Pradabsuk v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 66 (17 May 2006)

Last Updated: 17 May 2006

FEDERAL COURT OF AUSTRALIA

Pradabsuk v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] FCAFC 66

MIGRATION – visa application – whether there can be substantial compliance with the requirement to provide satisfactory evidence that the Australian Federal Police has completed a check of criminal records – whether certificate furnished by the Western Australian Police Service comprised satisfactory evidence of criminal records check – appeal dismissed


Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 45, 46, 46(1), 47
Acts Interpretation Act 1901 (Cth) s 23C
Migration Regulations 1994 (Cth) reg 2.07, Sch 1 cl 1128CA, cl 1128CA(3)(d), cl 1128CA(3)(d)(ii)


Kim v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 82 ALD 51 distinguished
Minister for Immigration & Multicultural and Indigenous Affairs v Kim [2004] FCAFC 329; (2004) 141 FCR 315 distinguished
Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 applied
Minister for Immigration and Multicultural Affairs v Li [2000] FCA 1456; (2000) 103 FCR 486 cited
Bal v Minister for Immigration and Multicultural Affairs [2002] FCAFC 189; (2002) 189 ALR 566 cited
Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 46 FCR 117 cited







SUPAPORN PRADABSUK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
WAD 137 OF 2005

RATCHANEE VICHEANARATTANAPONG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
WAD 138 OF 2005



FRENCH, STONE & SIOPIS JJ
17 MAY 2006
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 137 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SUPAPORN PRADABSUK Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGES:	FRENCH, STONE & SIOPIS JJ
DATE OF ORDER:	17 MAY 2006
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1 The appeal is dismissed.
2 The appellant is to pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 138 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	RATCHANEE VICHEANARATTANAPONG Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGES:	FRENCH, STONE & SIOPIS JJ
DATE OF ORDER:	17 MAY 2006
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1 The appeal is dismissed.
2 The appellant is to pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 137 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SUPAPORN PRADABSUK Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
		WAD 138 OF 2005
BETWEEN:	RATCHANEE VICHEANARATTANAPONG Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGES:	FRENCH, STONE & SIOPIS JJ
DATE:	17 MAY 2006
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

1 In December 2003 each of the appellants, Ms Ratchanee Vicheanarattanapong and Ms Supaporn Pradabsuk held temporary visas which expired on 27 December 2003 and 20 December 2003 respectively. In mid December 2003 each appellant applied for a Skilled Independent Overseas Student (Class DD) Subclass 880 Permanent Visa. Included with each visa application was a National Police Certificate obtained from the Western Australian Police Service certifying that the relevant appellant’s name did not appear on the ‘disclosable court history records of any Australian Police Jurisdiction’. Each application was rejected by a delegate of the respondent as invalid. The decision in respect of Ms Vicheanarattanapong’s application was made on 2 January 2004, and in respect of Ms Pradabsuk‘s application, on 6 January 2004. In each case the advice from the delegate stated the reason for invalidity as follows:

‘The applicant and each member of the 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 website).’

2 In the case of Miss Pradabsuk the delegate added:

‘You have submitted a police clearance from the Western Australian Police Service.’

3 In addition, the advice received by Ms Vicheanarattanapong indicated that she had not met the requirement that ‘the applicant and each member of the family unit must be in Australia and hold a substantive visa’.

4 There is no suggestion, and there has never been any, that information in the National Police Certificate was inaccurate, or that either of the appellants has or had at the material time a criminal record.

5 Each of the appellants filed an application under s 39B of the Judiciary Act 1903 (Cth) in the Federal Magistrates Court seeking judicial review of the decision of the delegate. By a decision delivered on 20 May 2005 the Federal Magistrate upheld the delegate’s decision that each of the visa applications was invalid. The appellants appeal from the decision of the Federal Magistrate. Save in relation to one discrete issue affecting Ms Vicheanarattanapong, the two appeals raise the same issues.

6 For the reasons set out below we are of the view that each of the appeals should be dismissed.

Statutory Framework

7 Section 46 of the Migration Act 1958 (Cth) (‘the Act’) as it applied at the time that the appellants made their respective applications for a visa, provided as follows:

‘(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
(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
(c) any fees payable in respect of it under the regulations have been paid;
...

(2) An application for a visa is valid if:
(a) it is an application for a visa of a class prescribed for the purposes of this subsection; and
(b) under the regulations, the application is taken to have been validly made.

(3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.

(4) Without limiting subsection (3), the regulations may also prescribe:
(a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b) how an application for a visa of a specified class must be made; and
(c) where an application for a visa of a specified class must be made; and
(d) where an applicant must be when an application for a visa of a specified class is made.’

8 Section 47 of the Act provides:

‘(1) The Minister is to consider a valid application for a visa.

(2) The requirement to consider an application for a visa continues until:
(a) the application is withdrawn; or
(b) the Minister grants or refuses to grant the visa; or
...

(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.

(4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.’

9 Regulation 2.07 of the Migration Regulations 1994 (Cth) (‘the Regulations’) deals with applications for visas. In particular, it provides:

‘(1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
(a) the approved form (if any) to be completed by an applicant;
(b) the visa application charge (if any) payable in relation to an application;
(c) other matters relating to the application.

(3) An applicant must complete an approved form in accordance with any directions on it.

(4) An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:
(a) in the form; or
(b) in a separate document that accompanies the application.’

10 Clause 1128CA of Sch 1 of the Regulations applied to the visa application made by each of the appellants. At the relevant time, the clause provided:

‘(1) Form: 47SK
...
(3) Other:
...
(d) Application must be accompanied by satisfactory evidence that:

(i) the applicant has undergone a medical examination, for the purpose of the application...; and
(ii) for an applicant who is at least 16 years old – during the 12 months immediately before the day when the application is made, the Australian Federal Police completed a check of criminal records in relation to the applicant.
(e) Applicant must be:
...
(iii) a person to whom paragraph (f) applies.
(f) This paragraph applies to an applicant who is the holder of a substantive visa...’

11 There has been a subsequent amendment to cl 1128CA(3)(d) of Sch 1 of the Regulations, and since 1 July 2005 the clause has provided:

‘Application must be accompanied by a declaration by the applicant seeking to satisfy the primary criteria that:

(i) all persons included in the application have undergone a medical examination for the purposes of the application, ...; and
(ii) each applicant who is at least 16 years old has applied for an Australian Federal Police check in relation to the applicant during the 12 months immediately before the day when the application is made.’

The proceedings before the Federal Magistrate

12 The application for judicial review of the delegate’s decision made by Ms Vicheanarattanapong before the Federal Magistrate claimed:

‘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 s31(3) of the Migration Act nor did the clause specify a circumstance within s40(1) of the said Act.

1C. An order that the Court determine within s39B(1A)(c) of the Judiciary Act 1903 (Cth) and s483A 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 2003 for a Subclass 880 Visa according to law.’

13 The application by Ms Pradabsuk was to like effect, save that she did not claim the relief set out in par 1A above.

14 The National Police Certificates which were supplied by the appellants as part of their visa applications were in evidence before the Federal Magistrate. The documents are on the letterhead of the Western Australian Police Service and were headed ‘NATIONAL POLICE CERTIFICATE’. Using as an example, the certificate issued to Ms Pradabsuk, they relevantly read as follows:

‘This is to certify that the name of:
Surname Given Names Date of Birth
PRADABSUK SUPAPORN 01/05/1977
Does NOT APPEAR on the disclosable court history records of any Australian Police Jurisdiction.
...
M Coster [signed]
M. Coster [printed]
Sergeant

Advisory Notes

1. Disclosable court history are those court convictions that can be disclosed in compliance with various State and Commonwealth legislation, and/or the policies governing the disclosure of convictions by police jurisdictions.
...’

15 There was before the Federal Magistrate affidavit evidence from Police Sergeant Coster who, at the relevant time, was Officer in Charge of the Offender Information Bureau at the headquarters of the Western Australian Police Service. Police Sergeant Coster explained the process undertaken by a police officer in order to issue a National Police Certificate. He said that an officer makes an inquiry of a national database. That database is linked to an ‘entity’ (sic) in Canberra known as ‘CrimTrac’. This entity, he said, ‘was established as an executive agency under the Public Service Act...on 1 July 2000’. He said that an inquiry of ‘CrimTrac’ constitutes an inquiry of police criminal record systems in all Australian police jurisdictions, including an inquiry of all criminal records of the Australian Federal Police (‘AFP’). Prior to the introduction of the National Police Certificate by the Western Australian Police Service on 7 February 2003 an agreement was reached with the AFP, the effect of which is that the AFP will not provide a National Police Certificate to applicants in Western Australia. Police Sergeant Coster went on to say that he believed that if an inquiry was made of the AFP in Western Australia that person would be referred to the Western Australian Police Service.

16 There was also evidence before the Federal Magistrate from Mr Alan Ross a Detective Superintendent of the AFP who at the relevant time held the position of Coordinator, Criminal Records. In summary Detective Superintendent Ross deposed that whilst the AFP may not provide criminal record checks to be used to satisfy the requirements imposed by the States, the AFP did provide record checks in matters associated with protecting Commonwealth interests, such as in relation to visa applications. There is a form, Form 1101, which was freely available from the AFP for obtaining a criminal history check. He also said the AFP check provided in respect of visa applications would not be confined to a search of criminal records on CrimTrac. It would also include, for example, search of spent convictions records. There was, therefore, a difference in the inquiries that would be made by the AFP and the State police services in respect of a check carried out for visa application purposes.

17 The Federal Magistrate acknowledges at [12] of his reasons that the respondent relied on the affidavit of Detective Superintendent Ross, but he does not refer to the content of the evidence of Detective Superintendent Ross in his reasons for decision

18 Further, there was evidence before the Federal Magistrate from Mr John Pass the migration agent of Ms Vicheanarattanapong, that an officer of the Department of Immigration and Multicultural and Indigenous Affairs (‘the department’), named ‘Chris’, advised him on 19 December 2003, that the National Police Certificate document included in Ms Vicheanarattanapong’s application was not a ‘Federal Police clearance’, and that the departmental officer agreed to hold the application until Mr Pass obtained the ‘correct AFP clearance’. Mr Pass said that he contacted the AFP on 22 December 2003 and that he received ‘Federal Police clearance’ certificates carrying the date 30 December 2003, in his office on 7 January 2004. He faxed them to the department on that day.

19 There was also an affidavit sworn 8 July 2004 from Mr Kris Palumbo, an officer from the department, saying that he recalled having had a conversation with Mr Pass ‘most likely’ in December 2003 in relation to Ms Vicheanarattanapong’s visa application. However, Mr Palumbo said that he did not recall telling Mr Pass that he or the department would hold the visa application until the ‘correct police clearance was obtained’. Although the affidavit of Mr Palumbo is included in the appeal papers it does not appear to have been referred to in the Federal Magistrate’s reasons as having been relied upon by the respondent.

20 On 20 May 2005 the Federal Magistrate dismissed each of the applications for review.

21 The Federal Magistrate rejected the appellants’ argument, that cl 1128CA(3)(d)(ii) of Sch 1 of the Regulations (‘cl 1128CA(3)(d)(ii)’) was ultra vires the Act and therefore invalid. Relying upon the decisions in Kim v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 82 ALD 51 (per Branson J) and on appeal, Minister for Immigration and Multicultural and Indigenous Affairs v Kim [2004] FCAFC 329; (2004) 141 FCR 315 (FC) (‘Kim’) the appellants, had submitted that the requirement in cl 1128CA(3)(d)(ii), meant that the Minister had to make a subjective evaluative judgment as to the nature of the evidence submitted by a visa applicant, and that the regulation was therefore ultra vires the Act. The Federal Magistrate distinguished the circumstances in Kim. He held that cl 1128CA(3)(d)(ii) required a ‘fairly straightforward process’ to determine whether there was satisfactory evidence of the relevant criminal record check having been undertaken by the AFP. It was, he said, ‘simply a matter of objectively determining whether the accompanying document had been provided’.

22 Secondly, the Federal Magistrate held that on the proper construction of cl 1128CA(3)(d)(ii) it was necessary for the appellants to provide satisfactory evidence of the criminal record check having been undertaken by the AFP. The certificates which had been provided did not constitute satisfactory evidence of that fact because each showed that the respective checks were undertaken by the Western Australian Police Service and not the AFP. The Federal Magistrate said that s 46(1) of the Act clearly provides that ‘an application for a visa is valid if and only if it satisfies the criterion requirements prescribed under the section’. It did not matter, said the Federal Magistrate, that the information provided by the National Police Certificates would have been ‘similar to and/or identical with the information which would have been accessed by the AFP had the AFP undertaken the appropriate search’. Accordingly, the Federal Magistrate held that the delegate had not committed jurisdictional error in finding that each application was invalid on the grounds that it was not accompanied by a certificate issued by the AFP.

23 The Federal Magistrate made no express findings in relation to the evidence of Mr Pass about his conversation with Mr Palumbo to the effect that Mr Palumbo would hold the application until a police clearance from the AFP was obtained. The Federal Magistrate said at [73]-[74] of his reasons:

‘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 Vicheanarattanapong 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.’

Notice of appeal

24 On 9 June 2005, each of the appellants filed a notice of appeal appealing from the whole of the judgment of the Federal Magistrate. The grounds of appeal that are common to both appellants are as follows:

‘The learned Federal Magistrate erred in failing to hold that the decision of the delegate of the Respondent of...January 2004 (that the application by the Appellant for a subclass 880 visa was not a valid application within s 46(1) Migration Act 1958 (Cth) because it was not "accompanied by satisfactory evidence that...(ii) during the twelve months immediately before the day on which the application [was] made, the Australian Federal Police had completed a check of criminal records in relation to the Applicant..." as required by ss 46(1)(b) and Migration (1994) Regulations Schedule 1 Cl 1128CA(3)(d)(ii)) involved a jurisdictional error because it was:

(a) a decision based on a fact that did not exist;

(b) a decision that was so unreasonable that it was not authorised by the Migration Act or the Regulations on their proper construction;

(c) a decision that was not supported by, and was against the evidence;

(d) a decision that involved an error of law being the erroneous conclusion that the requirement of cl 1128CA(3)(d)(ii) was valid as prescribing a circumstance that must exist, being a circumstance defined by reference to the subjective state of mind of the decision-maker on a substantive question affecting the entitlement of the visa Applicant to the visa which would be subject to merits review on a decision being made to refuse to grant the visa.’

25 The notice of appeal filed by Ms Vicheanarattanapong contained the following additional ground:

‘(e) a decision that was made peremptorily and in the face of a request by the Appellant that the making of the decision be delayed to enable the Appellant to obtain the information purportedly required by the Regulation.’

The further evidence of Mr John Pass

26 At the commencement of the hearing, the appellants also sought to tender further evidence in the form of an affidavit by Mr John Pass sworn 8 November 2005. Mr Pass acted as the migration agent on behalf of each of the appellants at the material time. The affidavit was admitted into evidence on a provisional basis and the Court indicated that its admissibility would be ruled upon in these reasons. The proposed evidence of Mr Pass is to the effect that had the appellants been able to apply for the visa between 29 April 2004 and 30 June 2004 they would only have been required to lodge proof that an AFP clearance had been sought. Mr Pass exhibited to his affidavit an extract of information that was available as from 15 October 2004 on the website of the department which stated:

‘AFP Clearances for Onshore General Skilled Migration

Extension of time

The following information is relevant to people intending to lodge an application for an onshore skilled visa between 29 April 2004 and 30 June 2004* where an Australian Federal Police clearance is a requirement to lodge a valid application.

* Note: This concession has been extended to 2 April 2005.

Where an application for an onshore skilled visa is lodged, which satisfies all other schedule 1 criteria and also includes proof that an AFP clearance has been applied for, that application will be deemed to meet schedule one criteria and should be accepted.

...

(Last update: 15 October 2004 at 15:07 AEST)’

27 Mr Pass goes on to depose that those arrangements were further extended until 30 June 2005. Thereafter, the amendments to cl 1128CA(3)(d)(ii) which are referred to above became effective.

28 Counsel for the appellants submitted that the evidence of Mr Pass was relevant because it establishes that the respondent does not apply a unilateral meaning to cl 1128CA(3)(d)(ii), and supports their submission that each of the delegates acted unreasonably in rejecting the visa applications as being invalid.

29 In our view, the evidence is irrelevant and is not admissible. What the position was six months after each of the appellants applied for their respective visas can have no bearing upon whether the delegates acted lawfully at the time that the delegates made their respective decisions in relation to the validity of the visa applications.

The parties’ submissions

30 There are four main arguments advanced in support of the appeal grounds that are common to both appellants.

31 Firstly, the appellants submitted that, when construed by reference to the intention of the Act and the Regulations, there could be sufficient compliance with the requirements set out in cl 1128CA(3)(d)(ii) if there was ‘substantial compliance’ with the requirements of that clause. Counsel for the appellants submitted that support for his submission is to be derived from the fact that the Act requires that the visa application is to be made on an approved form, namely, Form 47SK, which must be completed in accordance with directions on it, and s 23C of the Acts Interpretation Act 1901 (Cth) is to the effect that strict compliance with the form is not required unless the contrary intention appears. Counsel submitted further that if the provision of the National Police Certificate did not constitute strict compliance with the clause, it constituted substantial compliance and this was sufficient.

32 Secondly, the appellants submitted that the delegate and the Federal Magistrate had erred in construing cl 1128CA(3)(d)(ii) to mean that only a certificate issued by the AFP could comprise ‘satisfactory evidence’ that the AFP completed a check of criminal records in relation to the applicant for a visa. Counsel submitted that, on its proper construction, cl 1128CA(3)(d)(ii) does not provide for the provision of a certificate issued by the AFP as the exclusive means of evidencing the specified event. The appellants submitted that there can still be compliance with the regulations if satisfactory evidence is given of the search of the records having been undertaken by another party. In this case, provision of a National Police Certificate issued by the Western Australian Police Service was capable of constituting the requisite ‘satisfactory evidence’ on the basis that the certificate evidenced a search of the records of all police agencies (including the AFP) made by an agent authorised by the AFP to do so.

33 Thirdly, the appellants submitted that the decision of the delegate had been so unreasonable as not to comprise a decision that could lawfully be made under the Act. The appellants also submitted that the department acted inconsistently in the way the requirements in cl 1128CA(3)(d)(ii) were enforced, and reliance could be placed on this inconsistent conduct to impugn the decision of the delegate on the ground of it being unreasonable.

34 Fourthly, the appellants repeated the submission made before the Federal Magistrate that cl 1128CA(3)(d)(ii) was invalid in that it called for the making of a subjective evaluation of the application by the Minister, and so would, on the basis of observations made in Kim, be ultra vires the Act.

35 Counsel for the respondent submitted that the construction accorded to cl 1128CA(3)(d)(ii) by the delegate and the Federal Magistrate of the statutory provisions was correct. There was no other way by which the requirements of that clause could be satisfied other than by providing some certification from the AFP that it had completed a check. In other words, the only means whereby the requirements could be complied with was by way of direct evidence from a member of the AFP. The evidence which had to be provided was that the requisite check of criminal records had been carried out by the AFP. It was not good enough that a certificate was provided by a party other than the AFP.

36 Further, counsel for the respondent referred to the evidence of Detective Superintendent Ross and submitted that for the purposes of providing information in relation to a visa application, the AFP would undertake a wider search of its records than that undertaken by a State police force, which would be limited to a search of criminal records.

37 Counsel for the respondent also submitted that the evidence as to arrangements whereby each of the AFP and the State police forces search the same database, namely, Crim Trac in providing a criminal record check, was not before the delegate. Counsel submitted that the National Police Certificate, which accompanied each of the visa applications did not refer to this fact, and was therefore not satisfactory evidence.

38 Counsel for the respondent supported the Federal Magistrate’s observations that Kim was distinguishable. Counsel submitted that the assessment which was required to be made pursuant to the provisions of cl 1128CA(3)(d)(ii) was distinguishable from the regulations under consideration in Kim. In Kim, the Full Court had held that the Act does not authorise a regulation that suspends the assessment of the validity of the application by reference to an opinion of the Minister which cannot exist until some time after the making of the visa application. In this case, however, the assessment could be made at the time of the making of the visa application and was fairly straightforward. Counsel submitted that the Federal Magistrate was correct in concluding that there is no element of judgment but simply a matter of objectively determining whether the accompanying evidence had been provided. This, said counsel, could be assessed at the time of the application and did not require a subsequent subjective evaluation by the Minister.

39 Further, counsel for the respondent submitted that the decision of the delegate could not be characterised as unreasonable. He submitted that there could be no reliance on the respondent’s alleged inconsistent conduct to attack the delegate’s decisions. Further, said counsel, the fact that the respondent may have adopted a literal approach to the requirements of the regulation could not establish unreasonableness.

40 In relation to the issue affecting Ms Vicheanarattanapong alone, her counsel submitted that there was no statutory requirement for the departmental officer to make the decision concerning this appellant’s visa application on 2 January 2004. Counsel further submitted that this Court should make findings of fact that an undertaking was given to Mr Pass by Mr Palumbo that the department would hold the visa application and not make a decision until Mr Pass could obtain an AFP clearance. Counsel further submitted that the Court should find that the making of the decision by the delegate without giving the appellant a further opportunity to be heard constituted denial of procedural fairness, and that the decision was, therefore, invalid.

41 Counsel for the respondent submitted that the evidence of Mr Palumbo was in effect a denial that any undertaking alleged by the appellant was given. Further, he said that the Federal Magistrate did not appear to have regarded it as necessary to resolve the factual issue, because he had resolved the main issue against the appellant. Counsel further submitted that the regulation required that the visa application must be ‘accompanied’ by satisfactory evidence of the criminal record check, which meant that the document must ‘go with’ the relevant application form. Therefore, it was necessary for a certificate issued by the AFP to have been provided with the application form when the application was made. Counsel submitted that even if the alleged representation by the departmental officer was found to have been made, that representation could not override the requirements of the legislation. Accordingly, it could not avail the appellant because by the time she had obtained the AFP certificate on 7 January 2004, she no longer met the requirement that she hold a substantive visa because her visa had expired on 27 December 2003. In those circumstances it was said that the appellant could show no practical injustice.

Reasoning

42 We deal firstly, with the appellants’ argument in relation to ‘substantial compliance’. The clause in question imposes a requirement for the provision of ‘satisfactory evidence’ of the occurrence of a prescribed event, namely, the completion by the AFP of a check of criminal records in relation to the visa applicant. As the terms of the clause require no more than the provision of satisfactory evidence of the prescribed event, they contain their own flexibility as to what would constitute compliance. Accordingly, we understand that the gravamen of the appellants’ argument is addressed to whether the concept of ‘substantial compliance’ can be applied to the acts comprising the prescribed event.

43 The question of whether ‘substantial compliance’ can be sufficient compliance with the statutory requirements for the making of a valid visa application, imposed by, and pursuant to, ss 45-47 of the Act, has been considered by the Full Court on previous occasions.

44 In the case of Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 at 278 R D Nicholson J, with whom Jenkinson J agreed, said:

‘Particular features of ss 45-47 of the Migration Act relevant to a proper construction of them are: s 45(1) asserts that a non-citizen "must" apply for a visa of a particular class. Section 46 introduces the notion of validity as attaching to an application only in certain circumstances, indeed "if, and only if" certain requirements are met. One such condition is that the application is made in the way required by ss 45(2) and (3), that is as provided for in r 207. Section 47(1) confines the Minister to only considering a valid application for a visa. Section 47(3), "to avoid doubt", enacts, that the Minister is not to consider an application that is not a valid application. How much plainer could Parliament have made its intention that an application in the required manner is an essential precondition to the Minister, as the relevant decision-maker, exercising the power to consider and grant a visa? By linking the concept of validity to the use of Form 866, Parliament has spelt out that the use of that Form is of such importance to the general object of the legislation in this respect that it is incapable of partial compliance; to disregard it is to imperil validity of a ministerial Act...’

45 Carr J at 261 in Wu made observations to similar effect. These observations were approved by a subsequent Full Court in Minister for Immigration and Multicultural Affairs v Li [2000] FCA 1456; (2000) 103 FCR 486 (‘Li’). We agree with the observations made in Wu and Li.

46 In Wu, the Full Court distinguished between the requirement that the visa application be made on a specific form and the obligation to complete the form in accordance with the stated directions. As has already been noted, the Full Court held that in relation to the requirement to use the prescribed form there was no room for any ‘partial compliance’ with the requirements of the section. However, R D Nicholson J (with whom Jenkinson J agreed) held that substantial compliance would be sufficient in relation to the manner in which the prescribed form is completed. That distinction has been observed and followed in subsequent cases (see, for example, Bal v Minister for Immigration and Multicultural Affairs [2002] FCAFC 189; (2002) 189 ALR 566).

47 The requirement specified in cl 1128CA(3)(d)(ii), is not to be equated with the duty to complete a form in accordance with the stated directions - in respect of which ‘substantial compliance’ will be sufficient. In our view, it is an essential element of the making of a valid visa application that the visa application be accompanied by satisfactory evidence of the prescribed event. As already discussed, there is an inherent flexibility in the requirement to provide ‘satisfactory evidence’, but the clause does not admit of ‘substantial compliance’ in relation to the event that must be evidenced, namely, that the AFP has completed a check of criminal records in relation to the visa applicant.

48 As to the second argument advanced by the appellants, we accept that there is nothing in cl 1128CA(3)(d)(ii) which requires that the only evidence of the prescribed event, which could be characterised as ‘satisfactory’, is the issue of a certificate by the AFP. If the legislature intended the supply of a certificate issued by the AFP certifying that it had completed a check of criminal records to be essential, then it would have been simple enough to set out that requirement in terms. However, by using the words ‘satisfactory evidence’ it is clear that Parliament introduced an element of flexibility as to the means by which an applicant could provide evidence of the prescribed event. As explained below at [52] we do not believe that this flexibility extends to the requirement that it is the AFP which must have completed the search. We find however, that in insisting that only a certificate issued by the AFP can be satisfactory evidence of the prescribed event without considering whether the National Police Certificate was capable of comprising ‘satisfactory evidence’, the delegate misconstrued the effect of cl 1128CA(3)(d)(ii) and, thereby, committed jurisdictional error. Likewise, the Federal Magistrate erred in the manner in which he construed cl 1128CA(3)(d)(ii).

49 As to the appellants’ third submission, we do not accept the submission that the Federal Magistrate erred in not concluding that the delegate’s decision was so unreasonable that no reasonable person could have come to that decision. The wording of cl 1128CA(3)(d)(ii) is open to more than one construction and the view which the delegate took was not one which could be characterised as being so unreasonable that no reasonable person could have come to it. Further, the fact that the department or the respondent may have subsequently taken a more flexible or different view in assessing the validity of a visa application, does not mean that the delegate’s decision is unreasonable.

50 Further, we do not accept the appellants’ submission that cl 1128CA(3)(d)(ii) is ultra vires the Act. In our view, the Federal Magistrate did not err in distinguishing between the circumstances of the Kim case and this case. In the Kim case, the regulations under consideration would have deferred the question as to whether the application for a visa was a valid application until a subjective determination was made, after the date of the making of the visa application. In this case, the regulation called for a straightforward examination of the material submitted as part of the application, rather than a consideration of the detailed personal history and circumstances of a visa applicant which was called for by the regulation under consideration in the Kim case.

51 The final question is whether, having found jurisdictional error by the delegate, the Court, in the exercise of its discretion, should nevertheless withhold relief. This involves consideration of whether it would be futile to refer the matter back to the delegate because the delegate would be bound, on the evidence, to conclude again that the National Police Certificates provided by the appellants were not ‘satisfactory evidence’ of the prescribed event.

52 This question involves a consideration of the proper construction of cl 1128CA(3)(d)(ii) and its requirement that the visa application be ‘accompanied by satisfactory evidence that...the AFP completed a check of criminal records in relation to the applicant’. In our view the clause does not admit of any construction other than that it is the AFP, rather than any other entity, that must have completed the search. The regulation does not specify which criminal records must be searched. It does not in terms call for the AFP to make a check of the criminal records maintained by the police forces in each of the States and Territories although it is not unreasonable to expect that this would in fact occur. It may be, although we have no evidence on the point, that the AFP is obliged by other regulations or its own internal rules to conduct searches of criminal records in a specified way.

53 The evidence of Police Sergeant Coster (see [15] above) suggests that the results of a search of criminal records would yield the same result whether it is done by the AFP or by the Western Australian Police Service. There seems to be no reason why the respondent would have any reason to doubt the accuracy of information coming from the Western Australian Police Service. Nevertheless this does not entitle this Court to ignore the clear words of the regulation requiring that the search be completed by the AFP. Indeed there may well be good reasons why Australian Federal authorities would wish the Australian Federal Police to have ultimate control of and responsibility for that search.

54 The National Police Certificates provided by the appellants do not purport to certify a search of criminal records as having been completed by the AFP. Given the above interpretation it is clear that such certificates could not constitute satisfactory evidence for the purpose of cl 1128CA(3)(d)(ii). In our view, it is therefore futile to send the matter back to the delegate for reconsideration in accordance with law. Accordingly, the appeals must be dismissed with costs.

55 As to the issue that concerns only Ms Vicheanarattanapong, in our view, the Federal Magistrate did not make factual findings in respect of the question of whether an undertaking was given by the departmental officer to ‘keep the application open’. This is apparent from the observation made by the Federal Magistrate at [73] of his reasons where he says that it is unnecessary for him to make findings in respect of the affidavit.

56 In the light of our conclusion that Ms Vicheanarattanapong’s appeal should be dismissed it is not strictly necessary to deal with this point. In deference to counsels’ arguments however, we note briefly that we accept the argument of counsel for the respondent that even if there was to be a finding that the alleged representation was made, this would not assist the appellant. This is because the representation could not have affected the obligation on that appellant to provide the requisite certificate at the same time as making the visa application (Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 46 FCR 117). On 22 December 2003, before the expiry of the visa, the appellant’s migration agent contacted the AFP for the provision of an AFP certificate but the certificate was only obtained on 7 January 2004. Therefore, the earliest date on which a complying application could have been made was 7 January 2004. By that time this appellant’s visa had expired, and so any visa application made at that time would have been an invalid application. Therefore, this appellant did not suffer any practical injustice. We would, therefore, have dismissed this ground of appeal.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French, Stone & Siopis.

Associate:

Dated: 17 May 2006

Counsel for the Appellants:	Mr T D Hurley
Solicitor for the Appellants:	Mark Andrews & Associates
Counsel for the Respondent:	Mr J D Allanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 November 2005
Date of Judgment:	17 May 2006