Awad v Minister for Immigration
[2015] FCCA 1381
•28 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWAD v MINISTER FOR IMMIGRATION | [2015] FCCA 1381 |
| Catchwords: MIGRATION – Applicant granted child visa – applicant engaged to be married at time of visa application – applicant did not indicate on visa application form that she was “engaged to be married” – cancellation of visa because of bogus documents or incorrect information. ADMINISTRATIVE LAW – Review of decision of delegate of the Minister – allegation that the delegate’s decision affected by jurisdictional error – whether the delegate erred in his interpretation of the term “engaged to be married” – whether the delegate misunderstood the discretion whether to cancel the applicant’s visa – whether the delegate had the power to cancel the applicant’s visa under sub-s.116(1)(d) of the Migration Act 1958 (Cth) because the applicant was not a person who had “entered” Australia – no jurisdictional error – application dismissed. |
| Legislation: Acts Interpretation Act1901 (Cth), s.36(2) Migration Act 1958 (Cth), ss.5, 109, 116, 128, 501 Migration Legislation Amendment Act (No. 1)1998 (Cth) |
| Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Cheaib v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 308 Chief Commissioner of State Revenue v Qantas Airways Ltd (2009) 74 NSWLR 181 Doukmak v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 432 Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10 Ross v Minister for Immigration and Multicultural Affairs (2000) 107 FCR 1 Singh v Minister for Immigration and Multicultural Affairs [2006] FMCA 1163 |
| Applicant: | REHAB AHMED MAHMOUD AWAD |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2377 of 2014 |
| Judgment of: | Judge Smith |
| Hearing date: | 26 March 2015 |
| Date of Last Submission: | 1 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 28 May 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr M. Jones, Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Mr B. Kaplan |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2377 of 2014
| REHAB AHMED MAHMOUD AWAD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of a delegate of the respondent made on 20 July 2014 to cancel the applicant’s Class AH subclass 101 Child visa.
Background
The applicant is a citizen of Egypt. On 16 February 2010 she applied for a Class AH subclass 101 visa. She was at that time 20 years-old. It was a criterion for the grant of that visa that an applicant who was 18 years and over “is not engaged to be married”: sub-cl.101.213(1)(a)(i) of sch.2 to the Migration Regulations 1994 (“Regulations”). In her application, in response to a question asking for her relationship status, a tick was placed in the box next to the words “never married or been in a de facto relationship” and no tick or other marking was placed in the box next to the words “engaged to be married”. On 11 August 2010 the applicant was granted the visa.
On 19 August 2010 the applicant entered Australia. She departed Australia on 28 September 2010 and has not returned since.
On 27 November 2013 the applicant lodged an application for a spouse visa as the sponsor of Mr Mamdouh Mohamed Abdullah Mohamed. The applicant’s spouse was interviewed for the purposes of that application and informed the Department that the couple were engaged on 23 March 2010 and that a small celebration had taken place at her home. In April 2014 the applicant’s spouse emailed the Department stating:
[M]e and my wife are relatives we love ourselfs (sic) from 2008. I spoke to her father on the phone because he was out of country, he was agreed, we had read al fatiha in 22/3/2009 and I agreed with him to make betrothal 22/3/2010.
On the basis of that information an officer of the Department wrote to the applicant on 19 June 2014 informing her of the intention to consider cancellation of her visa under s.116 of the Act. The opening paragraph of that letter stated:
It has come to the Department’s attention that there may be a ground/grounds for cancellation of your subclass AH101 Child visa under section 116 of the Migration Act 1958 (‘the Act’) because you have provided bogus documents or incorrect information.
The letter invited the applicant to attend an interview on 9 July 2014 at the Australian Embassy in Cairo. A record of that interview includes the following questions and answers:
So you only returned to Egypt to study and not because you are engaged? The main reason was the study but at the time will get married in 2012.
What was your relationship status at the time you applied to the visa on 16 February 2010? I knew my husband and we started a relationship in 2008 and he promised to my father in 2009 for marriage
When did you read the al fatiha? In 2009 and they talked and they had some demands that if my husband did not compile (sic) I would be released from the al fatiha
What does the al fatiha mean to you? We are a conservative family and it is a vowel (sic) or pledge for marriage if he meets my father’s requirements in one year.
So you were promised to be married then? Yes
When did you have your engagement party? 23 March 2010
So you were formally engaged to your husband on 23 March 2010 with your father’s blessing? Yes however he was given two years to get his financial affairs in order. We then got married in 2012 but this was delayed due to my father passing away
Your visa was granted on the 12 August 2010, so you were engaged to be married by this time? Yes
At the end of the record of the interview, under the heading “OUTCOME”, the following appears:
Case discussed with PMO Gaye Lalor. The applicant failed to notify the processing office of her change in circumstances. If the applicant had notified this office she had become engaged prior to the visa grant the visa would have been refused for do (sic) meeting one of the core criteria. The applicant was provided with an opportunity to comment on any hardship she may face if the visa was cancelled. I have reviewed the applicant’s migration history and find that although the applicant travelled to Australia she only remained for a period of one month and therefore has (sic) not have strong business or other ties to Australia.
I have reviewed the applicant’s family connection to Australia. The applicant does have 3 biological siblings residing in Australia and 5 step siblings. I note the applicant did not even know the name of her stepmother and therefore believe the connection/tie to this family is limited. The applicant has indicated that she regularly chats with her biological siblings.
The applicant’s father is now deceased and the applicant has a stronger connection with Egypt and her mother, a sibling and her husband and family are resident here.
I have reviewed the file and information provided at interview and find the applicant’s visa should be cancelled. I have discussed decision with PMO as a fair and reasonable decision taking into account all the information and that the applicant does not have a review right for this decision.
By letter dated 20 July 2014 a delegate of the respondent, being the same officer who had issued the notice of intention to consider cancellation and who had interviewed the applicant, wrote to the applicant to inform her that her visa had been cancelled. The delegate explained:
Your visa was cancelled on 20 July 2014. The reasons for not cancelling your visa were not considered sufficient to outweigh the existence of the grounds for cancellation because of the failure to notify this office of your change in circumstances.
The letter enclosed what was entitled “Record of Decision”. That record set out the personal and visa details of the applicant, the background of the consideration of visa cancellation, the grounds for cancellation including the finding that the applicant was engaged to be married as early as 22 March 2009 and had an engagement party on the 22 March 2010, and then the reasons for the decision. The concluding paragraph of those reasons was:
In weighing up all the information provided I am not satisfied the applicant has provided strong reasons that outweigh why the visa should not (sic) be cancelled.
Consideration
The application to this Court was commenced on 25 August 2014. An application such as this must be brought within 35 days of the date of the decision (being the date on the notice of the decision). The 35th day after 20 July 2014, 24 August 2014, fell on a Sunday. However, pursuant to s.36(2) of the Acts Interpretation Act1901 (Cth) the applicant was allowed to bring the application on the following day, 25 August 2014, and for that reason, the application is competent.
The applicant only pressed two of the four grounds contained in the originating application and sought leave to argue a third ground. The Minister only opposed the grant of leave on the basis that the ground sought to be raised had no merit. Although, for the reasons that follow, that ground will be rejected, I formed the view that it was not hopeless and, in the absence of irremediable prejudice and in order for the issues between the parties to be fully ventilated at first instance, I granted leave at the hearing.
Ground 1
The first ground is that the delegate erred in his interpretation of the term “engaged to be married”. The applicant says that the information before the delegate did not support a finding that the applicant was engaged to be married at the relevant time. The “betrothal” on which the delegate based the finding was an agreement between her father and the man who eventually became her husband. She argues that in Australian law, an engagement is an agreement to marry between the future spouses.
The central argument in support of the applicant’s construction is that marriage in Australian law implies the voluntary, mutual consent of the parties to enter into a union. From this it is submitted that it can only follow that an engagement to marry must also be a voluntary, mutual act.
While I very much doubt that the concept of “engaged to be married” in the Regulations is limited to the understanding of that concept by reference to Australian law and Australian societal norms (whatever they may be), in my view it does not matter and the issue of construction need not be resolved.
The evidence before the delegate made it abundantly clear that the relationship between the applicant and her husband had commenced well before any involvement of her father and that there was indeed a mutual and ongoing commitment to that relationship. In support of his visa application the applicant’s husband had stated to the Department that he and the applicant had loved each other since 2008 and that he had only spoken to her father some time later, most likely in 2009. The applicant herself said at the interview that the relationship had started in 2008 and that her current husband had “promised to my father in 2009 for marriage”. She said that they had taken the al fatiha in 2009 which she understood was a vow or pledge for marriage. Furthermore, the applicant never contested the proposition that she had been engaged to her husband at least by the time the visa was granted. In my view, it would be difficult to find clearer evidence of a voluntary and mutual relationship and of the fact that both parties intended to marry each other.
The involvement of her father was, on the applicant’s own evidence, necessary because her family was conservative. Such involvement is not unknown even in the modern Anglo-Saxon element of Australian society. It in no way diminishes the personal aspect of the formalisation of a relationship with the intention of marriage. Further, the applicant accepted that it is possible for an arranged marriage to result in a genuine marriage within the meaning of the Act in the sense that the partners have a “mutual commitment to a shared life as husband and wife to the exclusion of all others”: see s.5F. Once that is accepted, it is a small step to accept that two people may be “engaged to be married” in circumstances where the engagement is conditional upon, or even only brought about by, the involvement of one or more of the parents of the prospective spouses.
For those reasons the delegate did not misunderstand the meaning of the phrase “engaged to be married” in the Regulations and the first ground is rejected.
Ground 2
The next ground relied on by the applicant is that the delegate misunderstood the discretion whether to cancel the visa. This ground relies upon a single sentence in the document entitled “Record of Decision” and is set out at [9] above. The applicant argues that s.116(1) of the Act allows the Minister to cancel a visa if satisfied that the ground for the cancellation exists and that there is no presumption that a visa should be cancelled unless reasons, let alone “strong reasons” are put forward by the visa holder. Any assumption that a visa should be cancelled unless there are sufficient reasons for not doing so is an error of law. The applicant relies upon the decisions of the Federal Court in Ross v Minister for Immigration & Multicultural Affairs (2000) 107 FCR 1 (“Ross”) and Doukmak v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 432 (“Doukmak”).
The facts in Ross were that the applicant, a citizen of New Zealand, had been convicted in the District Court of Queensland on three counts of misappropriation and sentenced to imprisonment for three years on each charge and sentenced to terms of imprisonment of one year for a number of other offences. A “Notice of Intention to Cancel a Visa under Subsection 501(2)” was sent to Ms Ross and she provided written submissions in response to that notice. On 20 February 2000 the Minister decided to cancel Ms Ross’s visa. Ms Ross was sent notification of that decision together with a document referred to as the “decision record for visa cancellation under section 501”. That document included a two-page document headed “Minute” to the Minister. Under the heading “Discretion” was the following statement:
“If you agree… with the assessment that Ms Ross does not pass the Character Test for the purpose of section 501 of the Act, you must then consider your discretion not to cancel her permanent visa.”
(Emphasis added)
Spender J found that those words, and the Minister’s indication of his agreement with the statement “I do not exercise my discretion to not cancel a visa”, demonstrated that the Minister had wrongly interpreted s.501(2) of the Act as conferring a discretion to not cancel a visa and that he believed that once the preconditions to the existence of the discretion was satisfied, he was obliged to cancel the visa unless he positively decided that he should not do so: Ross at 7 [27].
That decision was applied by Moore J in Doukmak. In that case the Minister had cancelled the applicant’s subclass 309 Spouse (Provisional) visa under s.128 of the Act. Subsequent to that decision, the applicant was sent notice of the decision together with a document entitled “Decision Record – Visa Cancellation Under Section 128 of the Migration Act 1958”. This document, like the minute in the case of Ross, appears to have been prepared by an officer of the Department for the purposes of the Minister making a decision as to whether to cancel a person’s visa. Under the heading “Discretion” was following statement:
If you are satisfied that the grounds for visa cancellation under section 128 have been established, you must then consider your discretion to not cancel the visa despite Mr Doukmak’s evidence of character concern.
(Emphasis added)
Moore J found that this indicated that the Minister had fallen into the same error considered by Spender J in Ross: at [50] and [51].
The facts in this case are different from the facts in those two cases. Before explaining why that is so it is necessary to deal with a question of principle that arose in argument. The applicant argued that, in order to determine the basis upon which the decision to cancel was made, the Court was only entitled to have regard to the document entitled “Record of Decision”. On the other hand, the Minister argued that the Court was entitled to have regard to all of the material that had been prepared by the delegate including the notice of intention to cancel, the record of the interview and the decision record. On the facts of this case the outcome of that argument does not matter. Nevertheless, in my view, the better approach is that the Court is entitled to have regard to all of the material which is probative of the delegate’s understanding of the test which he eventually applied. Ordinarily, such material will be limited to the decision record, particularly where, unlike the case here, there is a statutory obligation to give reasons. Here, that material included the explanation of the power to cancel in the notice of intention to consider cancellation, the considerations which were recorded at the end of the interview record and are set out above at [7] as well as the decision record itself.
Returning to the substantive issue, the principal difficulty for the applicant’s argument is that even the single sentence relied upon by her shows that the delegate understood that there was a discretion to be exercised whether or not to cancel the visa. That indication arises most clearly from the word “outweigh”. That word shows that the delegate engaged in a balancing process. When taken together with the entirety of the decision record, including the heading “Decision Whether to Cancel”, that word overcomes any inference that might be derived from the use of the word “strong” in the last sentence. In any event, the better view is that that word was used by the delegate to mean that the reasons given by the applicant were not strong rather than that he understood that there had to be strong reasons in order for him to exercise the discretion in the applicant’s favour.
For those reasons, I am not satisfied that the delegate understood that the discretion that he was exercising was the discretion not to cancel the applicant’s visa. Accordingly, the second ground is rejected.
Ground 3
The third ground is that the Minister’s delegate did not have power to cancel the applicant’s visa under sub-s.116(1)(d) because the applicant was not a person who had entered Australia. Subsection 116(1)(d) provides:
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(d)if it’s holder had not entered Australia or has so entered but has not been immigration cleared-it would be liable to be cancelled under subdivision C (incorrect information given by holder) if it’s holder had so entered and been immigration cleared.
The applicant argued that this provision did not apply to her because she had entered Australia, albeit only briefly, in August 2010. The Minister submitted that this argument must fail in light of the definition of “entered” in s.5(1) of the Act.
Section 5(1) of the Act relevantly provides:
enter includes re-enter
enter Australia, in relation to a person, means enter the migration zone.
entered includes re-entered
Thus it was argued by the Minister that sub-s.116(1)(d) applied to a person who had previously entered Australia and had then left Australia without again re-entering Australia. In other words, it applied to people who were outside of Australia at that time of the decision.
The applicant argued in respect of that submission that the definitions in s.5(1) were subject to any contrary intention and that such a contrary intention was revealed by the difference between ss.128 and 116. Prior to its amendment in 1998, s.128 of the Act provided:
If:
(a) the Minister is satisfied that:
(i)there is a ground for cancelling a visa under section 116; and
(ii)it is appropriate to cancel in accordance with this Subdivision; and
(b) the non-citizen has not entered Australia;
the Minister may, without notice to the holder of the visa, cancel the visa.
(emphasis added)
In Cheaib v Minister for Immigration & Multicultural Affairs (1997) 75 FCR 308, the Full Court of the Federal Court held that the definition of “enter” in s.5(1), sub-s.128(b) applied to somebody who was outside Australia regardless of whether they had previously entered Australia. That subsection was amended by operation of the Migration Legislation Amendment Act (No. 1)1998 (“the Amending Act”) to omit the phrase “has not entered” and to substitute “is outside”. However, the same amendment was not applied to sub-s.116(1)(d). The applicant submitted that this indicated that the latter section was to have a different meaning to sub-s.128(b) and, thus, that the definition of “entered” did not apply to sub-s.116(1)(d).
The Minister also relied upon the amendment to s.128, arguing that it confirmed the meaning that the Full Court of the Federal Court had placed on the words “has not entered” in that section. He pointed to the explanatory memorandum that accompanied the Amending Act that was circulated by authority of the Minister for Immigration and Multicultural Affairs, the then Hon. Philip Ruddock MP. That memorandum relevantly stated:
166.This item amends paragraph 128(b) to correct an ambiguity as it currently could be interpreted as only applying to non-citizens who have never entered Australia. Whilst the explanatory memorandum to the Migration Reform Act 1992 stated that the provision “will also apply to non-citizens who have previously been honours in Australia but are now outside it”, litigants in the Federal Court have suggested otherwise.
167.The amendment removes any doubt by omitting reference to a non-citizen who “has not entered” Australia instead referring to a non-citizen who “is outside” Australia.”
It may appear odd that this amendment was aimed at an argument that had been unsuccessful in the Federal Court; nevertheless it is tolerably clear that the purpose of the amendment was to achieve the same outcome arrived at by the Full Court in Cheaib.
The applicant’s argument does not appear to rely on the re-enactment principal which was recently discussed by the High Court in Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 89 ALJR 425 but rather, on what could be said to be a corollary of that principle, namely, that when an amending statute amends particular words in one provision but not in others, the latter then bear a different meaning. I do not agree with that proposition. Critically, neither Cheaib nor the Amending Act had anything to do with s.116 of the Act. For that reason it is difficult to see that the amendment to the former provision can shed any light on the meaning of the latter.
In Chief Commissioner of State Revenue v Qantas Airways Ltd (2009) 74 NSWLR 181 Macfarlan JA, with whom Ipp and Campbell JJA agreed, distilled the principles relating to the way in which a court will ascertain the existence of a “contrary intention”. He said, at [35]:
…
· The provisions of the Act as a whole and the context of the Act must be considered in deciding whether a relevant contrary intention appears.
· A contrary intention may be inferred if “the section would not appropriately work” if the definition were applied or if there is inconsistency between the definition and the substantive provision. To find that the definition is inapplicable it is not necessary to find impossibility or absurdity of operation if the definition applied. It is sufficient if the section would operate in a way which the Court can conclude that the legislature clearly did not intend.
· It is useful to enquire whether there is any plausible reason why the definition might have been intended to apply (see also Commissioner of Territory Revenue v Alcan (NT) Alumina Pty Ltd (2008) NTCA 14 at[45]; special leave to appeal granted by the High Court on 1 May 2009).
(See more generally Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27).
In my opinion, applying those principles, there is no contrary intention in the Act to the effect that the definition of the word “entered” contained in s.5(1) should not apply to sub-s.116(1)(d). Importantly, sub-s.116(1)(d) works perfectly well if the definition in s.5(1) applies to it and there is no internal inconsistency created by the use of the definition.
While this conclusion is inconsistent with the remarks of Judge Driver in Singh v Minister for Immigration & Multicultural Affairs [2006] FMCA 1163 at [91] those remarks were obiter and I need not determine whether they were clearly wrong.
Accordingly, sub-s.116(1)(d) is to be interpreted as though the words “or re-entered” were inserted into it. Once that is done, there is no question that it was applicable to the applicant. She had, on one occasion, entered Australia, but had not re-entered. The third ground is therefore rejected.
Alternative argument
The Minister raised an alternative argument that, even if s.116 did not apply, the Court should find that the delegate had cancelled the applicant’s visa under s.109 of the Act. In light of the conclusion to which I have come in respect of the construction of sub-s.116(1)(d) it is unnecessary to deal with that argument.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application should be dismissed with costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 28 May 2015
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