Following counselling, applicants must acknowledge in writing that they understand and accept the restriction that it places on them. Where relevant, the acknowledgement should be both in the local language and in English; and the applicant should be given a copy, either of the visa condition (as a passport insert) or of the acknowledgement. A copy of the acknowledgement should also be retained at the post.

29. The Department in August 1997 noted that it could not be satisfied that condition 8503 was validly imposed as the records had been destroyed, and consequently accepted that the application for permanent residence was validly made. The Tribunal in view of the evidence given by the visa applicant concurs in that decision.

30. At the time the visa application was lodged, Special Eligibility (Residence) (Class AO) contained a number of subclasses. The only subclass in respect of which any claims have been advanced is subclass 806, and then only in respect to the `special need relative' ground. There is no evidence to suggest that the visa applicant meets key criteria for other subclasses or other grounds.

31. A criterion to be satisfied at time of application for the grant of this visa is clause 80 6.213 which relevantly provides:

The applicant is ... a special need relative of another person who:

(a) is a settled Australian citizen, a settled Australian permanent resident or... and

(c) has nominated the applicant for the grant of the visa.

32. The terms `special ne ed r elative' and `settled' are defined in regulation 1.03:

`special need relative' in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or ...means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

(a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and

(b) the assistance cannot reasonably be obtained from:

(i) any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or ...or

(ii) welfare, hospital, nursing or community services in Australia;

`settled' in relation to an Australian citizen, an Australian permanent resident or ...means lawfully resident in Australia for a reasonable period;

33. Relative is also defined in regulation 1.03 in the following terms:

(ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew;

and close relative is defined in regulation 1.03 as:

(b) a child, adopted child, parent, brother or sister of the person; or

(c) a step-child, adopted step-child, step-parent, step-brother or step-sister of the person;

34. Nominator is relevantly defined in regulation 1.13 in the following terms:

"nominator", in relation to an applicant for a visa, means:

(a) a person who puts forward, on the relevant approved form, the name of the applicant as an applicant for a visa of a particular class;...

35. In the visa application form the nominator was named as Errol Trevor Solomons who is the husband of the visa applicant's sister and as such does not fall within the term relative as defined.

36. There is evidence before the Tribunal that at the time the application form was completed in 1997 Larraine Solomons was depressed but there is also evidence that she was present when the document was prepared and signed. It is possible that she was given incorrect information by the then migration agent and that led to the nomination being completed in the name of her spouse however the Tribunal, without supporting evidence, finds it hard to accept that a qualified migration agent would have made such a fundamental mistake. It is stated on the form that Errol Solomons is the nominator and there is no indication that he was signing the document for and on behalf of his spouse.

37. There is no provision in the Act or the Regulations for the form to be signed by a person other than the nominator and the Tribunal does not accept the submission that Errol Solomons could sign on behalf of his spouse.

38. It has also been submitted that there has been substantial compliance with the form and therefore the Tribunal should accept that the visa applicant has been validly nominated. The submission is based on section 25C of the Acts Interpretation Act 1901 (Cth) which 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.

39. The issue was considered by the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v "A" 91 FCR 435; [1999] FCA 1679 (3 December 1999). Merkle J. at paragraphs 43 and 44 stated:

[43] I can see no reason for discerning a legislative intent that a failure to complete an approved form in accordance with any or every direction in it should necessarily result in the application being invalid for the purposes of the Act. There is much to be said for the view that the intent of the legislative scheme is that information necessary to enable the Minister or his delegate to decide the substantive issues raised by a visa application must be provided as directed in an approved form. However, I do not accept that the same intent exists in respect of all of the information sought in an incomplete form irrespective of the significance or relevance to the outcome of the application or the uncompleted parts of it. I respectfully agree with the observation of R D Nicholson J in Wu that a literal approach to compliance "would possibly occasion great injustice". I would add that such an approach would be a triumph of form over substance which I do not regard the legislature as intending in an area fundamental to the human and family rights of those falling within the purview of the Act, many of whom could be expected to experience some difficulty in duly completing approved forms.

[44] Plainly, in the present case there has not been substantial compliance; rather, there has been substantial non-compliance. The information that was not provided as directed in the form related to the respondent's "specific claims under the Refugees Convention", a primary criterion for the grant of a protection visa.

40. The issue is whether the sister of the visa applicant can be the `nominator' despite not having completed or signed the relevant section of the form. Regulation 1.13 expressly states that the nominator is the person who puts forward, on the relevant approved form, the name of the applicant and clause 806.213 requires that the visa applicant is a special need relative of another person...who has nominated the visa applicant.

41. In Hamilton v. Minister for Immigration and Ethnic Affairs [1994] FCA 1424; (1994) 53 FCR 349 the applicant had failed to complete the nomination section of the form. The Full Federal Court firstly considered whether there had been a nomination and held (per Davies J at 358):

"An expression of the sponsorship or support would seem to be essential. A nomination, in this context is a positive act proposing, sponsoring or supporting an applicant for the entry permit sought. See Hakim v. Minister for Immigration and Ethnic Affairs [1994] FCA 1055; (1994) 49 FCR 495."

42. The current agent has submitted that Larraine Solomon's actions either by herself, her husband as her agent, her migration agent at the time in making submissions in support of the application and her doctors in their reports supporting the application, amounted to an application.

43. In the cases referred to above the Federal Court was considering situations where the nomination was incomplete and the Court was using section 25C to find that even though the form was incomplete that there was substantial compliance with the requirements of the form. The facts in this case are somewhat different in that the form has been completed but the person who is stated to be the nominator is not within the required degree of relationship to the visa applicant. The relationship between the visa applicant and the nominator is central to this visa class and is a substantive issue for which the information must be provided in the approved form. The information that was provided does not satisfy the degree of relationship that is a primary criterion for the grant of this visa. The Tribunal finds that the visa applicant does not satisfy clause 806.213.

44. The Tribunal considered the request of the visa applicant that this decision not be published on the Internet. The power of the Tribunal to restrict publication of material is contained in section 378 of the Act which empowers the Tribunal to direct that evidence or documents not be published if that is in the public interest. Section 368 requires the Tribunal to prepare a written statement setting out the decision, the reasons for the decision, the findings on questions of fact, and referring to the evidence on which the findings of fact were made. Section 378(2) makes it clear that the written statement must be prepared even if a decision is made to restrict publication of part of the material in that statement. The visa applicant did not make any submission to support the request. The Tribunal has considered the material contained in this statement and does not find any evidence, information or document that in the public interest should not be published.

45. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Family (Residence) (Class AO) visa subclass 806.