Asenso v Minister for Immigration
[2016] FCCA 756
•22 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASENSO & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 756 |
| Catchwords: MIGRATION – Review of former Migration Review Tribunal decision – cancellation of a spouse visa – whether it was open to base the cancellation of the visa on false statements made in support of a previous visa in circumstances where the false statements had been admitted before the current visa was granted, considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.101, 102, 103, 107, 107A, 107AA, 108, 109, 110, 111, 112, 113, 60, 474 Migration Legislation Amendment Act 1998 (Cth) |
| Cases cited: Minister for Immigration v Jalal (2000) 102 FCR 63 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Ross v R (1979) 25 ALR 137 |
| First Applicant: | ISAAC ASENSO |
| Second Applicant: | EMMANUEL ASENSO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3205 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 6 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 22 April 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Ms E Anang of Christopher Levingston & Associates |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Court notes that the application describes the first respondent as the Migration Review Tribunal and the second respondent as the Minister for Immigration and Border Protection.
The name of the party described as the Migration Review Tribunal is amended to the “Administrative Appeals Tribunal”.
The application filed on 18 November 2014 is dismissed.
The applicants are to pay the Minister for Immigration’s costs and disbursements of and incidental to the application in the sum of $6,825 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3205 of 2014
| ISAAC ASENSO |
First Applicant
| EMMANUEL ASENSO |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 31 October 2014. The Tribunal affirmed a decision of a delegate of the Minister to cancel the first applicant’s, Mr Asenso’s, subclass 801 (spouse) visa.
There were four applicants before the Tribunal, being Mr Asenso and his three children. The same four applicants were parties to the show cause application as filed, although only two now remain, those being Mr Asenso and his son Emmanuel. It is common ground that the outcome of Mr Asenso’s challenge to the visa cancellation will determine that of Emmanuel.
The factual background to this matter is otherwise set out in the Minister’s outline of legal submissions filed on 31 March 2016.
Mr Asenso is a citizen of Ghana. His immigration history (under different names) is summarised by the Tribunal at [6]-[8][1]:
[1] Court Book (CB) 316-318
The first named applicant (hereinafter the applicant) has entered Australia using two different identities. He first entered Australia under the name of [AB][2] in 1995. He subsequently entered Australia under the name of Isaac Asenso in 2006.
[2] The name has been anonymised
A brief chronology of [AB’s] immigration history is as follows:
15/9/1995Enters Australia on a Visitor visa
3/10/1995Lodges Protection visa application
9/7/1997Protection visa application refused by the department
22/9/1998RRT affirms decision to refuse Protection visa
14/10/1998Applicant files Special Need Relative visa application, sponsored by his aunt, Agnes Joyce Okaikor Abiah
10/12 1998The applicant during an interview with the department claims that he is married to Claire Peacock
11/12/1998Department refuses Special Need Relative application
13/5/1999Migration Review tribunal affirms decision to refuse application
16/2/2000Federal Court dismisses applicant’s appeal of MRT decision
28/5/2002Minister refuses request for intervention, applicant remains in Australia unlawfully
10/2/2004Applicant approaches department and obtains bridging visa to allow him to depart Australia
1/3/2004Applicant departs Australia
A brief chronology of Isaac Asenso’s immigration history is as follows:
16/3/2000Lodges an offshore subclass 300 Prospective Marriage visa sponsored by Agnes Joyce Okaikor Abiah. This was while the applicant was onshore in Australia after the dismissal of his appeal to the Federal Court and while he was claiming that Agnes Joyce Okaikor Abiah was his aunt
1/11/2001Person claiming to be the applicant attends an interview with the department in Nairobi in respect of the Prospective Marriage visa
11/2/2003Department refuses Prospective Marriage visa, applicant files review to MRT
1/3/2004[AB] departs Australia
23/9/2004DNA testing arising from the review before the MRT shows that only three of the four children claiming to be members of the family unit of the applicant are actually his children
2/3/2005MRT remits application to the department
26/11/2005Applicant granted a subclass 300 Prospective Marriage visa
3/1/2006Applicant and three secondary applicants enter Australia
7/1/2006Applicant and Agnes Abiah marry
30/3/2006Partner visa application filed
27/7/2006Investigations by the department determine that [AB] and Isaac Asenso are the same person
6/5/2009Applicant admits during interview with the department that he had provided false information in the subclass 300 Prospective Marriage visa application and also in the current Partner visa application as alleged by the department
23/2/2011Applicant and Emmanuel Asenso granted a subclass 820 and subclass 801 Partner visa
25/5/2012Report by department concludes that [AB] and Isaac Asenso are the same person and that the person attending the interview with the department claiming to be Isaac Asenso was not that person.
Mr Asenso was granted the subclass 801 visa on 23 February 2011. On 11 July 2013 Mr Asenso was notified that consideration was being given to cancelling the visa pursuant to ss.101(b), 102(b) and 103 of the Migration Act 1958 (Cth) (Migration Act)[3]. The notice stated that Mr Asenso had provided incorrect information and bogus documents to the Department and the Tribunal in 2000, 2001, 2004 and 2006 in applying for a subclass 300 – Prospective Marriage visa and entering Australia on a Ghanaian passport that was not his. After further correspondence, the delegate cancelled the visa on 23 May 2014[4]. Mr Asenso applied to the Tribunal for review on 30 May 2014[5]. Mr Asenso consented to the Tribunal deciding the matter without a hearing[6].
[3] CB 216-233
[4] CB 261-275
[5] CB 276-278
[6] see s.360(2)(b) of the Migration Act
The Tribunal noted that Mr Asenso acknowledged that he had not complied with ss.101(b), 102(b) and 103 of the Migration Act as alleged[7]. He relied on the fact that he had admitted his past wrongdoings at an interview with an officer of the Department in 2009 and so was protected by s.113 of the Migration Act[8]. The Tribunal held that there was non-compliance by Mr Asenso with ss.101, 102 and 103 in the way described in the s.107 notice[9]. The Tribunal also held that s.113 did not apply to prevent cancellation as suggested by Mr Asenso[10]. The Tribunal proceeded to consider whether to exercise its discretion to cancel the visa pursuant to s.109(1), having regard to the prescribed matters in regulation 2.41 of the Migration Regulations 1994 (Cth), and concluded that the visa should be cancelled[11].
[7] CB 323 [42]-[43]
[8] CB 318 at [9], 323 at [45]
[9] CB 323 at [44]
[10] CB 326 [60]
[11] CB 326-330 [61]-[81]
The present proceedings
As noted above, these proceedings commenced with a show cause application filed on 18 November 2014. The two remaining applicants continue to rely upon that application. There are two grounds in that application:
1. The Tribunal erred in concluding that the section 107 Notice of non compliance and subsequent section 109 “decision” could be exercised in respect of conduct underpinning the making of a visa subclass 300 prospective marriage visa.
Particulars
The visa subclass 300 prospective marriage visa ceased to have effect upon the grant of the Subsequent visa subclass 801.
2. The Tribunal erred in concluding section 113 of the Migration Act 1958 did not apply.
Particulars
The Applicant’s full disclosure of all material aspects of his non compliance touching upon the grant of the visa subclass 300 prior to the grant of the visa subclass 801 in the course of a section 501(1) Notice of intention to Consider the Refusal of a visa (NOICR) and the subsequent decision to grant the visa subclass 801 on 23 February 2011, notwithstanding the relevant misconduct, enlivened the statutory protection of section 113 of the Migration Act 1958.
The only evidence I have before me is the book of relevant documents filed on 27 February 2015.
The Minister and the applicants both made oral as well as written submissions.
Consideration
The outcome in this case turns upon the interpretation of several provisions of the Migration Act, in particular ss.107AA and 113. The applicants have provided the text of the material provisions as they applied at the time of the Tribunal’s decision[12]:
[12] and at the time of the decision of the delegate
Section 101 Visa application to be correct
101 A non-citizen must fill in his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given.
Section 102 Passenger cards to be correct
102. A non-citizen must fill in his or her passenger card in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given.
Section 103 Bogus documents not to be given
103. A non-citizen must not give an officer, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given.
Section 107 Notice of incorrect applications
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non-compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non-compliance:
(A) shows that there was compliance; and
(B) in the case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non-compliance:
(A) give reasons for the non-compliance:
(B) shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response – when that notice is given; or
(ii) if the holder gives the Minister a written response within that period – when the response is given; or
(iii) otherwise – at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i) to tell the Minister the address at which the holder is living; and
(ii) if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non-compliance by the holder – to tell the Minister the changed address.
(1A) The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa – the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise – 14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a particular place); or
(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
Section 107A. Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa
107A. The possible non-compliances that:
(a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(b) if so specified, can constitute a ground for the cancellation of that visa under section 109;
Include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.
Section 108. Decision about non-compliance
108. The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non-compliance by the visa holder in the way described in the notice.
Section 109. Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
Section 110. Cancellation provisions apply whatever source of knowledge of non-compliance
110To avoid doubt, sections 107, 108 and 109 apply whether or not the Minister became aware of the non-compliance because of information given by the holder.
Section 111. Cancellation provisions apply whether or not non-compliance deliberate
111 To avoid doubt, sections 107, 108 and 109 apply when the non-compliance was deliberate or inadvertent.
Section 112. Action because of one non-compliance not prevent action because of other non-compliance
(1) A notice under section 107 to a person because of an instance of possible non-compliance does not prevent another notice under that section to that person because of another instance of possible non-compliance.
(2) The non-cancellation of a visa under section 109 despite an instance of non-compliance does not prevent the cancellation, or steps for the cancellation, of the visa because of another instance of non-compliance.
Section 113 No cancellation if full disclosure
113 If the holder of a visa who has been immigration cleared complied with sections 101, 102, 103, 104 and 105 in relation to the visa, it cannot be cancelled under this Subdivision because of any matter that was fully disclosed in so complying.
Section 114. Effect of setting aside decision to cancel visa
(1) If the Federal Court, the Federal Circuit Court, the Administrative Appeals Tribunal, the Migration Review Tribunal or the Refugee Review Tribunal sets aside a decision under section 109 to cancel a person’s visa, the visa is taken never to have been cancelled.
(2) In spite of subsection (1), any detention of the non-citizen between the purported cancellation of the visa and the decision to set aside the decision to cancel is lawful and the non-citizen is not entitled to make any claim against the Commonwealth or an officer because of the detention.
In my opinion, and as submitted by the Minister, the Tribunal was correct in its interpretation of the relevant provisions. The grounds in the application do not establish any jurisdictional error by the Tribunal.
Ground 1 claims that the Tribunal erred in concluding that ss.107 and 109 permitted cancellation for non-compliance “in respect of conduct underpinning the making of a” subclass 300 visa, noting that this visa ceased to have effect upon the grant of the subclass 801 visa. However this is contrary to the clear wording of s.107A. The applicants’ submissions appear to suggest that s.107A is invalid as it is inconsistent with s.113 but this argument is without substance. Reading the two sections together, s.113 provides a circumstance in which a visa cannot be cancelled, but cannot otherwise be said to limit the clear words of s.107A. The two provisions are not conflicting, but even if they are, their reconciliation in accordance with Project Blue Sky v Australian Broadcasting Authority[13] would lead to the same conclusion, as s.107A cannot be said to be subordinate to s.113. The terms of s.107A are clear and specific.
[13] (1998) 194 CLR 355 at [70]
This conclusion is confirmed by the legislative history. Section 113 was introduced by the Migration Reform Act 1992 (Cth) as s.49, and subsequently renumbered. Section 107A was introduced by the Migration Legislation Amendment Act 1998 (Cth). As the later and more specific provision, s.107A is not to be read down and still less held invalid by reference to s.113 as suggested by the applicants. Indeed if the two sections could not be reconciled, s.107A would prevail as the later enactment[14]. However, there is no inconsistency between s.107A and s.113 for the reasons already explained. Nothing in Minister for Immigration v Jalal[15], referred to by the Tribunal and in the applicants’ submissions suggests otherwise, and s.107A was not in the form of the Migration Act considered in that case.
[14] eg Ross v R (1979) 25 ALR 137 (HCA) at 145 per Gibbs J
[15] (2000) 102 FCR 63 (FC)
Accordingly the first ground fails.
Ground 2 claims that the Tribunal erred in finding that s.113 did not apply, asserting that the applicant gave “full disclosure of all material aspects of his non-compliance touching upon the grant of the visa subclass 300 prior to the grant of the visa subclass 801…”. It appears that this is intended to refer to the interview in 2009. As the Tribunal held at [59]-[60][16], the s.107 notice[17] referred to non-compliance (with ss.101, 102 and 103) by Mr Asenso in his obtaining the subclass 300 visa, not the subclass 801 visa. That is clearly permitted by s.107A. Accordingly, whether or not Mr Asenso complied with ss.101, 102 and 103 in relation to the subclass 801 visa is irrelevant as the issue for the Tribunal under s.109 was whether there was non-compliance in the way described in the s.107 notice ie in relation to the subclass 300 visa. Mr Asenso did not suggest that he had complied with ss.101, 102 and 103 in relation his subclass 300 visa, so s.113 had no application, as the Tribunal correctly held at [60][18].
[16] CB 326
[17] CB 216-233
[18] CB 326
Accordingly the second ground fails.
As there is no jurisdictional error in the Tribunal’s decision it follows that it is a privative clause decision within s.474 of the Migration Act.
Although it is not necessary for me to decide, it may be noted that Mr Asenso arguably did not comply with at least s.101 in relation to the subclass 801 visa. He applied for it on 30 March 2006, in the name of Isaac Asenso using a false passport[19]. The delegate notes at CB 268.4 that when Mr Asenso was interviewed on 6 May 2009, he admitted that his subclass 801 visa was made in a false name (although Mr Asenso continues to use that name). It might accordingly be futile to grant relief in this matter even if some error were to be found, as it may not be open for the Tribunal to find s.113 applied on any view of the facts.
[19] CB 9
It is, accordingly, arguable at least that the Minister’s delegate, and the Tribunal, could have cancelled Mr Asenso’s visa on the basis of non compliance with a condition on the then current visa, rather than non compliance with a condition on his previous visa. The fact that the delegate and the Tribunal took the safer course of relying upon s.107A of the Migration Act does not establish that they could not have proceeded on the basis of non compliance in relation to the subclass 801 visa.
In my opinion, it is unlikely that Parliament intended that s.113 of the Migration Act should protect a visa applicant who tells lies and provides bogus documents in order to obtain a visa and then, before the visa is granted, when confronted with those falsehoods, admits them. An obvious question in such circumstances (as here) is why the visa would be granted in such a situation? The fact is, it was but the fact of the granting of the visa does not necessarily establish that all material provisions of the Migration Act were complied with. Non compliance in some circumstances might be excused. In circumstances where non compliance is excused, s.113 of the Migration Act would provide no protection against a subsequent cancellation[20].
[20] A further complication may arise in circumstances where one is dealing with a time of application criterion rather than a time of decision criterion
In any event, the Minister was, in the circumstances of the present case, entitled to cancel Mr Asenso’s visa and the Tribunal was correct to conclude that s.107A of the Migration Act was applicable in the circumstances.
Conclusion
The applicants have failed to establish that the decision of the Tribunal is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 22 April 2016
2
5