High Court (single Justice). In determining whether to grant the plaintiff a time extension to file his judicial review application, does he disclose an arguable basis for relief in arguing that the delegate made an error in treating a 35 NPC as not satisfying the request?
In order to be granted a subclass 485 visa, the plaintiff had to satisfy cl 485.213(1) of Schedule 2 to the Migration Regulations 1994 (Cth), which required that the application be accompanied by evidence that the applicant had applied for an Australian Federal Police ("AFP") check in the 12 months before the application was made.
He also had to satisfy cl, 485.216, which required public interest criterion 4001 of Schedule 4 to the Regulations to be met.
Regulation 2.03AA of the Regulations relevantly provided (emphasis added):
(1) ... if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.
(2) If the Minister has requested the following documents or information, the person has provided the documents or information:
(a) a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;
(b) a completed approved form 80.
Note: For paragraph (a), an example of an appropriate authority is a police force.
(3) The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement."
The Department sent the plaintiff 3 letters, requesting him to provide a current AFP National Police Check (NPC). The letter also stated:
For the purpose of the check, use code 33 'Immigration/Citizenship - for supply to the Department of Home Affairs'. This will ensure you receive the correct certificate titled 'Immigration/Citizenship - Australia'.
The NPC headed "Immigration/Citizenship - for supply to the Department of Home Affairs" was referred to by the Court as the "Code 33 NPC".
The plaintiff provided the Department with a Code 35 NPC headed "Overseas Visa – Supply to a Country other than Australia – Name Check Only".
The Court said:
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- It was common ground that, in substance, although the spent convictions legislation in Victoria,[8] South Australia[9] and Tasmania[10] prohibit disclosure of spent convictions, each Act contains an exception for immigration or citizenship checks by the Department, but that exception does not extend to immigration or citizenship checks by a foreign government.
- In other words, by applying for a Code 35 NPC, [the plaintiff] provided his consent for his criminal history to be disclosed only for the more limited extent that the State and Territory laws permitted disclosure to a country other than Australia. Put another way, [the plaintiff] did not consent to disclosure of his criminal history, to the extent permitted by law, for the purpose of immigration checks by the Department.
The High Court answered that question as follows: