of merits review.
It was submitted that the requirement in the clause is not authorised as prescribing the “circumstance that must exist” because it hinges on the determination that the application document is accompanied by “satisfactory evidence”. The “satisfactory evidence” is related to criterion which must be judged by the Minister (or the MRT on review) to be satisfied at the time of the decision.
The Applicants submit that the reference to “satisfactory evidence” in the clause takes it outside the class of circumstances that can be said must “exist” for s.46(4)(a) of the Act.
It was further submitted that the scheme of the Act provides for merits review of a decision to refuse an application on substantive grounds generally by the MRT and that it is inconsistent for the reasons identified by Branson J to interpret provisions defining “valid” applications by reference to identified judgments on criterion “satisfactory evidence” that are to be the subject of judgment in making the substantive decision to grant or refuse to grant the visa. If a visa applicant is to be refused a visa on grounds which Parliament has accepted could be the subject of merits review, it is inconsistent for the application to be defeated at the threshold by a judgment “in lamine” as to whether the evidence is sufficient at all where this judgment is not subject to merits review.
It was submitted the construction allowing judgments other than as to objective facts would create a regulation which was not necessary or convenient to be prescribed for the purposes of carrying out the Act within s.504 of the Act. Such provisions would not be authorised by s.46(1)(b)(iii) and (iv)(a).
The decision of Branson J in Kim as indicated earlier was the subject of a Full Court decision in MIMIA v Kim [2004] FCAFC 329 (22 December 2003). Arising from that decision the Applicants made further submissions that on appeal the Full Court reasoned that Branson J was correct in her analysis (see Moore J at [21]) but that as the regulations were required to be construed to favour validity citing Edemin v MILGEA (1990) 21 ALD 69 at 75-76, it was preferable that the regulation be construed to operate as a criterion applicable at the time the application for the visa was to be determined (Moore J at [21], Tamberlin J at [23]). It was submitted that Allsop J agreed entirely with Branson J, that is regulation 2.12(2) was invalid because it requires there to be in existence at the time of the application an opinion to be formed by the Minister at a subsequent time and this was not authorised as a regulation made under s.46 or s.48 of the Act.
It was submitted by the Applicants that the views of Branson J, Moore J and Tamberlin J are consistent with the proposition that s.46(1)(b)(iii) and (iv)(a) of the Act do not authorise regulations which in effect require a judgment to be about “the applicant” rather than “the application”.
In the event that the Court finds the clause valid then the Applicants further sought to submit that the decision of Kim establishes that s.46(1)(b)(iii) and (iv)(a) authorises the regulations that have a truly “objective” operation so that the Minister is not required to enter into subjective consideration in deciding whether an application is valid. It was submitted the requirements in the clause that the applicant for the visa provide proof of an application from the AFP requires the Minister to make such a subjective judgment.
It was further submitted that the question of how the Minister is “reasonably satisfied” within the clause arises and that the requirements of that clause can be satisfied by “proxy” and that the delegate should have accepted that because both the AFP and the WA Police Service would have ultimately accessed the same information within “CrimTrac” the requirements of the clause was satisfied.
Further, it was submitted that the Act draws a distinction in s.46(1)(b) between “criteria” and “requirements” that can be prescribed by regulation. A further element that the enquiry be made by one particular police force rather than any police force, it was argued, is a “requirement” and not a “criteria” and on that basis the clause is not authorised by s.46(1)(b)(iii) and (iv) of the Act.
Because the Applicants had made some genuine attempt to satisfy the requirements it was submitted the proper construction of the regulation has led to the conclusion that the question of whether they did make a valid application should be determined by reference to matters of substance by a delegate addressing such questions.
Arising from these submissions Pradabsuk seeks an order to quash the decision on 6 January 2004 to conclude that the application for the sub class 880 visa was not valid and a writ of mandamus to require the application to be considered according to law.
The Applicant Ms Vicheanarattanapong seeks a similar order that the decision of 2 January 2004 to reject the application for subclass 880 visa was one that was not valid and it should be quashed and a writ of mandamus requiring the application to be considered according to law.
Respondent’s submissions
There does not appear to be any doubt that in both applications a certificate had been obtained from the Western Australian Police Service.
However, in neither application could it be claimed there is a jurisdictional error in the conclusions that the visa applications did not comply with the clause. It was argued that it could not be established that the decisions of the visa applicants did not provide satisfactory evidence that “AFP” completed a check of criminal records in relation to each applicant is tainted with such an error.
It was argued that both applicants provided a criminal record check by the Western Australian Police Service and not the AFP.
Accordingly no error of fact let alone any error of law or jurisdictional error in the decision made by the Department officers that the visa applications were not valid.
A discrete issue was raised in relation to the application by Ms Vicheanrattapong that the application was ruled to be invalid for not only the criteria relating to the criminal record check but also the criteria that the applicant and each member of their family unit must be in Australia and hold a substantive visa. In relation to that applicant even if she could establish jurisdictional error with respect to the criminal record check, it was argued the Court should refuse to grant relief as to grant relief would be futile (see Re Refugee Review Tribunal Ex Parte Aala (2000) 204 CLR 82). It was specifically argued that the clause applies to applications for skilled independent overseas student (residence) (class DD) visas. It specifies the form which must be used, the visa application charge and other matters. The clause refers to the other criteria including the application must be made in Australia but not in Immigration clearance, the applicant must be in Australia but not in Immigration clearance, the method of making the application and in (d) the application to be accompanied by satisfactory evidence including the AFP Criminal Record check.
It was submitted that in both applications departmental officers determined there was not satisfactory evidence of the AFP completed criminal record and accordingly both applications were invalid. As they were invalid neither the Minister nor a delegate of the Minister was required to consider the applications (see s.47(3) of the Act and compare Minister for Immigration and Multicultural Affairs v Hayman (1999) 90 FCR 120; Fang v Minister for Immigration and EthnicAffairs (1996) FCR 245 and Bal v Minister for Immigration and Multicultural Affairs (2002) 189 FCR 99).
It was submitted that accordingly no jurisdictional error has occurred in the visa applications not being considered.
A further issue was raised that even if there is a real question as to whether the decision of the departmental officers that “satisfactory evidence” was not provided is revealed by a Court in this instance it cannot be claimed there is no factual basis for the decisions made in both cases that the applications were invalid because there was not provided with the visa applications satisfactory evidence of an AFP criminal record check. In dealing with the decision at first instance of Branson J in Kim and the subsequent appeal, the respondent submitted that the clause is valid. This is so it is argued as it specifies a “circumstance” that must exist for the visa application to be valid under s.46(4) of the Act.
It was noted that Branson J in Kim had made a decision which was claimed to rest on three central propositions. The first was that regulation 2.12(2) “transmogrified” a criterion to be satisfied by an applicant into a criterion to be satisfied as a condition of validity of the application. Branson J it was claimed drew from s.47 a conclusion that “the decision that must be made concerning the validity of an application is intended to be a decision capable of being made without consideration being given to the content of the visa application. Secondly, the condition imposed by regulation 2.12(2) “calls for the making of a judgment by the Minister concerning an issue of some complexity personal to the visa applicant” (paragraph 27 of Branson J in Kim). The absence of the provision of merits review in relation to a decision of the validity of an application suggested that the legislature intended the decision on validity to be based on “objective standards” and not to involve exercise of judgment whose merits would be an appropriate issue for merits review. Thirdly, it was argued the finding by Branson J included that the regulation making power for the purposes of s.48 is only a power to “designate a class of visa”, it is not a power to “determine criteria that must be satisfied for an application for a visa of that class … to be a valid application” (paragraph 31 of Branson J in Kim). The respondent in referring to the application and the applicant issue noted that s.46 expressly provided for the regulations to prescribe both “criteria that must be satisfied” and “circumstances that must exist” for an application to be valid. Those expressions it was argued cannot be construed as applying only to the application rather than the applicant.
It was submitted the regulations made under s.46(3)-(4) operate through sub-s.(1) and it is the provision which renders an application invalid if the prescribed criteria are not satisfied. It was claimed that s.46(1) itself expressly envisages that an application may be invalid as a result of characteristics of the applicant rather than the application itself. The existence of a basic distinction between features of the application and the applicant is further undermined by s.46(1A) which makes an application invalid where the applicant is prevented from applying by a condition attaching to an earlier visa.
It was submitted that compliance with such requirements and the existence or otherwise of “circumstances” prescribed under sub-s.(3) will ordinarily be impossible to ascertain without reference to “content of the visa application” since this would normally be the Department’s main source of information about the applicant and the circumstances in which the application is made. In dealing with the issue of the requirement of a judgment by the Minister, it was submitted that the formation of an opinion by the Minister on a specified issue is that as a matter of ordinary language a “circumstance” or a “criterion” upon which the validity of an application may be made to depend. There is nothing, it was argued, in s.46(3) and (4) which limits their reach to objective criteria. It was noted that it may be inferred that such a limitation does exist according to Branson J in Kim by reference to s.46(1) which “reveals the types of criteria that the legislature intended to affect the validity of an application” (see paragraph 26 of Branson J in Kim). However, it was argued the matters to which Her Honour refers are different from an additional two matters referred to in s.46(1)(b) which picks up the other sub-sections of s.46.
Any exclusion of merits review it was submitted should be understood as reflecting a policy decision by the legislature that the decision reached on matters prescribed at the threshold stage should be conclusive rather than reflecting an understanding of the validity of an application would never depend on an exercise of judgment by the Minister. In the alternative it was argued that in any event the regulation in the current case is distinguishable from that considered by Branson J in Kim in that it is a straightforward process to ascertain whether the regulation has been complied with. In this case it was argued it is a simple process to decide whether there has been satisfactory evidence of the relevant criminal record check by the AFP. It was argued there is no element of evaluative judgment involved.
The Full Court appeal from the decision of Branson J was noted rested upon considerations or an issue raised in a Notice of Contention which was not before the primary Judge. The issue raised was that “Regulation 2.12(2) did not operate to create a condition that must be satisfied for an application comprehended by s.48 to be a valid application” (see Moore J at [17]). It was argued this issue is different to the issue which the applicants now seek to raise. That issue is whether the clause is valid. It was argued that the clause is distinguishable from a regulation which caused concern in Kim. The clause does not relate to a circumstance of an applicant but rather relates to a circumstance of the application. It specifies the application must be accompanied by something namely satisfactory evidence that during the twelve months immediately before the day when the application is made the AFP completed a check of criminal records in relation to the applicant. It was argued the reasoning of the Full Court in Kim does not suggest the invalidity of the clause.
Reasoning
In my view the proper interpretation of the operation of the clause is consistent with the submissions made for and on behalf of the Respondent. That clause simply relates to the circumstances of the application and validly in my view specifies that the application must be accompanied by the satisfactory evidence as indicated that during the twelve months immediately before the day when the application is made the AFP completed a check of criminal records in relation to the applicants.
Schedule 1 of the regulations headed “Classes of Visas” and the note to the heading provides that an application is not made as set out in the schedule is not valid and will not be considered. Section 46(1) clearly provides for an application for a visa is valid if and only if it satisfies the criterion requirements prescribed under the section. Section 46(3) provides the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application and as submitted by the Respondent regulation 2.07(1) provides that for the purpose of s.45 and s.46 of the Act, matters are set out in the relevant part of schedule 1 including the approved form, the charge and “other matters relating to the application”. The other matters relating to the application validly include in my view the requirement that the application be accompanied by satisfactory evidence including the criminal record check by the AFP.
From a practical point of view it seems clear in my view that the certificates obtained by both applicants effectively result in information being provided which is similar to and/or identical with the information which would have been accessed by the AFP had the AFP undertaken the appropriate search. Regrettably, however, the practical outcome is not a matter which then necessarily provides this Court with a basis upon which it can uphold the submissions made in considerable detail on behalf of the applicants.
In my view the decision of Branson J in Kim does not relate to analogous circumstances of the present case for the reasons advanced for and on behalf of the Respondent and is distinguishable. In the present case I accept as submitted by the Respondent that a fairly straightforward process is required to determine whether the regulation is being complied with namely whether or not satisfactory evidence of the relevant criminal record check has been undertaken by the AFP.
I do not see in that analysis any element of judgment being required. It is simply a matter of objectively determining whether the accompanying document had been provided.
Whilst there may be some unease arising from what would appear to be a factual issue readily determined on merit review perhaps in favour of each applicant, that does not of itself mean that the requirement and specifically that the clause is not a valid regulation. It is simply providing a circumstance that must exist for a visa application to be valid under s.46(4) of the Act.
The fact that merit review appears to be excluded simply results in what has been described in the Respondent’s submissions as a threshold stage being conclusive, that is a determination of the validity of the application which does not then require further consideration. In this case the obvious outcome is that the applicants are denied merit review in relation to what could only be described as an unfortunate omission to provide the relevant material. There does not appear to be any evidence of any substantive difficulty arising from the applications as clearly on the material before the Court both applicants do not have any relevant criminal record which would otherwise have prevented the application from proceeding.
It will be evident from these reasons that I have not found it necessary to rely in detail upon the affidavit material some of which was subject to objection. Having found the clause valid and the decision of the delegate free of jurisdictional error, it has not been necessary for me to further consider the affidavit material.
It is noted however and I accept that in relation to the application of Ms Vicheanrattapong that there is a separate and discrete issue which
I accept would otherwise render allowing her application to be futile as another ground clearly open to be considered relates to that applicant, namely that each member of the family unit must be in Australia and hold a substantive visa. It is not necessary for me however in the circumstances to rely upon that further ground though I would do so in the event that my assessment of the validity of the clause is wrong.
Having found that the clause is valid I do not accept the submissions otherwise made for and on behalf of the applicants that the validity of the application could not be objectively determined or that there was any requirement for the Minister or a delegate of the Minister to consider the matter further and make a subjective judgment.
It follows for the reasons given that the application should be dismissed with costs.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 20 May 2005
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