Jacqueline Hamilton and Olive Mary Mcmurray v Minister of Immigration, Local Government and Ethnic Affairs [1993] FCA 657; (1993) 48 FCR 20 (1993) 35 ALD 205 (Extract) (31 December 1993)

FEDERAL COURT OF AUSTRALIA

JACQUELINE HAMILTON and OLIVE MARY McMURRAY v MINISTER FOR IMMIGRATION, LOCAL
GOVERNMENT AND ETHNIC AFFAIRS
No. NG133 of 1993
FED No. 999/93
Number of pages - 33
Immigration - Administrative Law
[1993] FCA 657; (1993) 48 FCR 20
(1993) 35 ALD 205 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BEAZLEY J

CATCHWORDS

Immigration - statutory interpretation - application for permanent resident status - family and close ties (after entry) entry permit - application made on two bases: former resident returning and remaining relative - whether clause construed by reference to its heading - whether applicant required to be nominated as a remaining relative at time application lodged - whether requirement that nomination be in writing mandatory - whether substantial compliance with mandatory provision - denial of procedural fairness - effect of denial of procedural fairness on failure to comply with mandatory provision

Administrative Law - whether applicant given wrong information by Departmental officials - applicant not given relevant explanatory notes - legitimate expectation to receive material - denial of procedural fairness - whether decision unreasonable

Administrative Decisions (Judicial Review) Act 1977

Migration (1993) Regulations Schedule 2, Pt806-Class806: cl806.71, cl806.72

Migration Act 1958, s34

Acts Interpretation Act 1901, s13(3), s15AA(1), s25C, s46(1)

Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 81 ALR 687

Tasker v Fullwood (1978) 1 NSWLR 20

SS Constructions Pty Ltd v Ventura Motors Pty Ltd (1964) VR 229

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648

Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155

Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 326; (1985) 8 FCR 167

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Attorney-General of Hong Kong v Ng Yuen Shiu [1983] UKPC 2; (1983) 2 AC 629

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) 1 KB 223

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation [1990] FCA 139; (1990) 96 ALR 153

HEARING

SYDNEY, 31 December 1993
31:12:1993

Counsel for the Applicants: Mr C J Stevens QC

Solicitors for the Applicants: Turner Freeman

Counsel for the Respondent: Mr B Skinner

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. The application be dismissed.

2. The applicants pay the respondent's costs.
3. I further order that these Orders shall not operate until 31 January
1994.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

BEAZLEY J This is an application brought pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977, to review the decision of a delegate of the Minister refusing the first applicant's (Ms Hamilton's) application for permanent resident status. The second applicant (Mrs McMurray) is the first applicant's mother.

2. Ms Hamilton applied for permanent resident status under the provisions of Pt806-Class806 of Schedule 2 to the Migration (1993) Regulations (the Regulations) on two bases: first, as a former citizen or resident who had close ties with Australia and secondly, as a remaining relative. In her application, Ms Hamilton stated that she preferred to be granted a permit on the first of these bases, that is, as a former citizen or resident with close ties with Australia. On 25 February 1993, Ms Hamilton was advised by a delegate of the Minister that her application had been rejected. Upon Ms Hamilton's request, the delegate reviewed his decision, but on 2 March 1993, confirmed his original decision. The basis of the rejection of the application was that at the time the application was lodged, Ms Hamilton had not been nominated by any person as was required by par806.722(c). The parties agree that it is the decision of 2 March 1993 which is the subject of review: see Calvin v Carr (1979) 53 ALJR 471. It is only that portion of the decision rejecting the application for a permit as a remaining relative which is the subject of the application to the court.

3. Counsel for the applicants submitted that the delegate's decision was wrong in law as, upon the proper construction of cl806.722, the requirement for nomination did not have to be satisfied at the time of application nor did it have to be in writing. He further submitted that the making of the decision involved a breach of procedural fairness and was unreasonable.

Statutory Scheme
4. The statutory scheme which regulated Ms Hamilton's application is set out below. Where necessary, headings to the relevant clauses have been set out in the form in which they appear in the Regulations as the applicants' case depends, in part, upon the proper construction of the Regulations and, in particular, upon whether cl806.722 should be construed by reference to its heading.

5. Section 34 of the Migration Act 1958 (the Act) relevantly provides:

"(3) Where it appears to the Minister that the applicant is,
under the regulations, entitled to be granted an entry
permit of the class concerned, the Minister shall, subject
to this Division, grant the applicant such an entry permit.
(4) Where it appears to the Minister that the applicant is not,
under the regulations, entitled to be granted an entry
permit of the class concerned, the Minister shall refuse to
grant such an entry permit."

6. The relevant Regulations are:

Regulation 1.17:
"The Minister may approve forms for:
(a) use in making an application for an entry permit; or
(b) any other purpose authorised or required by these
Regulations.

Regulation 2.7(1):

"If an application for a visa or an entry permit is to be made in
Australia in respect of a person in custody under the Act, the
application must be lodged at an office of Immigration by leaving
the application at that office with a person employed at that
office and authorised to receive it."

Regulation 2.28:

"(1) Subject to this regulation and regulation 2.7 and to specific
provisions in the relevant Part of Schedule 2 or 3, an application
for an entry permit is in accordance with these Regulations:
(a) in the case of an applicant who applies after entering
Australia:
(i) if the application is in the form specified in the
relevant provision of Schedule 2 or 3; and
(ii) if the relevant fee (if any) has been paid; and
(iii) if the applicant produces to an officer the passport
or other document that was previously produced by the
applicant for the purposes of the applicant's entry to
Australia, or a valid travel document;..."

The relevant provisions of Pt806-Class806 in Schedule 2 to the Regulations are:

PART 806 - CLASS 806
(FAMILY AND OTHER CLOSE TIES (AFTER ENTRY)) ENTRY PERMIT
(PRIMARY PERSON)
806.5 FAMILY AND OTHER CLOSE TIES (AFTER ENTRY) ENTRY PERMIT -
PRELIMINARY
806.51 When and where may application and grant be made?
806.511 A Class 806 entry permit may be applied for and
granted only after entry.
806.52 Period of validity (entry permit - after entry)
806.521 The entry permit has effect without limitation as to
time.
...
806.7 FAMILY AND OTHER CLOSE TIES (AFTER ENTRY) ENTRY PERMIT
(AFTER ENTRY)
806.71 Application (entry permit - after entry)
806.711 The application must be made in accordance with
approved form 887.
806.72 Criteria to be satisfied at time of application (entry
permit - after entry)
806.721 (1) Subject to subclause (2), the applicant is not:
(a) an illegal entrant; or
(b) the holder of a Class 771 (transit) entry
permit.
(2) If the applicant is an illegal entrant, the
applicant is either:
(a) ...
(b) a person who satisfies:
(i) the requirements set out in clause
806.722; and
(ii) illegal entrant criteria 6001, 6002
and 6004.
...
806.722 The applicant is an aged dependant relative, an orphan
relative, a remaining relative or a special need
relative of a person who:
(a) is a settled Australian citizen or a settled
Australian permanent resident; and
(b) is usually resident in Australia; and
(c) has nominated the applicant for the grant of the
entry permit.

7. There is no dispute that Ms Hamilton satisfied subcls806.721(1) and (2)(b)(ii). The question which arises is whether par806.722(c) was satisfied.

Background
8. Ms Hamilton was born in England on 31 May 1947. She first entered Australia in 1974 as did her mother, her sister and her only son. These three persons are resident in Australia and are Australian citizens. Ms Hamilton did not remain in Australia. She returned to Australia in 1992 on a visitor's visa. That visa lapsed and on Thursday 11 February 1993 she was arrested at her mother's home at Green Street, Kogarah. She was in custody at Villawood Detention Centre for a period of time. On Friday 12 February, Ms Hamilton approached a Mr Luciano Basile, whom she understood to be the welfare officer of the Department of Immigration and Ethnic Affairs (the Department) at the Detention Centre, and requested a form to enable her to apply for permanent residence. He provided her with a form numbered 903. After business hours that day, Ms Hamilton examined the form and realised that she had been provided with the wrong form. She was not able to request the correct forms until the following Monday, 15 February, as there were no persons on duty over the weekend who could assist her. On the morning of 15 February, Ms Hamilton saw Mr Basile and advised him that he had given her the incorrect form. He told her he would have to ascertain what form she needed. She saw him make a telephone call, after which he said to her that he had spoken to a Mr Wilson of the Rockdale Compliance Section of the Department, who had said that she needed a form 887. He said that he had informed Mr Wilson that he did not have any form 887's at the Detention Centre and asked him to forward some immediately. The forms did not arrive that day. Shortly after 4:00pm on Tuesday 16 February, Ms Hamilton received a form 887 from an officer at the reception desk at the Detention Centre. However, the form was not accompanied by any explanatory notes. A little time after that, Ms Hamilton saw Mr Basile and told him that she had the form. He provided her with another form 887, a supplementary page and a pamphlet, but no explanatory notes. There is no evidence as to what the supplementary page and pamphlet were. Ms Hamilton said also that there was no copy of the Act or Regulations at the Detention Centre. This was confirmed by Mr Basile. Ms Hamilton said that she studied the forms that evening, but did not know which category she should apply under, that is, whether as a returning permanent resident or remaining relative.

9. On Wednesday 17 February, Ms Hamilton sought assistance from the Legal Aid Commission and also telephoned the Rockdale Compliance Section and requested copies of her passport details from an officer there, Mr Peter Suart. On 18 February, an officer of the Legal Aid Commission visited Ms Hamilton but advised her that legal aid was not available. On Friday 19 February, Ms Hamilton attended Fairfield Local Court, returning at about 3:00pm. In a Statutory Declaration dated 2 March 1993 and lodged with the Department Ms Hamilton stated that she was advised by the Magistrate to seek legal advice before lodging her application. Upon her return from court, she rang Mr Suart and advised him that she was going to lodge her Application for Permanent Residence before the close of business on Monday 22 February 1993, that being the last day on which she could lodge the application in accordance with the Regulations. Mr Suart advised her that at the time she lodged the form she would also have to pay the requisite fee. Ms Hamilton also advised Mr Suart that her mother would be looking at the forms over the weekend. During the course of her cross-examination Ms Hamilton said that it was her intention to have her mother complete the nomination section "had she need to complete it". Ms Hamilton said she prepared her application believing she was a "resident returning, but ticking the portions of the form regarding remaining relative also." The tick to which Ms Hamilton was referring appeared in Question 3 on page 2 of the application form, headed "Family relationship with an Australian citizen or permanent resident," in the box against the entry "Brother, sister or non- dependent child who has no remaining relatives outside Australia." She also ticked another box in Question 3 against the entry "Former citizen or resident who has maintained close ties with Australia".

10. Ms Hamilton's mother visited her at the Detention Centre over the weekend. Ms Hamilton's evidence was that during the course of that visit, she made reference to the nomination portion of the form and said to her mother that there may be some forms for her to sign, but that at that point she was not sure, as she had had no legal advice on the form. Her mother replied that "she could not support me but that she did not want me thrown out of the country and if it had to be signed then she would of course sign it". Ms Hamilton said she told her mother that part of the form said that she might have to nominate her, but in the part of the form which referred to a former permanent resident, there was no reference to nomination and that she would have to see the solicitor (a Mr Howard) on Monday to know whether her mother would be required "to make any signature or not". Ms Hamilton said that her mother replied to this "I can't support you but if it is just a signature that's required...". Ms Hamilton said however that her mother:

"...always talked like this. She didn't want to pay any money.
She is referring to having to pay any money, that is the one thing
that has bothered her because she is having dire financial
difficulties and she says things in that light, in that manner. I
don't think it was specific to any nomination, signature or
whatever."

11. In the course of her cross-examination, Ms Hamilton said that as at Monday 22 February, she wanted to apply:

"under former permanent resident returning to Australia. In fact
I wanted to fill in the categories that may apply to me but that
is the one that I preferred and I had specific reason for that...I
wanted to apply under both grounds...preferably former resident
returning to Australia but if the remaining relative category
applied to me I would put in both categories and left that thing
until I saw Mr Howard to discuss it with him."

12. The reference to "that thing" seems to refer to the completion of the application form in relation to the category of remaining relative. Ms Hamilton said she filled in the form to the best of her ability. She said: "I did not know whether or not which category would be accepted, so I ticked them both and I left them both like that until I got the specific legal advice that I required on that subject." Ms Hamilton saw the solicitor at the Detention Centre after 11 am on Monday 22 February. He gave her some advice, but was not able to give her extensive advice because Ms Hamilton was not able to pay his firm's fees. He did advise her, however, that it was necessary for her to have a nominator, but that she could proceed to lodge the form without that portion being completed. He told her:

"there may be a problem with it because the nomination is not
signed but you can lodge it as it is because there is an
application for former permanent resident returning to Australia.
He said, and you can lodge that form in that way."

Ms Hamilton also said:

"I then repeated that to Mr Basile when he was signing it and he
said the same thing."

13. Ms Hamilton said she received the advice from the solicitor at about midday. Between midday and 1:00pm she took the form to Mr Basile for him to witness her signature. She repeated what the solicitor had told her and said to Mr Basile words to the effect of "The application is not fully completed, my mother has to sign it". Mr Basile said "Well, yes you must get the form in today and you must pay the filing fee. Your main concern must be to lodge the form by 5pm. Anything else needed can be added later." She saw the solicitor again after she saw Mr Basile.

14. Ms Hamilton stated that had her attention been drawn to the need for a nominator to be specified, she would have sought clarification as to what was involved in nomination, but that up to the point of time that she spoke to Mr Basile to witness her signature, no one had explained to her what was involved in nomination. This statement does not sit comfortably with the evidence to which I have just referred, although it may not be inconsistent with it. However, it is not consistent with the following parts of her evidence. In answer to a question put to her by her counsel, she said that at the time that she saw Mr Basile on Monday 22 February, she believed that her mother was willing to nominate her. In answer to a question from me as to whether she had any conversation with her mother about her mother nominating her, she answered:

"I said that this particular part of the form says you might have
to nominate me but at the same time this particular part of the
form says that a former permanent resident - it made no reference
to that. I said I do not know at this stage until I have seen the
solicitor on Monday, whether you would be required to make any
signature or not. I said you may or may not, I don't know".

15. Later under cross-examination she said that she could not recall whether she had used the specific word "nominator". She said that as at Friday 19 February, it was her intention to have her mother complete the nomination portion of the form over the weekend had she need to complete it. She said:

"If I would have had to have gone under that section, then I know
that the mother would have to sign the nomination. I did not know
it was necessary then at the time of lodgement. I had no idea
about that circumstance at all, and indeed I did not know whether
or not I met the grounds of former permanent resident returning to
Australia. As far as I could see from the information that I had
in front of me, I fitted in to that category."

16. She said that so far as she knew her mother did not know there was a distinction between a nomination and an assurance of support until after the application had been lodged. She also said that she, herself, did not know that different forms may have to be signed dependent upon whether a person was nominating or offering to support her. At no time did Ms Hamilton say she was not aware of the distinction between nomination and an assurance of support. She also said that she had not read the portion of the form commencing with Question 88, which was the first question in Section I, the nomination section, as she "did not consider it necessary at the time to read anything that I did not know whether I was going to use it or not". However elsewhere, in both her affidavit and oral evidence, Ms Hamilton said that she "studied the forms" on the evening of Tuesday 16 February; that she "studied the forms on the Wednesday" although she also said "None of it made any sense to me and I could see that I needed legal advice on it," so "it could be said that I would have skimmed through those forms"; and finally, that she "had not studied (the application form)".

17. Other evidence of Ms Hamilton is also confusing. She said that she wasn't aware whether she could apply under both grounds at the same time, because she didn't have any explanatory memorandum, and that it was not until prior to the hearing that she had looked at the explanatory notes and learned that she apparently could apply under both. This evidence however, overlooks the fact that form 887 states, on page 1, under the heading "ABOUT YOUR APPLICATION", that the application is for either an extended eligibility temporary entry permit in the listed categories, or an application for a permanent entry permit in the listed categories, including category 806 "Family and Other Close Ties" and that Ms Hamilton ticked both categories in Question 3. In addition, in cross-examination Ms Hamilton agreed that on Friday 19 February she had in mind two alternative sets of grounds. She also said that at the time her mother visited her at Villawood on the Sunday she had in mind the "possibility of both...sets of grounds. But I did not know which - I did not know the legal position. I assumed I would qualify under both, but I did not know." She also said that when she saw her mother on 21 or 22 February she looked at what she had in front of her and that:

"...I saw former permanent resident returning to Australia, I
understood that I fitted into that category by what I had in front
of me and I saw remaining relative. I understood that I would
also fit into that category by what I had in front of me. But I
didn't know which one so I listed both".

18. Finally she said she was unsure as to what the criteria were for former permanent resident returning to Australia and at the time of lodgement of the application she regarded the application as being under both categories.

19. Mr Basile, who described himself as a welfare officer employed by the Australian Protective Service, recalled that on Monday 22 February he was shown the nomination portion of the form by Ms Hamilton, who pointed out that it had not been completed. It should be noted however, that at one point Ms Hamilton said that Mr Basile did not look at the nomination portion of the form, only the statutory declaration. Mr Basile said that Ms Hamilton said "I have to lodge this application by 5:00pm today. Would you witness my signature?" and that she also said "the application is not fully completed. My mother has to sign it". Mr Basile agreed that he said to Ms Hamilton that she must get the form in that day and must pay the filing fees, that her main concern must be to lodge the form by 5:00pm and that anything else could be added later. However, he denied that in a conversation with Ms Hamilton on 22 February she said that "it may be that my mother has to sign something, I don't know".

20. Mrs McMurray did not sign the nomination portion of the application form until 1 March. The background to her doing so is important. On the occasion of Ms Hamilton's arrest on 11 February, Mr Suart, from the Rockdale branch of the Department, told Mrs McMurray that her daughter would be deported. Mrs McMurray said to him at that time: "What does this mean? That she will be thrown out? I don't want her thrown out, but I can't afford to keep her". Mr Suart said: "Someone has to agree to support her otherwise she will be deported". Mrs McMurray had another conversation with Mr Suart on 16 February in relation to her daughter's citizenship certificate. Mr Suart told Mrs McMurray that he did not want the certificate but Ms Hamilton might. Again, Mrs McMurray raised the question of what would happen to her daughter. They had the following conversation:

Mrs McMurray: "What does this mean? Will she be deported?
Mr Suart: "She will be deported, unless you want to sign for her".
Mrs McMurray: "Does that mean I would have to agree to support her?"
Mr Suart: "Yes"
Mrs McMurray: "Well you know I can't do that...Sign what? You
know I can't support her."

21. Mr Suart then asked a number of questions about other members of Ms Hamilton's family. Finally he said "I would rather not talk any more with you. I have nothing actually to say further to you".

22. Mrs McMurray said she saw her daughter at the Villawood Detention Centre on two occasions. The first was on 14 February and the second was on either 21 or 22 February. On the second occasion, Mrs McMurray had a conversation with her daughter to the following effect:

Ms Hamilton: "There may be some forms for you to sign. I may
need a signature"
Mrs McMurray: "Jacqueline, you know I can't keep you".

Mrs McMurray said that on this occasion she was very upset, that she gave her daughter some money and that she was not shown any forms.

23. On 25 February, after having spoken to her daughter about nomination, Mrs McMurray went to the Rockdale branch of the Department and spoke to a Ms Toman. She told Ms Toman that she had been asked by her daughter to sign a form, that she wanted to see Mr Suart and that she would like to see that form and read it before she signed it. She was informed that Mr Suart was in a meeting. Ms Toman told Mrs McMurray: "There is no form for you to sign because she is being deported tomorrow". Mrs McMurray said "I don't want her thrown out but I am not in a position to support her...". There was then discussion about what would happen if Ms Hamilton paid her own fare.

24. On 26 February, Mr Suart visited Mrs McMurray at her home and said to her: "Are you going to sign the nomination?". Mrs McMurray said: "You know the position. You know why I haven't signed. I can't afford to keep her." Mr Suart then gave Mrs McMurray "the assuramce (sic) of support (form) with a booklet". On 1 March, Mrs McMurray went to the Rockdale branch of the Department with her grandson (Mrs Hamilton's son). It appears that by then Mrs McMurray had become aware that a nomination form was distinct from an assurance of support form as she said to Mr Suart "You didn't say there were two forms. I thought I had to support her". Mr Suart gave Mrs McMurray a nomination form which she then completed. That was the first time she had seen the nomination form. Mrs McMurray said that at all times from the time that her daughter was arrested, if asked, she was willing to sign a nomination form, provided it called for no financial support, and also if asked was willing to be described as "a nominator" to enable her daughter to avoid being deported from Australia. She gave no evidence that she was in fact asked to sign the nomination form and Ms Hamilton said that she did not ask her mother to sign the form before 22 February. In fact, she said that when she saw her mother on 21 or 22 February she did not want her to sign anything.

Form 887
25. Form 887 is the approved form for applications made under Pt806: cl806.71. The front page of form 887 contains the following note:

"IMPORTANT - Please read carefully
Before completing this application, carefully read the
leaflet "Applying to Remain Permanently in Australia" and
the "Explanatory Notes" (Form 887N) which accompany this
form. They will assist you to determine whether you are
eligible to remain permanently in Australia, and if so,
under which categories you should apply
...
Please use BLOCK LETTERS except where a signature is asked
for. If a question is not applicable, write N/A.
...
ABOUT YOUR APPLICATION
...
1. This is an application
AND/OR
2. An application for a
for an extended permanent entry permit
eligibility temporary in the following
entry permit in the categories"
following categories

26. There is then listed under each the various categories of entry permit for which application may be made.

27. Form 887 is a lengthy form, divided into various sections and designed to cater for applications made on a number of different bases. The early part of the form requires the provision of what may be described as "standard information" of name, address, date of birth, country of birth, details of citizenship, usual residence and the like. Ms Hamilton completed these various sections. Page 11 of the form contains directions as to how the balance of the form is to be completed. It advises the applicant that the declaration on page 21 must be signed if the applicant is over 18 years of age. The declaration is a statutory declaration confirming, amongst other things, that the information supplied in the application form is "complete, correct and up-to-date in every detail". Applicants are advised that before signing the declaration on page 21, certain further portions of the form are to be completed, depending upon the ground upon which the application is made. The terms of this direction are:

"All applicants aged 18 years or over must sign the Declaration on
Page 21.
Before doing this, if you are applying:
...
as a remaining relative - complete Section E
and your nominator complete Section I...
If you are applying:
as a former citizen or resident
who has close ties with Australia - Go straight to the Declaration
on Page 21"

28. Ms Hamilton put a large tick and wrote "PREFER THIS CATEGORY" beside the entry for former citizen or resident.

29. Sections A to I inclusive immediately follow the directions page. Ms Hamilton wrote "N/A" in all sections save sections E and I, which she left blank. Section E is entitled "Grounds of being a remaining relative" and contains two questions. Question 59 asks "Do you have any relatives resident overseas? No () Yes () Give details". There then appears a number of blank lines to enable these details to be given. Paragraph 60 states "Enclose a completed "Assurance of Support Form" (Form 28B) (See Section E in the Explanatory Notes)". Section I is the nomination form. At the end of the Section, the following statement appears: "If required the nominator should also complete the form "Assurance of Support", Form 28."

30. It will be recalled that Ms Hamilton did not receive the explanatory notes, prior to lodging the application. The form of the explanatory notes which was tendered in evidence, stated relevantly:

"COMPLETING THE FORM
You must fill in all the relevant sections of the form as
completely as possible. All the information requested is needed
for the purpose of assessing your claim to remain permanently in
Australia.
Any alterations or corrections you make on the form must be
initialled and dated. If you lodge an incomplete form, and/or do
not submit all the required documentation, processing of your
application will be delayed or your application may be rejected.
...
The purpose of these types of entry permits is
explained in detail in the leaflet "Applying to
Remain Permanently in Australia".
This application constitutes an EETEP
application, or a PEPAE application or both an
EETEP and PEPAE application. When you make an
application on this form you will be considered
for the grant of all categories of entry permits
listed at the front of the application.
Following is a summary of who may be granted
these categories of entry permits.
...
Question 3 This question asks you to indicate the basis of
your application. The requirements for each
category of entry permit (and the sub-categories
within these categories) are outlined in the
leaflets "Applying to Remain Permanently in
Australia..." Where necessary, the requirements
are described in greater detail under the
headings referring to the specific sub-categories,
later in these Notes.
You should tick at least one box. If you think
that you fall into more than one of these
sub-categories you may tick more than one box.
SECTION E - GROUNDS OF BEING A REMAINING RELATIVE
You should complete this section if you are a remaining
relative, that is:
. you are the ... child ...of an Australian
citizen or permanent resident who is usually
resident in Australia;
AND
. you ... have no overseas near relative*.
* An "overseas near relative" is a parent,
brother, sister or non-dependant child (or such
a step-relative) who is not an Australian
citizen or permanent resident usually resident
in Australia.
Questions 60 and 61...
...your Australian citizen or permanent resident
relative should provide a nomination by
completing Section I of the application form...
In addition, you must lodge an Assurance of Support Form
28B. See also the leaflet "Assurances of Support" for
further information."

31. It appears that the form of explanatory notes tendered in evidence are not the notes for the form 887 lodged by Ms Hamilton, as Section E of that form contains Questions 59 and 60, not Questions 60 and 61.. However, as these were the notes relied upon by both parties, I shall proceed on the basis that they contain the same information as the notes referable to Ms Hamilton's form 887. Construction of Clause 806.722 - Whether headings included as part of Clause

32. Clause 806.72 states in the form of a heading to the clause:

"Criteria to be satisfied at time of application (entry permit -
after entry)".

33. There is then set out the various criteria which must be satisfied. Counsel for the applicants submitted that the clause could not be construed by reference to the heading, and that upon its proper construction, the criteria specified therein could be complied with at any time up to the time of the decision, as there was no time provision within the clause itself. The provisions of ss13(3), 15AA and 46 of the Acts Interpretation Act 1901 are relevant to this submission. Those sections provide:

"13(3) No marginal note, footnote or endnote to an Act,
and no heading to a section of an Act, shall be
taken to be part of the Act."
"15AA(1) In the interpretation of a provision of an Act,
a construction that would promote the purpose or
object underlying the Act (whether that purpose
or object is expressly stated in the Act or not)
shall be preferred to a construction that would
not promote that purpose or object."
"46(1) Where an Act confers upon any authority power to
make, grant or issue any instrument (including
rules, regulations or by-laws), then:
(a) unless the contrary intention appears,
expressions used in any instrument so
made, granted or issued shall have the
same meanings as in the Act conferring the
power, and this Act shall apply to any
instrument so made, granted or issued as
if it were an Act and as if each such
rule, regulation or by-law were a section
of an Act;...
..."

34. It was submitted that s13(3) applies to the construction of cl806.72 by force of s46. However, s46, unlike s13(3), is subject to a contrary intention appearing in the instrument. In my opinion, even without calling into aid the provisions of s15AA, cl806.72 indicates a contrary intention. The specification that what appears in the clause are "criteria to be satisfied at the time of application" is not in truth a heading at all, but rather an introductory provision to the clause as a whole and is clearly to be read as part of the clause. Section 15AA reinforces my opinion in this regard. The form of cl806.73 also supports this conclusion. That clause is set out in a like form to cl806.72 and bears the heading: "Criteria to be satisfied at time of decision (entry permit - after entry). The two clauses are clearly intended to prescribe criteria which have to be satisfied at different stages of the decision-making process. The relevant time for cl806.72 is the time the application is lodged. Accordingly, Ms Hamilton, at the time of the application, was required to be nominated as "a remaining relative" so as to satisfy the provisions of cl806.722.

Whether nomination has to be in writing
35. Counsel for the applicants submitted that even if cl806.722 was so construed, there was no requirement within cl806.722 that the nomination be in writing. It was submitted that cl806.711 did not require the nomination to be in writing as it regulated applications by the person seeking the grant of the entry permit, not the conduct of a third party, in this instance the nominator. It was further submitted that it was sufficient for the purposes of cl806.72 that the Minister be put on notice that a nominator was available to an applicant. Counsel for the applicants submitted that there had in fact been a nomination by Mrs McMurray which had been notified to the Department prior to or at the time of lodgement of the application.

36. Counsel for the respondent submitted however, that the requirements of the Regulations are mandatory. Relevantly, those mandatory requirements are twofold: the requirement that the application be in approved form 887, which included within it the form of nomination: cl806.711; and the requirement that the applicants be nominated at the time of application: cl806.722. It was submitted, therefore, that the nomination portion of the form had to be in writing and completed at the time the application was lodged.

37. There is no general rule for determining whether a provision is mandatory or directory. Indeed the distinction has been described as "somewhat elusive": Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 81 ALR 687 at 692. It is a matter of looking at the scope, purpose and subject matter of the statute: Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242, 255; TVW Enterprises Ltd v Duffy and Australian Broadcasting Tribunal (No 2) (1985) 7 FCR 172 at 181-2. Pearce and Geddes, in Statutory Interpretation in Australia (3rd Ed at 147) state that in determining whether procedural requirements are mandatory or directory the courts will examine the consequences which flow from requiring strict compliance with the statutory provisions.

38. In my opinion, the provisions of cl806.71 and cl806.722 are mandatory. The scope and purpose of the provisions of the Act and the Regulations under consideration is to provide a scheme of categories of permit for which application may be made. An applicant for a particular category must satisfy the prescribed criteria for that category, otherwise the application must be rejected. This tightly regulated regime clearly indicates that the Regulations have a mandatory operation. In addition, the language of cls806.71 and 806.72 is clear and unambiguous and is expressed in mandatory terms.

39. A statutory provision, although mandatory, may only call for substantial compliance. In Formosa v Secretary, Department of Social Security (supra) Davies and Gummow JJ said at 692 that there was force in the view of Mr J Evans, senior lecturer in Law at Auckland University, in his article "Mandatory and Directory Rules" (1981) 1 Legal Studies 227 at 230-1 that:

"...if a rule, on its correct meaning, is satisfied by
substantial compliance, then the rule may still be properly
described as mandatory in character. This is because the
rule, properly construed, must still be observed, and
non-compliance will be fatal. But, if the consequence of
non-compliance with what is stipulated by the rule (properly
construed) is not to render ineffective the acts in
question, then the stipulation may truly be said to have
been directory and not mandatory in character".

See also Tasker v Fullwood (1978) 1 NSWLR 20 at 23-24; SS Constructions Pty Ltd v Ventura Motors Pty Ltd (1964) VR 229 at 237-8.

40. The provisions of s25C of the Acts Interpretation Act 1901 are also relevant to this issue. That section provides:

"Where an Act prescribes a form, then, unless the contrary
intention appears, strict compliance with the form is not required
and substantial compliance is sufficient."

41. Subject to any contrary intention, s25C applies to forms prescribed by Regulation: s46 of the Acts Interpretation Act. There is nothing in the Act or the Regulations which indicates a contrary intention. It follows therefore that s25C gives content to the mandatory nature of cl806.71, that is, substantial compliance is sufficient. In my opinion, the same position would pertain at common law even if s25C did not apply.

42. However, the requirement that there be substantial compliance with the form does not mean that the nomination does not have to be in writing. It is part of the legislative scheme that the minimum information which the Department requires to determine an application be included in the one form. Not only is the fact of nomination part of the criteria which must be satisfied for the category of "remaining relative", sections E and I of approved form 887 specifically relate to that criterion. Section I must be completed by the nominator, who must also sign a statutory declaration that the information contained in Section I is complete, correct and up-to-date in every detail. Section I is an integral part of the form if the application is made on the ground of "remaining relative". The requirement that the application must be in accordance with the approved form and the fact that the approved form includes the form of nomination means that the legislature intended that the nomination be in writing. It is not to the point to submit, as did counsel for the applicants, that the Regulations were not intended to regulate the conduct of third parties. The responsibility was upon Ms Hamilton to lodge an application in the approved form, which included a section to be completed by the nominator.

43. That leaves for determination what in fact is the central issue in this case, namely, what is sufficient for the purposes of substantial compliance with cls806.71 and 806.72. Before dealing with that issue, it is convenient to deal with the other bases upon which the decision is challenged, namely, that there was a failure to afford procedural fairness and that the decision is manifestly unreasonable.

Procedural Fairness
44. It is trite law that, subject to a clear contrary statutory intention, a decision-maker must act fairly towards a person who is the subject of the decision-making process. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550, Mason J said at 584:

"The law has now developed to a point where it may be accepted
that there is a common law duty to act fairly, in the sense of
according procedural fairness, in the making of administrative
decisions which affect rights, interests and legitimate
expectations, subject only to the clear manifestation of a
contrary statutory intention."

45. The requirement of fairness carries with it flexibility in the application of the rules, having regard to the nature of the power being exercised and the statutory provisions which govern the exercise of the power: Kioa v West (supra) at 563 per Gibbs CJ. As Deane J observed in Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 653:

"the law seems...to be moving towards a conceptually more
satisfying position where common law requirements of procedural
fairness will, in the absence of a clear contrary legislative
intent, be recognised as applying generally to governmental
executive decision-making..."

46. An applicant must have an opportunity to present all the material which could be urged in favour of her or his claim. As a general rule, it is not part of a decision-maker's function to make an applicant's case or even to alert the applicant to omissions in the material presented. In the normal course, an applicant cannot complain if, having been afforded a reasonable opportunity to present his or her case, the material presented is rejected: Kioa v West; Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 513; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481; Daguio v Minister for Immigration and Ethnic Affairs (1986) 71 ALR 173. Nor, in the usual case, as Wilcox J pointed out in Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155, does the decision-maker have any duty of inquiry. Unless the circumstances do give rise to a duty of inquiry there is no obligation to provide assistance or advice as to the best application to be made: Elbourne v Minister of Immigration, Local Government and Ethnic Affairs (1991) 22 ALD 211 at 212.

47. Counsel for the applicants submitted that the applicants had been denied procedural fairness as the Department had given wrong information to Mrs McMurray, who at all times was the person whom Ms Hamilton proposed as her nominator; the Department had failed to provide to Ms Hamilton the explanatory notes prepared by the Department to assist applicants to fill out the application forms; and the Department had wrongly advised the applicant that she could lodge her application form notwithstanding that the nomination form had not been completed or signed.

48. I have already set out the evidence of Mrs McMurray as to what she was told was required of her should she wish her daughter to remain in Australia. That information was wrong. An examination of cl806.73 indicates that Mr. Suart, the officer concerned, may have confused the requirements of that clause with those of cl806.72. Clause 806.73 provides the circumstances in which an applicant, at the time of the decision, may be, or is required, to have provided an assurance of support which has been accepted by the Minister. There is no requirement in the Regulations that the assurance of support be provided by the person who nominated an applicant for the purposes of cl806.72. In Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 326; (1985) 8 FCR 167 Toohey J held that an applicant was entitled to relief where he had been led to believe by statements made to him by Departmental officers that certain information was not material to his application and he thus omitted it. That case did not involve the giving of wrong information as is the case here, nor did Toohey J expressly decide the matter on the basis of procedural fairness. However, in my opinion, the giving of wrong information may clearly amount to a breach of the rules of procedural fairness, although the giving of wrong information, of itself, does not constitute a denial of procedural fairness. It is necessary, in each case, to determine the consequences which flow from the giving of the wrong information. In the present case, there is the additional factor that the wrong information was given, not to Ms Hamilton, who was the applicant for an entry permit, but to her mother. It is thus necessary to determine what effect the giving of the wrong information to Mrs McMurray had on Ms Hamilton's application.

49. It will be remembered that Ms Hamilton saw her mother at the Detention Centre on 21 or 22 February. On that occasion, Ms Hamilton did not request her mother to sign any forms, but told her there may be some forms to sign. She did not specify what those forms were. Mrs McMurray's response was that she could not support her daughter. Ms Hamilton did not show her mother any documents or press for her signature as she was uncertain as to whether she needed her mother to sign and she wanted to wait until she saw a solicitor and obtained legal advice. She had arranged that for Monday 22 February. It is perhaps important at this point to note that the introductory section of the nomination portion of the application form stated "You may also have to complete a separate form, "Assurance of Support," Form 28. (see Explanatory Notes)(emphasis added)." However, notwithstanding this, and notwithstanding Mrs. McMurray's repeated statements that she was not able to support Ms. Hamilton, there is no evidence that this affected the course which Ms Hamilton took in completing the application form. Although Mrs McMurray had been led to believe that by signing for her daughter she would have to pledge to support her, there is no evidence that Mrs McMurray ever told Ms Hamilton that that is what she had been told, or that is what she believed, and as I have said, Mrs McMurray's evidence went no higher than if she had been asked she would have been willing to nominate Ms Hamilton. I should state at this point that although I did not have the advantage of seeing Mrs McMurray in the witness box, I prefer her evidence on this point, which after all was the best material she was prepared to proffer to her solicitors for the purposes of her evidence, to the evidence given by Ms Hamilton, whose evidence as a whole was confusing and contradictory. In my opinion, Ms Hamilton gave every indication that she was rationalising her actions to gain what she perceived to be the most advantageous position for herself. Most significantly, however, Ms Hamilton did not relate her mother's statements about not being able to support her to her willingness or otherwise to sign the nomination form. Rather, her evidence was that her mother was always talking like that. In my opinion, her failure to request her mother to sign the nomination form on the occasion of the second visit was related to Ms Hamilton's wish to have her application considered under the category of former resident returning to Australia, and only if that failed, to have the application considered on the alternative basis of remaining relative. Accordingly, I am of the opinion that the provision of the wrong information to Mrs McMurray did not result in Ms Hamilton being denied procedural fairness.

50. The next question is whether the failure to provide Ms Hamilton with the explanatory notes involved a breach of procedural fairness. As I have said, in the normal course, a decision-maker is not obliged to provide an applicant with assistance or advice. However, in circumstances such as the present, where the Department has introduced a standardised procedure for providing assistance in the form of explanatory notes, which not only bear the same number as the approved form, but which are also referred to in the approved form, an applicant, as a matter of procedural fairness, is entitled to the assistance of those notes. This is so, notwithstanding that there is no statutory obligation upon Departmental officers to provide the notes to intending applicants. Although the directions and explanations in the notes themselves raise some problems, there was a statement in them that if all information requested in the application form was not provided, it might result in the application being refused. Had Ms Hamilton had that information available to her, it may have been sufficient to cause her to act differently in respect of the application form generally, and the nomination form in particular. This is so even though the solicitor did point out that there might be problems with lodging the application without the nomination section completed. The notes also explained the meaning of the category of remaining relative. It is clear that Ms Hamilton had some idea as to what this meant as she considered that it was a possibility that she qualified for this category. Had she had greater certainty as to the requirements of this category, she may also have acted differently in relation to completing the application form. In circumstances such as the present, it is not for the court to speculate as to how a person would have acted in circumstances where there has been a denial of procedural fairness. If it is possible that a person may have acted differently had procedural fairness been accorded, then, subject to the question whether the denial of procedural fairness had any relevant effect, the person is entitled to relief.

51. I have come to this conclusion on the basis that the content of the rules of procedural fairness required that Ms Hamilton be provided with the notes. It was not submitted that Ms Hamilton had a "legitimate expectation" that she would be provided with the notes. However, in my opinion that also provides a satisfactory answer to the applicants' case in this regard. One of the fundamental requirements of good administration is consistency of decision-making: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 644. Likewise, as a general rule, consistency of treatment of persons the subject of administrative action is of primary importance in good administration. Indeed, consistency of treatment in like circumstances is probably best categorised as a constituent ingredient of consistent decision-making. Where a decision-maker has introduced and formalised uniform procedures for persons the subject of the decision-making process, procedural fairness requires that in normal circumstances persons have equal access to those procedures. In the present case, that means Ms Hamilton, along with applicants generally, had a legitimate expectation that she be provided with the explanatory notes which the Department had prepared to assist applicants in the completion of their application forms. The concept of "legitimate expectation" was first propounded by Denning LJ in an obiter statement in Schmidt v Secretary of State for Home Affairs (1969) 2 Ch 149. In Attorney-General General of Hong Kong v Ng Yuen Shiu [1983] UKPC 2; (1983) 2 AC 629 it was held at 637 that a person was entitled to be heard:

"if the authority has, through its officers, acted in a way which
would make it unfair or inconsistent with good administration for
him to be denied such an inquiry."

52. The principle is well established in Australia: see Salemi v MacKellar (No.2) [1977] HCA 26; (1977) 137 CLR 396; Reg v MacKellar; Ex Parte Ratu [1977] HCA 35; (1977) 137 CLR 461; Heatley Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487; FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342; Kioa v West (supra). In Attorney-General (NSW) v Quin (1990) 170 CLR 1 Mason CJ explained the basis of the concept as follows at 20-21:

"It is the presence of a legitimate expectation which conditions
the existence of a claimant's right to procedural fairness and the
corresponding duty of the decision-maker to observe procedural
fairness in the treatment of the claimant's case. The content of
that duty is dependent upon the circumstances of the particular
case, but its existence is determined by reference to legal
principle. So, a legitimate expectation may be created by ... the
existence of a regular practice ...
... although in one sense it means nothing to say that a person
entitled to fair procedures or good administration has a
legitimate expectation of being accorded such treatment, it is
still necessary to identify a relevant legitimate expectation, and
that legitimate expectation may consist of an expectation of a
procedural right, advantage or opportunity...The procedural right
which forms the subject-matter of the legitimate expectation will
not necessarily be the same as the procedure which procedural
fairness or good administration, the duty to accord which is
enlivened by the expectation, will demand. For example...the
expectation of consultation with management through trade unions,
which but for issues of national security would have been a
legitimate expectation, may not necessarily have sufficed to
require that the procedures of consultation be maintained;
procedural fairness or good administration may simply have
demanded that there be a hearing before the practice of
consultation was abandoned. In other cases, the procedural
benefit which is legitimately expected will in fact be that which
fairness or good administration demands should be accorded. So,
in Ng Yuen Shiu the claimant expected, and was entitled to, the
procedure which had been publicly promised."

53. In my opinion, in this case, the legitimate expectation, and the content of the requirements of procedural fairness necessary to fulfil the legitimate expectation, are one and the same, namely Ms Hamilton had a legitimate expectation to be provided with the explanatory notes, and procedural fairness required that they be provided to her. The fact that a governmental agency may be out of stock of, or not have readily available, documents which a person has a legitimate expectation to receive does not render the circumstances unusual so as to cause this requirement of procedural fairness not to apply. Similarly, I am of the opinion that it does not matter that a person may not have known, or may not have realised, that a document such as the explanatory notes was provided to assist applicants with completion of an approved form. It is the fact that the person is deprived of the assistance of a standardised procedure which creates the procedural unfairness.

54. The final basis upon which it was submitted that the applicant was not afforded procedural fairness was that it was alleged that the information provided to Ms Hamilton by Mr Basile that she should lodge the application notwithstanding that the nomination form had not been completed, was wrong. I have already said that the provision of wrong information may involve a denial of procedural fairness. It is always necessary however, when considering this basis of denial of procedural fairness, to ascertain precisely what information was given. Mr Basile agreed with Ms Hamilton's evidence that she told him that the application was "...not fully completed. My mother has to sign it" and that Mr Basile said the most important thing was to get the form in and that anything else could be completed later. However, Mr Basile's comment was made in the context of Ms Hamilton having told Mr Basile that the solicitor had said that she needed a nominator but that she could lodge the form as she had also included in her application the category of former permanent resident returning to Australia. Ms Hamilton's evidence was that Mr Basile had told her the same thing as the solicitor, that is, that she could lodge the form because it included the alternative category. In those circumstances, I am not satisfied that the information given by Mr Basile was wrong or misleading. Accordingly, there is no basis for a finding that Ms Hamilton was denied procedural fairness on the basis of what she was told by Mr Basile.

Unreasonableness
55. An administrative decision may be quashed if the decision is so unreasonable no reasonable person could have come to it: Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) 1 KB 223; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. A decision may also be unreasonable having regard to the manner in which the statutory function or power is exercised: see Prasad v Minister for Immigration and Ethnic Affairs (supra). However, for the same reasons that I have concluded that Mr Suart's conduct in providing wrong information did not constitute a denial of procedural fairness, and that the statements of Mr Basile were not wrong or misleading, I do not consider that the decision-making process was manifestly unreasonable.

Whether nomination form must be in writing at the time application lodged; substantial compliance
56. It does not necessarily follow that because there has been procedural unfairness in the decision-making process the decision is thereby vitiated. In Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation [1990] FCA 139; (1990) 96 ALR 153 Gummow J said at 170:

"What is the position if there has been a denial of procedural
fairness but this appears to have made no difference to the
result? The law appears still to be uncertain, some decisions
appearing to proceed on the footing that in such a case there is
no ground for relief, and other decisions proceeding on the
footing that there is jurisdiction to grant relief, but that in
its discretion the court may refuse relief as not being of
sufficient utility: see de Smith's Judicial Review of
Administrative Action, 4th Ed, 1980, pp 243-5; Allars,
Introduction to Australian Administrative Law, 1990, paras
6.93-6.96. However, when considering this question as it arises
in proceedings under the ADJR Act, it should be borne in mind that
the remedial powers of the court under s16 of the ADJR Act are all
couched in the terms of discretion."

57. In the present case, whether the decision should be set aside for the Department's failure to provide the explanatory notes will depend upon the effect that the denial of procedural fairness had upon the applicant having regard to the requirements of the statutory scheme. It is convenient at this point to return to the questions of whether the requirement that the nomination form be in writing is a requirement which can be fulfilled only at the time the application is lodged and whether the extent to which Ms Hamilton completed the application form constituted sufficient compliance with cl806.721.

58. In Formosa v Secretary, Department of Social Security (supra), Davies and Gummow JJ discussed the problems which might arise if a strict interpretation was given to a statutory requirement that an application be in an approved form. Their Honours used as an example the inadvertent provision of the wrong form to an applicant by a Departmental officer. Their Honours said at 693:

"It would be ..a curious result if the claimant were to suffer, as
a result of inadvertence within the Department, for the claimant's
failure to comply with the requirements spelled out in (the
section).
...
The answer may be suggested by those authorities which show that
given requirements may be mandatory as to some of the integers
therein and directory as to others...In this way the claimant
would not fail because the claim had been lodged at what it
transpired was not an approved place or with a person not approved
by the Secretary because these integers in (the section) were
directory rather than mandatory."

59. Counsel for the applicants gave an example which, he submitted, indicated that the legislature could not have intended that the failure to complete the nomination form at the time of the application would be fatal to an applicant's case. He said that persons might arrive in the far north of Australia without entry permits and be taken to the Port Headland Detention Centre. A person may be prepared to nominate a particular applicant, but may be in one of the southern states so that it was not possible, within the time constraints provided for the lodgement of an application, to complete the nomination form. Counsel submitted it would be extraordinary if in that circumstance the application could be defeated by the tyranny of distance. Other examples may be cited. What if normally it was possible in such a situation to post the relevant form to the nominator and have it returned within the time permitted for lodgement, but there was a postal strike or an airline strike, which prevented that being done. However, it is not necessary to discuss such examples. The circumstances of this case, in which the applicant was denied procedural fairness, sufficiently throw up the problem.

60. I have already found that the requirement in cl806.711 that the application be made in accordance with the approved form is mandatory. Section 25C of the Acts Interpretation Act gives content to its mandatory nature, that is, substantial compliance is sufficient. What constitutes sufficient compliance must depend upon the circumstances of each case. In other words, there is no standard measure of substantial compliance. In the present case, the particular circumstances to which regard must be had are those which resulted in Ms Hamilton not being afforded procedural fairness, and in particular, the statement in the explanatory notes that the failure to complete the form may result in the application being rejected, and the fuller explanation of the category of remaining relative. Another relevant factor is that Ms Hamilton placed great emphasis upon the statement of the Magistrate that she should obtain legal advice before lodging the forms.

61. It will be remembered that no part of the nomination portion of the application form was completed at the time the application form was lodged. The only noteworthy aspect of it was that Ms Hamilton had not ruled it through with the notation "N/A". Significantly, however, Ms Hamilton did not complete Section E, which was the section she was to complete if applying for the category of "remaining relative", although she did not rule this portion through with the notation "N/A", either. The approved form itself contained a clear direction that if an applicant was applying as a remaining relative, the applicant should complete section E and the nominator was to complete section I. Save for the absence of the notation "N/A" in sections E and I the only indication in the application form as lodged to indicate to the decision-maker that Ms Hamilton was also applying under the category of "remaining relative", was the tick in the box beside the entry for "remaining relative" in Question 3. In my opinion, for there to have been substantial compliance, something more than this was necessary. There were a number of ways in which Ms Hamilton could have substantially complied with the approved form in the circumstances which confronted her. She could have completed section E. She gave no explanation as to why she did not complete section E. It is noteworthy in this context that in another portion of the form, dealing with her employment history, she at least wrote "Information to Follow" and did not leave the space blank. She could have had her mother complete section I but had that portion of the form qualified by a statement that the nomination was only intended to operate on condition that Mrs McMurray was not required to support her daughter. Alternatively, she could have had her mother complete section I, leaving only the statutory declaration form blank. None of these things were done. It is not necessary for me to determine whether any or all of these would have been sufficient in the circumstances to constitute substantial compliance. It is sufficient to find that the absence of any information in the form, other than the failure to rule sections E and I through with the notation "N/A", and the tick in Question 3 did not constitute substantial compliance. Mrs McMurray was never asked to sign the form, nor did Ms Hamilton ever request her to nominate her. In my opinion, the failure to complete the form was not caused by the absence of the explanatory notes, rather it sprang from Ms Hamilton's wish to have her application determined under the category of "former resident who has maintained close ties with Australia" but that if that application failed she wanted to have her application considered under the alternative category of "remaining relative", and that at all times she was determined to get legal advice on the form before lodging it.

62. Even if I am wrong in this regard, I am of the opinion that there is no evidence to indicate that, as at the date of application, the Department knew that Mrs McMurray would act as nominator. The highest that the evidence reaches in this regard is that Mrs McMurray had advised Mr Suart that she did not want her daughter to be thrown out. Further, Mrs McMurray was not asked to nominate her daughter, so that the position was that as at the date of lodgement of the application form, there was no person who had nominated Ms Hamilton as required by cl807.722(c).

63. Accordingly, I order that the application be dismissed with costs.