FEDERAL COURT OF AUSTRALIA

Anand v Minister for Immigration & Citizenship [2013] FCA 1050

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        This appeal is concerned with the proper construction of cl 487.216 of sch 2 of the Migration Regulations 1994 (Cth) (“regulations”), which contains one of the primary criteria for the grant of a Subclass 487 (Skilled - Regional Sponsored) visa. This subclass of visa was removed from the regulations on 1 July 2013, but cl 487.216 was in the same form as many other subclasses of visa. It required that the application be “accompanied by” evidence that the applicant (and each person included in the application who is at least 16 years old) had applied for an Australian Federal Police (“AFP”) check during the 12 months immediately preceding the day the application is made. The question in this case is what is meant by “accompanied by”.

2        The appeal was heard in November last year. At the request of the parties I reserved my decision to give the appellant, Mr Anand, the opportunity to make representations to the Minister. After a lengthy period of time those representations bore fruit. On 27 August 2013 the Minister decided to exercise his power under s 351 of the Migration Act 1958 (Cth) (“the Act”) in the public interest to substitute the decision of the Migration Review Tribunal (“tribunal”) with a more favourable decision and granted Mr Anand a Temporary Graduate (Subclass 485) visa. This visa is apparently less beneficial than the Subclass 487 visa for which he had applied. I was informed earlier this month that for this reason the parties were unable to agree upon terms disposing of the appeal by consent. Consequently, it now falls to me to do so.

3        Mr Anand is an Indian citizen. He completed his visa application with the assistance of a migration agent and lodged it electronically on 9 March 2009. On 3 August 2009 a delegate of the Minister refused the application because, contrary to the obligation contained in cl 487.216, Mr Anand had failed to provide evidence that he had applied for an AFP check within the 12 months before he lodged his application.

4        It is common ground that Mr Anand had in fact applied for an AFP check by the time he lodged his visa application. He did so on 27 February 2009 and submitted a bank cheque made out to the AFP. The bank cheque was presented by the AFP for payment on 11 March 2009. On 16 March 2009 the AFP issued a certificate stating that there were “no Disclosable Court Outcomes” recorded against Mr Anand’s name in the records of the AFP or the police of any Australian state or territory as at that date. Yet, Mr Anand failed to disclose in his visa application that he had applied for the AFP check. Indeed, he answered “no” to the question: “Have you and all persons included in this application who are 16 years of age or over, applied in the last 12 months to the Australian Federal Police for a check of criminal records?”.

5        On 10 June 2009 the Minister’s delegate notified Mr Anand that the Department had not received any documents in support of his visa application. He was asked to provide a number of documents, including evidence that he had applied for AFP “clearance”. Mr Anand’s agent replied by email on 9 July 2009 attaching several documents but no evidence about the application to the AFP. In relation to the request for evidence that he had applied for AFP clearance, the agent advised somewhat enigmatically “AFP is still awaited”. Paradoxically, on 5 August 2009, two days after the delegate’s decision, the representative sent an email to the delegate advising her that the applicant had posted a copy of the original AFP clearance certificate on 29 June 2009 to the Brisbane GPO box held by the Minister’s department. Attached to the email was a copy of the certificate, the Commonwealth Bank cheque directed to the AFP dated 27 February 2009 and a statement from the bank indicating that the cheque had been presented by the AFP for payment on 11 March 2009.

6        Mr Anand applied to the Migration Review Tribunal for review of the delegate’s decision but was unsuccessful. The application was made on 17 August 2009 and received by the tribunal the next day. For some inexplicable reason nearly two years passed before Mr Anand was invited to appear at a hearing and over two years before the tribunal actually conducted the hearing. On 23 September 2011 the tribunal dismissed the application and affirmed the Minister’s decision not to grant the visa. The essence of the tribunal’s reasoning appears in para 37 of its decision record:

[A]lthough the Tribunal now has material before it which satisfies it that the applicant did indeed apply for his AFP check within the prescribed 12 month period prior to making the visa application, the Tribunal is not satisfied from the evidence before it that at the time of application, the visa application was accompanied by evidence that he had applied for the AFP check.

7        Mr Anand then applied to the Federal Magistrates Court (now the Federal Circuit Court of Australia) for constitutional writs: certiorari to quash the tribunal’s decision, mandamus to require it to reconsider his application and prohibition to prevent the Minister from giving effect to the decision. He contended that the tribunal had fallen into jurisdictional error by misconstruing and misapplying cll 487.216 and 485.216 of sch 2 of the regulations. Strictly speaking, cl 485.216 was irrelevant. The federal magistrate dismissed the application. This is an appeal from that judgment.

8        There is one ground of appeal. It pleads that the federal magistrate erred in holding that the tribunal correctly construed cl 487.216 and correctly applied it to the facts. For the reasons that follow, I am of the view that there was error in the construction of the clause but that the appeal should nonetheless be dismissed.

The legislative framework

9        Section 29 of the Act gives the Minister the power (subject to the Act) to grant a non-citizen permission, to be known as a visa, to travel to and enter Australia and/or to remain in Australia. There are two kinds of visas: permanent and temporary. A visa to remain in Australia indefinitely is known as a permanent visa: see s 30. There are also classes of visas: s 31. A non-citizen who wants a visa must apply for a visa of a particular class: s 45. The criteria for visas of a specified class are prescribed by the regulations. Authority to make such regulations is conferred by s 31(3) of the Act.

10        After considering a valid application (the requirements of which are set out in s 46), the Minister is obliged to grant the visa if satisfied that: any health criteria and other criteria prescribed by the Act or regulations have been satisfied; the grant of the visa is not prevented by a provision of the Act or any other law of the Commonwealth; and any amount of visa application charge payable in relation to the application has been paid. Otherwise, the Minister is obliged to refuse to grant the visa: see s 65. The Minister’s power under s 65 may be delegated: s 496(1).

11        Clause 487.2 of sch 2 of the regulations contains the primary criteria for the grant of a Subclass 487 visa. In common with other classes of visa there are criteria to be satisfied at the time of application and criteria to be satisfied at the time of decision. In this case the relevant criterion was required to be satisfied at the time of application:

487.21    Criteria to be satisfied at time of application

…

487.216    The application is accompanied by evidence that:

(a)    the applicant; and

(b)    each person included in the application who is at least 16;

    has applied for an Australian Federal Police check during the 12 months immediately before the day when the application is made.

12        In a nutshell the argument in the court below and in this Court was that, despite the heading, the criterion need not be satisfied at the time of application and it would be unjust so to construe it. Rather, it is sufficient compliance with cl 487.216 that the relevant evidence is supplied to either the Minister (or his or her delegate) in the first instance or the tribunal on review at any time before either makes a decision on the application. The argument must be rejected.

The tribunal’s decision

13        The tribunal said that as the criterion in cl 487.216 is specified as a time of application criterion, it must be satisfied “on the same date as the date on which the visa application is made” (at [35] of the tribunal’s reasons). But the tribunal was not satisfied from the evidence before it that at the time the application was made, the visa application was accompanied by evidence that Mr Anand had applied for the AFP check. The tribunal therefore found that he did not meet the criterion in cl 487.216. The tribunal relied on the reasoning in Gill v Minister for Immigration and Citizenship [2010] FMCA 587 (“Gill”), which dealt with the meaning of “accompanied by” in cl 885.215 (which contained the criterion that an application for a Skilled Independent Visa be “accompanied by evidence that the applicant and each person included in the application has made arrangements to undergo a medical examination for the purpose of the application”). In Gill, the tribunal noted, the court held that the purpose of the criterion was to ensure that when a decision is made, the decision maker will have an up-to-date medical report before them. It also noted the court’s finding that the criterion imposed a substantive requirement for arrangements to be in place to undergo a medical examination, which could only be achieved if the criterion was understood to apply at the time of application. The tribunal said that the reasoning in Gill was applicable in this case.

14        It is common ground that the tribunal’s decision was a “privative clause decision” within the meaning of s 474 of the Act. This means that it could only be reviewed for jurisdictional error. The relevant jurisdictional error was said to be a misconstruction of the regulation. It was not disputed that if there had been such a misconstruction, it would have amounted to a jurisdictional error.

The federal magistrate’s decision

15        In the Federal Magistrates Court Mr Anand, through his counsel, submitted that cl 487.216 merely required that an applicant provide evidence that he had applied for an AFP check at some time before the decision is made; he was not bound to submit it with or on the day of the application. He argued that the heading – “Criteria to be satisfied at the time of application” – was not “grammatically connect[ed]” with the criterion in cl 487.216 and, in this respect, cl 487.216 was relevantly indistinguishable from the clause of the regulations under consideration in Berenguel v Minister for Immigration and Citizenship (2010) 85 ALJR 251; [2010] HCA 8 (“Berenguel”) (cl 885.213). But the federal magistrate found the grammatical connection in the phrase “the application accompanied by evidence…” and distinguished Berenguel.

16        The federal magistrate said it was open to the tribunal to have regard to the decision in Gill and noted that Mr Anand did not seek to distinguish it or to submit that it was plainly wrong. His Honour referred to other authorities which found that the relevant evidence which is to “accompany” visa applications must be provided at the time of lodgement. His Honour rejected Mr Anand’s submission that “accompanied by” in cl 487.216 was flexible or “elastic” in its operation. Rather, his Honour held that cl 487.216 unambiguously requires evidence of an application for an AFP check to be provided at the time of the lodging of the visa application. He said there was no unfairness in reading the criteria in this way. Further, he held that in circumstances where the relevant evidence was not provided at the time of lodgement and where the application itself contained an assertion that no application for an AFP check had in fact been made it was open to the tribunal to find that the applicant did not meet a criterion for the visa for which he had applied.

17        His Honour also held that the reference to “application” in cl 487.216 was a reference to the visa application and not the application for review so that it was immaterial that the evidence was provided at the time of the review application.

The appeal

18        As this is an appeal in the nature of a rehearing this Court is to give the judgment it considers the federal magistrate should have given: MZWVH v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1016 at [14]. Nevertheless error must still be shown: Branir Pty Limited v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [21], [25] per Allsop J.

Was the interpretation given to cl 487.216 wrong?

19        The starting point must be the language of the clause. “Accompanied” is not defined in the regulations. It is therefore necessary to look to the ordinary meaning of the word. The Oxford English Dictionary defines “accompany” as:

-    to be present or occur at the same time as;

-    to add or join (a thing ... ) with another; to supplement with. Also with by.

20        “Accompanied by” in cl 287.216 could have either or both of these meanings. The answer to the question must therefore turn on matters of context and purpose.

21        One matter of context is the heading “Criteria to be satisfied at time of application”, which is taken to be part of the Regulations (Berenguel at [15], [26]), and which may be taken into account in interpreting the meaning or scope of a provision where the provision is ambiguous (Silk Bros Pty Ltd v State Electricity Commission (Vict) (1943) 67 CLR 1). It is common ground that the heading does not assist Mr Anand’s case.

22        In Berenguel, however, the High Court discounted the same heading when construing cl 885.213 which requires an applicant to have “vocational English” in certain circumstances, otherwise “competent English”. In either case the regulations required the applicant to satisfy the Minister that he or she had achieved a minimum test score. In Berenguel the plaintiff lodged his visa application on 21 April 2008 but, although he had booked his test nearly two months beforehand, the earliest date on which the test could be administered was 10 May 2008. Consequently, at the time he lodged his application he could not satisfy the Minister that he had vocational or competent English. The Court held that the plaintiff could satisfy the English language requirements of the clause by lodging the test report with the Department after the date on which he lodged his visa application. It came to that conclusion for three reasons. First, it said that the evident purpose of the alternative criteria in the clause was to ensure that when the minister or his delegate decides on the application the applicant will have demonstrated recent competency in the English language and it does not follow that the criterion can only be satisfied by evidence provided to the Minister at the time of submitting the application. Secondly, it found that the heading “does not connect grammatically” to the terms of the clause, that is to say, that “the text […] does not support any general conclusion that the criteria in Pt 885 speak exclusively to satisfaction at the time of application” ([26]). Thirdly, it considered that the alternative construction for which the Minister contended “leads to such plan unfairness and absurdity that it is not to be preferred” ([26]).

23        Mr Anand placed considerable reliance on Berenguel but the federal magistrate rightly distinguished it. Importantly, as his Honour pointed out, the Court contrasted the criteria in cl 885.213 with cll 885.214 and 885.215, each of which required that the application be accompanied by certain evidence. Clause 885.214 is identical to cl 487.16. Mr Anand was unable to overcome or adequately explain the differences in the wording of cl 487.16 and cl 885.213, differences the High Court considered significant.

24        The federal magistrate was also right to conclude that the grammatical connection missing in Berenguel was supplied in cl 487.216 by the words “the application is accompanied by”. Read together with the heading, the ambiguity in the phrase is substantially removed.

25        In his written submissions, as in the Court below, Mr Karp submitted that the purpose of the criterion in cl 487.216 was elusive. In oral submissions, however, he conceded that its purpose was to assist the Minister to determine one of the public interest criteria (4001), namely, whether or not the applicant satisfies the Minister that he or she passes the character test. The character test is contained in s 501 of the Act. Section 501(6)(a) provides that a person does not pass the character test if he or she has a substantial criminal record as defined in subs (7). The relevant public interest criteria are mentioned in cl 487.228 (and described in sch 4 of the regulations) as criteria to be satisfied at the time of decision. Mr Karp submitted, however, that there is no sufficient contextual reason to require evidence of an AFP check to be submitted simultaneously with the visa application or as close as possible thereafter. I disagree.

26        It seems to me that the purpose of requiring that the evidence be submitted at the time of application is to ensure that the results of the check are available to the Minister when he makes his decision. It will form part of the evidence upon which he can be satisfied that the applicant passes the character test. A similar purpose underlies the requirement that the application be accompanied by evidence of arrangements for medical examinations contained, for example, in cll 487.217 and 885.214. Public interest criterion 4005, which must be satisfied at the time of decision, requires the applicant to be free of certain diseases which would be likely to impose a significant cost on the Australian community.

27        It seems to me that the intention of the regulations is to ensure that the application is not processed unless it meets certain criteria. That is why the relevant evidence is to accompany the application. Consistent with that purpose the evidence should be submitted with or at the same time as the application. Certainly that appears to be the object of the provision. Yet, it is not necessarily inconsistent with that purpose that the evidence is submitted after the visa application is lodged, although how long after is another question. There is force in Mr Karp’s submission that there is some flexibility or elasticity in the phrase “accompanied by” (see, for example, Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 at 103, Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 96). It would seem that the delegate had the same view. Why else send the letter of 10 June 2009 requesting the evidence? In this respect I think that both the tribunal and the federal magistrate construed the words of cl 487.216 too narrowly. The next question is what, if anything, turns on this error of construction.

What are the consequences of the error?

28        For the above reasons I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged. Still, there must be some temporal connection with the application. Evidence supplied around the time of the application may be sufficient. I doubt, for example, if the accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application. It might even extend beyond that. Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within the week and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged and two days after the decision was made. Language cannot be stretched so far that it snaps (cf. Wielgus v Removal Review Authority [1993] 1 NZLR 73 at 79). In contrast to the position in Berenguel the construction for which Mr Anand contended would compromise the purpose of the regulations.

29        It is true that the tribunal “stands in the shoes” of the Minister. But for present purposes that is beside the point. The question is not whether the evidence was provided to the Minister; it is whether it accompanied the application. The federal magistrate correctly found that “application” in cl 487.216 meant the application for the visa.

30        This construction is scarcely absurd, as Mr Karp contended. Nor is it unfair, particularly when the Minister’s delegate had drawn to Mr Anand’s attention the deficiencies in his application and given him a chance to rectify them. I have some sympathy for Mr Anand. But his predicament arose not from a misinterpretation of the regulations by the delegate, the tribunal or the federal magistrate, but in all likelihood from errors and omissions on the part of his migration agent.

31        In these circumstances, despite the error in the interpretation of cl 487.216, the appeal should be dismissed. It is well accepted that the constitutional writs (and ancillary remedies like certiorari) are discretionary (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (“Aala”) at [5], [53]-[54], [145]-[150], [217]) and that a court can decline to grant relief if it would be futile to do so (Aala at [56]; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [28]-[29]). In this case it would be futile to set aside the tribunal’s decision and require the tribunal to reconsider the review application as Mr Anand requests because the result would inevitably be the same. For the reasons given above, it was not open to the tribunal to conclude that Mr Anand’s visa application was accompanied by evidence that he had applied for an AFP check.

32        Costs should follow the event. I will make orders accordingly.

Associate:

Dated:    16 October 2013