Contreras v Minister for Immigration - [2019] FCCA 2999

FEDERAL CIRCUIT COURT OF AUSTRALIA

CONTRERAS v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2999

Catchwords:
MIGRATION – Cancellation of visa – incorrect answers to questions on visa application forms – whether alleged lack of knowledge of criminal charge exculpatory – application for review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.107, 107A, 109

Cases cited:

KN v SD & Anor (2003) 176 FLR 73
CHZ19 v Minister for Home Affairs [2019] FCA 914

Kaur & Ors v Minister for Immigration and Border Protection & Anor (2017) 256 FCR 235

Minister for Immigration and Citizen v SZIAI [2009] 259 ALR 429
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant:

DORA OLIMPIA CONTRERAS

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 776 of 2016

Judgment of:

Judge Egan

Hearing date:

12 September 2019

Date of Last Submission:

26 September 2019

Delivered at:

Brisbane

Delivered on:

22 October 2019

REPRESENTATION

Counsel for the Applicant:

Mr M. Albert

Solicitors for the Applicant:

JK Legal

Counsel for the Respondents:

Mr G. Hill

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The further amended application for review filed on 18 September 2019 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 776 of 2016

DORA OLIMPIA CONTRERAS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a Mexican citizen who applied for a student visa on 28 December 2011. She answered in the negative to the first two questions posed in Question 58 of the relevant visa application form which were as follows:[1]
[1]        Court Book (CB) page 27.
Have you, or any member of your family unit included in this application, ever:
Been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?                 No             Yes
Been charged with any offence that is currently awaiting legal action?   No              Yes
Question 76 constituted a certification by the applicant that the information supplied by the applicant on the application for the student visa form was correct. [2]
[2] CB page 33.
The student visa was granted on 17 January 2012.
The applicant applied for a partner visa on 2 February 2013. The same type of questions were asked in the application for partner visa form, and answers to the same effect were given by the applicant when filling out such form. The partner visa was granted on 17 July 2014.
On 27 July 2015, orders affecting the applicant, the applicant’s former spouse, and the applicant’s child, were made by a Federal Circuit Court judge exercising jurisdiction under the Family Law Act 1975 (Cth)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 2999
Decision Date: 22 October 2019

CaseChat Overview and Summary

The applicant, Contreras, sought judicial review of the Minister for Immigration's decision to cancel his visa. The cancellation was based on Contreras's alleged provision of incorrect answers to questions on his visa application forms, specifically concerning whether he had been charged with any criminal offences.

The primary legal issue before the court was whether Contreras's asserted lack of knowledge of the criminal charge constituted a defence or an exculpatory factor that would render the Minister's decision to cancel his visa unreasonable or unlawful. The court was required to consider the nature of the questions asked on the visa application and the applicant's obligation to provide truthful and accurate information.

Judge Egan found that the questions on the visa application form were clear and unambiguous, requiring disclosure of any criminal charges, regardless of the applicant's personal knowledge of the specific details or outcome of those charges. The court reasoned that the obligation was to disclose the existence of a charge, and an applicant's ignorance of the charge did not negate the fact that incorrect information had been provided. Consequently, the court held that the Minister was entitled to cancel the visa based on the incorrect answers given, and the application for review was dismissed.

Orders