Basnet v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 582
•28 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Basnet v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 582
File number: SYG 1284 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 28 June 2024 Catchwords: MIGRATION – where the applicant was detained at Sydney Airport - where the applicant’s visa was cancelled due to non-disclosure of a previous visa refusal – whether grounds for cancellation of a visa existed - whether the delegate gave proper genuine and realistic consideration - whether or not the ultimate decision is legally unreasonable – application dismissed Legislation: Migration Act 1958 (Cth) ss 101, 109, 116, 189
Migration Regulations 1994 (Cth) regs 2.41 , 2.43
Cases cited: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 431
Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Trivedi & Ors v Minister for Immigration and Border Protection (2014) 220 FCR 169; [2014] FCAFC 42
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submission/s: 25 June 2024 Date of hearing: 25 June 2024 Place: Parramatta Counsel for the Applicant: Mr Cutler Solicitor for the Applicant: Sultan Legal Counsel for the Respondent: Mr Hall Solicitor for the Respondent: Australian Government Solicitor ORDERS
SYG 1284 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SATISH BASNET
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
28 JUNE 2024
THE COURT ORDERS THAT:
1.The application filed on 14 June 2024 is dismissed.
2.The injunction ordered on 17 June 2024 restraining the Minister for Immigration, Citizenship and Multicultural Affairs from removing the applicant from Australia is dissolved.
3.Order 2 dissolving the injunction is stayed for a period of seven (7) days from today and is to expire at 4:00pm on Friday 7 July 2024.
4.The Applicant is to pay the First Respondent’s costs fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review sought on an urgent basis upon the filing of an Initiating Application on 14 June 2024.
BACKGROUND
The applicant is a Nepalese citizen. He arrived in Australia at Sydney Kingsford International Airport at around 10:00am (AEST) on 13 June 2024 on a Student (Subclass 500) visa (“the visa”). The applicant has held this visa since 7 February 2022. He has entered and left Australia on previous occasions using this visa.
After his passport was scanned, the applicant was taken aside and asked to wait. Later he was interviewed by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the delegate”) after providing his passport and passenger declaration card to an Australian Border Force Officer at Immigration at 12:11pm (AEST).
During the interview the applicant voluntarily disclosed he had been previously refused a visa to the United States (“US”). This was not disclosed in his application, despite there being an explicit question in that regard in the Australian student visa application.
The applicant was then provided with a Notice of Intention to Consider Cancellation (“NOICC”) at 1:22pm (AEST), and subsequently responded at 1:47pm (AEST). At 2:24pm (AEST), the delegate cancelled the applicant’s visa under s 116(1)(d) of the Migration Act 1958 (Cth) (“the Act”) as grounds existed for the cancellation under s 101 of the Act. The applicant was then detained under s 189 of the Act and was to be removed from the country on 15 June 2024 at 1:05pm.
The applicant sought urgent judicial review of the decision and filed an Initiating Application on 14 June 2024. Upon receipt by the Minister of the application for urgent judicial review, the applicant’s removal from the country was moved to 18 June 2024 at 1:05pm.
An urgent hearing was held on 17 June 2024 at 2:00pm. Orders were made to the effect of restraining the respondent from removing the applicant from Australia pending further Order of the Court. Timetabling Orders were also made, and the matter was set down for Final Hearing on 25 June 2024 at 10:00am. During this time, the applicant has been detained in Immigration Detention.
The applicant now seeks judicial review of the delegate’s decision to cancel his visa. For the reasons set out below the application must be dismissed.
THE DELEGATE’S DECISION
The delegate’s decision is contained within a form of the Department of Home Affairs titled “Decision” spanning approximately seven pages. The written reasons appear to be contained in Part B question 7 of the document under the title, “Details of the evidence and findings about why the delegate is satisfied GROUNDS for cancellation DO EXIST”:
In response to the Notice of Intention to Consider cancellation (NOICC) the visa holder stated the words to the effect of:
"The mistake in the visa application was done by the agency who applied for my visa, don't judge me on their mistake it was an honest mistake."
"It was a silly mistake done by the consultancy just for the money."
The visa holder acknowledged in his response that it was a mistake done by the agency who applied for his visa and to don't judge him on their mistake, it was an honest mistake. and it was a silly mistake done by the consultancy just for the money. However, it is the visa holder's responsibility to ensure no incorrect answers are provided in the visa application.
On the visa application, the visa holder answered "No" to the following question under 'Visa History':
"Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?"
During the interview today the visa holder was asked if he had any visa's refused for any other country? He stated yes, he applied for a student visa for the USA and that visa was refused in 2021.
After considering the visa holder's response and the evidence before me, I am satisfied the visa holder has provided incorrect answers in his visa application as he did not declare on his visa application that he was refused a visa for the USA in 2021.
Therefore, I am satisfied that there are grounds to cancel the visa holder's visa under s116(1)(d) because I am satisfied a ground exists at s101.
The applicant gave reasons as to why his visa should not be cancelled. The delegate gave those considerations some weight against cancelling the visa, including in sum:
·The applicant is currently studying Civil Construction in Australia.
·The applicant has entered Australia on a previous occasion, and that there is no evidence before them to suggest that the applicant has not complied with any of his visa conditions.
·There may be hardships for the applicant that he may not have raised in the interview or response.
·The applicant stated that it was a silly mistake made by the consultancy, who just did it for the money.
·The applicant appears to have been honest in the interview and response.
·There are several serious legal consequences that the applicant would face if the visa was cancelled.
The delegate had regard to the “Visa holder's behaviour in relation to the Department, now and on any previous occasion (whether they have been truthful and cooperative in their dealings with the Department)”. They noted that although the applicant had been cooperative with the process and appeared to be “generally forthcoming”, the applicant had previously provided incorrect information on his visa application for the US. This information of his visa refusal was not available to the visa processing officer at the time of the decision to grant the visa.
The primary reason the applicant’s visa appears to have been cancelled upon arrival in Australia is because it became apparent to the delegate upon entry that the applicant had previously been refused a US student visa in 2021, and had not disclosed it on his application, whether by genuine mistake or intentionally.
GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of review are contained in an Amended Application filed on 19 June 2024. They are as follows (less particulars):
(1)Denial of procedural fairness.
(2)Failure to give genuine proper and reasonable consideration.
(3)Legal unreasonableness.
THE APPLICANT’S SUBMISSIONS
Ground One
Ground one was abandoned at the commencement of submissions by Counsel for the applicant.
Ground Two
The applicant accepts that an incorrect answer was provided in the visa application, however noted that the decision to cancel the visa under s 116(1)(d) of the Act is discretionary. Further, the provision of an incorrect answer per s 101 of the Act is not one of the prescribed grounds in reg 2.43(2) of the Migration Regulations 1994 (Cth) (“Regulations”) in which the Minister would have grounds to cancel the visa.
The applicant submits that there is an analogy to be drawn with the provision of misleading information or “bogus” documentation to the Department. The applicant relies upon Trivedi & Ors v Minister for Immigration and Border Protection (2014) 220 FCR 169; [2014] FCAFC 42, which makes clear that not all misleading information or incorrect answers result in a cancellation, and that some fraudulent or dishonest purpose is required.
The applicant contends that examples of reasons for cancellation provided for in policy are more severe, as compared to this case where the applicant provided a “mere incorrect answer”.
The applicant also submits that there is no evidence to suggest that if the US visa refusal had been disclosed when the visa application was made there would be a different decision made as regards his Australian student visa and that it is unknown whether the non-disclosure was material to the visa being granted.
At hearing, the applicant also abandoned any reliance on reg 2.41 of the Regulations.
Ground Three
Ground three is a contention that the decision of the delegate was legally unreasonable. It was submitted that this matter is one of the rare cases where legal unreasonableness can be found; (see: Minister for Immigration and Border Protection v Pandey [2014] FCA 640 (“Pandey”); (2014) 143 ALD 640 at [41]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 (“Singh”); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”); [2013] HCA 18 at [31], [113]).
The applicant submits that the arbitrary and capricious nature of the decision is apparent because:
a)There was no consideration of the reason for the US refusal and what impact (if any) it would have had on the student visa application;
b)There was no consideration of the circumstances in which the application form was incorrectly completed by agents who were in possession of the correct information; and
c)It appears that the officer who cancelled the visa considered that a mere incorrect answer was sufficient to outweigh all the other factors which weighed against cancellation. This is particularly so, in light of the examples given in policy of where it would be appropriate to exercise the power.
The applicant contends that this is a “classic case of a sledgehammer being used to crack a nut” in so far as the cancellation decision lacks common sense, and in the circumstances is unjust.
THE RESPONDENT’S SUBMISSIONS
Ground Two
In regard to Ground two, the respondent submits that the language of “proper, genuine and realistic” consideration is generally to be avoided; (see: Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643 at [42]).
A court conducting judicial review is required to “assess, in a qualitative way, whether the decision maker has as a matter of substance had regard to the representations put”;( see: Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 431 (“Jabari”) at [55]). Put another way, “provided the decision maker has averted to and understood the representations… the degree or quality of the engagement…is a matter for them as long as they act within the bounds of rationality and reasonableness” ;(see: Jabari at [52]).
The decision record evidences that the delegate recorded the applicant’s representations during the interview after he was given a NOICC. These representations included matters that were favourable to the applicant such as, his honesty with immigration officers, the mistake in his application being the fault of a migration agency in Nepal, and that the applicant would experience hardship as a result of his visa being cancelled. These matters were understood and regarded by the delegate.
The respondent submits that the delegate did not treat the decision under s 116(1)(d) of the Act, as one involving mandatory cancellation, instead, the delegate correctly identified whether grounds for cancellation existed, and then whether he should exercise his discretion, when having regard to the applicant’s representations at interview. The delegate gave weight to the applicant’s representations. It was open to the delegate, acting rationally to arrive at the decision he did that the incorrect information provided in the visa application, which was not available to the delegate who originally granted the applicant his student visa, outweighed the reasons against cancellation.
Ground Three
The respondent contends that the applicant’s ground of legal unreasonableness is incorrectly premised on the notion that s 109 of the Act and reg 2.41 of the Regulations apply to a visa cancellation under s 116(1)(d) of the Act. It may be accepted that an administrative decision will be legally unreasonable where it can be shown to be arbitrary, capricious or plainly unjust; (see: Pandey at [41(c)] and Li at [28]).
This is an outcome-focused approach for legal unreasonableness without any specific jurisdictional error being needed to be identified; (see: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (“Stretton”) at [6]). However, regard must be had to the terms, scope and purpose of the statutory source of the power such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power; (see: Stretton at [11]). However, where reasonable minds might differ, based on the same set of factual circumstances, through a logical reasoning process but arrive at a different outcome, there is no jurisdictional error.
The applicant’s contentions of unreasonableness are in effect disguised arguments for merits review in circumstances where merits review is unavailable. The applicant submitted that it was open to the delegate acting rationally and reasonably to conclude that in the circumstances of this case the arguments against cancellation were outweighed by the provision of incorrect information in the applicant’s visa application relating to the previous refusal of the student visa to the US in 2021.
In any event, no information was before the delegate as to the reasons for the refusal of the US visa. The delegate considered and accepted the applicant’s representations at interview that he had been honest, and the error was the fault of his immigration agents and gave these matters some weight against cancellation. In these circumstances, it cannot be said that the decision arrived at by the delegate is legally unreasonable.
CONSIDERATION
Both parties agree as to the applicant’s failure to disclose in his student visa application that he was previously refused an application for a student visa to the United States. It is common ground between the parties that such a refusal gives rise to a ground for cancellation of his Australian visa.
Parliament has determined the provision of incorrect information in a visa application to be serious enough to warrant a stand-alone ground for cancellation of a visa. It is also common ground between the parties that this information was not before the original delegate, who granted the applicant his Australian visa. If it were before the original delegate, it is possible a different decision may have been made, although the Court makes no finding on this and does not take that matter into consideration.
The Court also received an assurance from Counsel appearing for the Minister that there was no other adverse information available to the delegate that cancelled the applicant’s visa. Further, the reasons for the refusal of the US student visa are unknown to the parties.
This matter then turns entirely on whether the delegate gave proper genuine and realistic consideration to the matters put by the applicant after being given the NOICC, and whether or not the ultimate decision is legally unreasonable.
In relation to the first matter, the Court is satisfied that the delegate did give proper genuine and realistic consideration to the matters raised by the applicant at interview as he was provided with the NOICC.
A conclusion that a decision-maker “has not engaged in an active intellectual process will not be made lightly and must be supported by clear evidence”; (see: Jabari at [55(1)] citing with approval Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [48]). What is required is the reality of consideration by the decision-maker, with the Court in undertaking judicial review being required to assess, in a qualitative way, whether the decision-maker has, as a matter of substance, had regard to the relevant matter; (see: Jabari at [55(2)]). The onus of proof lies on the applicant to establish, on the balance of probability, that a relevant matter was not considered, taking into account that the reasons of the decision-maker must be read fairly and not in an unduly critical manner; (see: Jabari at [55(3)]).
These matters raised by the applicant as to why his visa should not be cancelled are set out at Court Book [110] – [113] in the decision record. The Court is satisfied that they properly reflect the oral answers given at interview by the applicant. The delegate accepted that the applicant was studying Civil Construction in Australia; that there was no evidence that he had not complied with any conditions of his visa and that there may be hardships that arise from the cancellation of his visa, which the applicant did not raise in interview.
The delegate acknowledged that the claim that the non-disclosure of his US visa refusal was the result of a mistake by the applicant’s migration agent. The delegate acknowledged that the applicant was co-operative with the process and appeared to have been generally forthcoming during questioning and interview. The delegate also acknowledged the consequences to the applicant of his visa being cancelled. Each of these matters was given some weight against cancelling the applicant’s visa.
Considering the decision record, the Court is not convinced that the delegate did not engage in a proper, genuine and realistic consideration of the matters put by the applicant or did not engage in an active intellectual process. Each was considered and given some weight. There was then a final weighing up of the matters in favour of and against cancellation. In the proper exercise of his discretion, the delegate found the matters in favour of cancellation outweighed those against. Ground two has no merit.
Ground three is an allegation of legal unreasonableness, in the sense that the outcome is arbitrary, capricious or without common sense; (see: Singh at [44]). The “intelligible justification” (for the decision) must lie within the reasons the decision-maker gave for the exercise of the power. It will be a rare case where the reasons demonstrate a justification, but the ultimate exercise of the power would be seen to be legally unreasonable; (see: Singh at [47]).
In coming to a conclusion based on an outcome-focussed approach, the Court will not find error if the outcome is within the legitimate area of decisional freedom of the decision-maker within which minds might differ; (see: Stretton at [7]). The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable); (see: Stretton at [8]).
There is no doubt that the conclusion arrived at by the delegate is harsh. However, the Court is not convinced that it lacks a rational foundation, or an evident or intelligible justification. The delegate gave weight to the matters raised by the applicant, but found the reasons for cancellation outweighed the reasons for not cancelling the applicant’s visa. The decision is not of a character that legally unreasonable, noting the stringent test for legal unreasonableness; (see: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 551[1]). Ground three has no merit.
In these circumstances the application must be dismissed.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 28 June 2024
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