CPC22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 734
•2 September 2022
Federal Circuit and Family Court of Australia
(DIVISION 2)
CPC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 734
File number(s): MLG 1750 of 2022 Judgment of: JUDGE VASTA Date of judgment: 2 September 2022 Catchwords: MIGRATION – Cancellation of Visitor (Businesss) Visa – whether Minister’s decision affected by jurisdictional error – where no error established in Minister’s decision – application dismissed Legislation: Acts Interpretation Act 1901 (Cth)
Migration Act 1958 (Cth) s 25D, s 109, s 116, s 118A, s 119, s 120, s 127, s 189(1), s 192
Migration Regulations 1994 (Cth) reg 2.43(1)(i)
Cases cited: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Nathanson v Minister for Home Affairs [2022] HCA 26
Division: Division 2 General Federal Law Number of paragraphs: 205 Date of last submission/s: 31 August 2022 Date of hearing: 31 August 2022 Place: Brisbane Counsel for the Applicant: Mr Guo Solicitor for the Applicant: Asylum Seeker Resource Centre Solicitor for the Respondent: Australian Government Solicitor ORDERS
MLG 1750 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CPC22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
2 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The name of the Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The Application filed on 22 July 2022, as amended on 31 August 2022 be dismissed.
3.The Applicant pay the Respondent’s costs of and incidental to the application fixed in the sum of $7,853.00.
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 VASTA
Introduction
This is an urgent application for judicial review. On 14 July 2022, the Applicant, CPC22, arrived in Melbourne after boarding a plane in Kuala Lumpur. The Applicant travelled on a passport from Sierra Leone and had been granted a visitor (subclass 600) Visa.
This Visa had conditions for business activity and for a maximum of three months study. The Visa was granted on 29 June 2022 and the visa holder was not allowed to arrive in Australia after 29 September 2022 with a length of stay of three months from the date of arrival.
Upon arrival in Melbourne sometime after 7 AM, the Applicant was not “immigration cleared”. He was interviewed by officers from Australian Border Force who were delegates of the Minister at 8:10 AM. He went into an interview room shortly after 8:30 AM.
There were five interviews conducted with the Applicant and these were all recorded.
Shortly after 2 PM, the delegate cancelled the Visa of the Applicant. On 22 July 2022, the Applicant urgently asked this Court to review that decision.
This Litigation
The matter came before me on 5 August 2022. At that time, the application was for me to transfer these proceedings to the Federal Court. The reason for this was said to be that the Applicant had launched proceedings against the Commonwealth of Australia for false imprisonment and that the false imprisonment proceedings had been commenced in the Federal Court.
It was said to me that the matters to be considered upon a judicial review of the decision to cancel the visa would be the same issues that were raised in the false imprisonment proceedings.
I disagreed and pointed out that if the Applicant sought an urgent hearing, I would accommodate this as soon as possible. The Applicant, who had been in immigration detention for two weeks at that time, wanted the matter to be heard urgently. I set the matter down to be heard on 31 August 2022 and gave a timetable for the filing of material.
Notwithstanding that I had not made any orders regarding the filing of any affidavits, the Minister filed an affidavit that annexed transcripts of the five interviews. The Applicant himself filed an affidavit and the solicitor for the Applicant filed two further affidavits. Those further affidavits annexed the PAM 3 handbook as well as a USB which depicted the CCTV footage (without sound) of the Applicant in an interview room at the airport.
On the morning of the hearing, the Minister asked for an adjournment of the review application. The Minister claimed that he had been taken by surprise by some of the matters in the affidavit of the Applicant. The Minister said that he wished to put on further evidence in reply to the matters that had been deposed to by the Applicant. I refused the application for adjournment and the matter proceeded to hearing.
I did so because this matter had been set down for urgent hearing and the Applicant has been in immigration detention since the afternoon of 14 July 2022. Whether I allow the review or dismiss the review will obviously affect the Applicant; but to leave him languishing while the Minister seeks more time and more evidence to put before the Court, is not in the interests of justice. This means that some evidence isn’t tested and it has been a matter for me to decide whether I accept the evidence that is before me. It has also meant that this decision has been made very quickly. I have heard this matter on 31 August 2022 and I go on leave for five weeks from the afternoon of 2 September 2022 and in between those times, I must still deal with the matters that are the usual lot of a Judge in this Court.
For the same reasons that I refused to grant an adjournment, I need to make a decision in this matter very quickly. I do not have the luxury of pronouncing orders and providing reasons at a later time. Both parties have inferred that if the decision is not to their liking, there will be an appeal. The provision of reasons could not wait until my return from leave.
The visa application
On 28 June 2022, the Applicant applied for a visitor short stay Visa. In that application, the Applicant applied for the “business visitor stream” which is a business visit for meetings, conferences or negotiations but not for work. The visa application detailed that the Applicant needed to be in Australia to attend an international conference on business, economics, management and sustainability (BEMAS) which was occurring on 1-3 July 2022 at James Cook University in Townsville.
In the application, the Applicant said that he was part of a delegation from the government of Sierra Leone. The Applicant named four other “business associates” who would be travelling companions. The Applicant detailed that his length of stay in Australia would be “up to 3 months” and that his planned arrival date was 30 June 2022 and his planned final departure date was 4 July 2022. The Applicant said that he would not be undertaking a course of study in Australia.
The Applicant detailed that he was a manager with the Ministry of Information and Communication in Sierra Leone and had been so since 8 October 2018. He said that his stay in Australia would be supported by “current overseas employer” and that the type of support would be “all costs”. He also said that he had a letter of support from the Government of Sierra Leone.
The Applicant detailed that the conference that he wished to attend was an international conference – BEMAS 2022 which was to be held at James Cook University from 1 July 2022 to 3 July 2022. He gave the name of the Australian business contact as Taha Chaiechi who was the general chair of the conference.
The supporting documents included with the application were:-
·a letter from his employer detailing his current role
·his conference registration
·his letter of support from the government of Sierra Leone (as evidence of his financial status and funding for the visit)
·a letter from his employer with reason for travel to Australia
·a pay slip
·his passport
·a passport photograph
At CB 29, the letter from Professor Chaiechi, confirming that five persons from the Government of Sierra Leone (including the Applicant) had registered for the conference, is reproduced. At CB 30, a letter from the Office of the Clerk of Parliament of Sierra Leone is reproduced.
At CB 31, a letter from the Ministry of Finance of Sierra Leone is reproduced. It relevantly includes the following paragraph:-
On that note I write to confirm the Ministry of Finance concurrence to fund all travel related expenses including return air tickets, Visa fees and costs for airport transfers to ensure Sierra Leone’s participation in the above-mentioned event
At CB 32, another letter from the Government of Sierra Leone addressed to the Australian Embassy in South Africa is reproduced. This letter is one that asked for all assistance to be given to enable the five delegates from Sierra Leone to be given the appropriate visas to enter Australia and to attend the conference.
The Applicant has said that he did not personally prepare and lodge the visa application but that a government officer did so for him. On the evidence before me, this can be accepted. As previously noted, the Visa was granted on 29 June 2022 and that notification is reproduced at CB 39.
The arrival of the Applicant
Around 07:00 hours on 14 July 2022, the Applicant’s flight arrived in Melbourne. It would seem that the Applicant flew from Lungi International Airport in Sierra Leone to Istanbul. From Istanbul, the Applicant flew to Kuala Lumpur. From Kuala Lumpur, the Applicant flew to Melbourne with a stopover in Denpasar.
The Applicant filled out an incoming passenger card which gave his intended address in Australia as “Space Hotel”. The Applicant ticked the area that indicated that his “main reason for travel” was “business”.
The Applicant presented his passport and incoming passenger card at immigration clearance. It would seem that the officer queried the information and another officer soon arrived.
Notes of the first communication with the Applicant
Contained in the Court Book, starting at CB 110, are notes of communication between a Border Force officer and the Applicant. The notes record the starting time as 08:10 hours. According to these notes, the Applicant said that he came to Australia to go to James Cook University but he was not sure of its location; he said that the contact details were in his documents.
When he was asked what he was going to do at that University, the Applicant said that he was attending a workshop for 14 days which started on Tuesday, 12 July 2022 (that is, two days before). The Applicant said it was a communication workshop and he was a participant.
The Applicant was asked about accommodation and paid sponsorship and he said that he was staying at the Space Hotel which was paid for one week. He said that the Ministry of Information and Communication had sponsored him and had organised his accommodation.
The Applicant said that his occupation was a communication specialist and that this was his first trip to Australia. When asked about the directions to the University, the Applicant answered that he would contact the University and that they would give him directions.
The Applicant said that four or five people from his country were supposed to come as well. He said that he was not aware of their names but HR have the names of all the others who were supposed to travel with him. He said that the Ministry lodged his application.
First interview - 08:34 hours and events leading up to the recording
The notations state that the Applicant entered the “room” at Melbourne Airport Border Clearance at 08:33 hours. Recording then commenced (this interview has been transcribed and is annexed to the affidavit of Thomas Creedon).
The following parts of the interview are of interest:-
Q:- before we start the interview, we want to let you know some of the procedures. First of all, you do give us the consent for me to interview you, yes or no? Do you want me to interview you about this trip to Australia?
A:- yes
Later in the interview:-
Q:- are you willing to participate in the interview?
A:-I am willing
Q:- if you decide at any time that you don’t want to, just let us know, okay? And then based on the information that we have we will make a decision.
The reason that those exchanges are interesting is that they correlate with the record of the Department which is contained at CB 104. At CB 106, the pro forma interview document states that “if the pax does not wish to participate in the interview you can continue with the process without placing them in questioning detention, however if they try to leave you may need to place the passenger in questioning detention under s 192”.
The significance of these exchanges will become apparent later in these reasons.
During this interview, the Applicant was asked about whether he knew anyone in Australia and he said that he had two colleagues. He said that their contact details were in his phone. He was asked how much money he had to spend in Australia and he replied that he had $US350.
The Applicant said “then during the course of the trip, I will have to request for an invoice at the hotel where I stay so I can send it to me, to my ministry, and then they will reimburse me through money transfers”.
The Applicant said that he came to Australia on a business trip to have “a business” with the James Cook University. He was asked where James Cook University was and the Applicant answered that he knew that it was in Australia. He was asked “where in Australia it was” and the Applicant answered “I can’t tell you guys that question, because it surely in the documents that were submitted to me by the Ministry”.
He was asked how he was going to go to James Cook University from Melbourne and he answered that “their contact is on the documents that I give to you”. He said that he was going to attend a workshop at the University which was of 14 days duration. He was asked when the workshop would start and would finish. The Applicant answered that the workshop started on the Tuesday (that is, two days ago). He said that this was a communication workshop with topics on human rights. He was asked what role he would play in the workshop and he said that he was a student/participant.
The Applicant said that the Ministry had booked a hotel for him and that they had sponsored him. He said that the Ministry was the Ministry for Information and Communication and that they had sponsored the trip and given him the $350.
The Applicant said “then because I cannot tell how much I will spend, so when I enter the hotel I will request for an invoice for breakfast, lunch and dinner. Based on that invoice I will send to them and then they will money transfer”.
The Applicant reiterated that he didn’t know where, in Australia, James Cook University was but he knew that he was presently in Melbourne. He was asked how he would get to James Cook University if, for example, it was in another city. The Applicant answered “yeah, I will communicate to them. They will send me money if this one I have with me is not enough to take me there, because I have already paid for the hotel. Paid from my insurance”.
The Applicant said that his Ministry had already made part payment for the hotel and paid his “insurance”. The Applicant said that he was told by his Human Resource Manager that he was to come “here” and that the University would ensure that they take him to the hotel, that they have already paid for, and then from the hotel to the University and then return.
The Applicant told the delegate that this was his first time in Australia and he thought that there would be someone with a placard at the airport in Melbourne (presumably to meet him). There was much discussion as to how the Applicant was going to get to his hotel and to James Cook University. The Applicant said “Here’s what I have said to you. When you come out the airport, you can get the airport taxi on the stand, you show them and they take you to the collection point if they cannot go right there. That’s why they give you a little bit of allowance to take you there, and if you stop off you can communicate to them and then they reimburse you”.
This interview was suspended at 09:00 hours.
Second interview - 09:29 hours and events leading up to the recording
On the CCTV footage, it can be seen that the officers leave the room and one of them returns about 10 minutes later with a cup of tea. The Applicant does take a sip. There seems to be gesturing towards the back door and the officer then leaves the room. The Applicant puts his head on the desk at one stage and five minutes later stands up and walks out the room but returns about 30 seconds later and sits down at the desk.
During this time, officers of Border Force found, and contacted, the Space Hotel. The notes reproduced at CB 117 show that the Space Hotel was located at 380 Russell Street (which is within the Melbourne CBD area). The hotel was booked for “days” which seems to have happened on “10 July 11:32am”. The room was paid with a JP Morgan card issued in the United States. The cost was $117.50 for the first night and there was $1200 balance remaining. From the notes, the visa card securing the booking was under the name of Paraskevi Costalas.
At 09:29 hours, the recording recommenced. The Applicant explained that the Ministry were the ones who made all the Visa arrangements and procured the invitation documents. The Ministry were also responsible for booking his accommodation.
The questioning then revolved around two letters purportedly from James Cook University that were in the possession of the Applicant. The first letter (which is reproduced at CB 29) is a letter that was used as supporting documentation for the Visa application.
The second letter (which is reproduced at CB 101) is exactly the same as the first letter except that the body of the letter has been changed. It purports that Professor Chaiechi has invited the Applicant to “visit us at the James Cook University on a learning visit”. It also states that the Applicant “is expected to arrive on 14 July and depart Australia on 23 August 2022”.
The Applicant explained that even though the dates in the second letter spanned five weeks, he would not be staying beyond two weeks because his job would not allow him to leave for that amount of time.
This interview was then suspended at 09:41 hours.
Third interview - 11:48 hours and events leading up to the recording
The CCTV footage for the next two hours shows that the Applicant would sit up in his chair or put his head down on his desk and rest his head on his hands. An officer came in and spoke to the Applicant at some stage and the Applicant is seen shaking his head (as if indicating “no”). At one stage the Applicant has gone to the back door of the room. That door cannot be opened. Later the door is opened and the Applicant leaves the room for about a minute before coming back into the room and putting his head down on the desk.
During this time, Border Force also contacted Professor Chaiechi. She told the officers that the first letter (reproduced at CB 29) was a genuine letter that she had sent to assist in the issuing of visas for the persons listed to attend the conference at James Cook University. She sent to the officers the correspondence in which she had engaged with a Sulaiman Musa who is said to be a Public Relations Manager with the Sierra Leone Maritime Administration. This correspondence ended on 18 June 2022.
Professor Chaiechi confirmed that the second letter was a forgery. She told the officers that “I am disturbed by the fact that my original letter (CB 29) has been tampered with. I was unaware that (the Applicant) was supposed to arrive late in Australia. And the letter that indicates those dates is forged. They were all supposed to attend the conference which was held on 1-3 July. No post-conference activity nor any collaboration plans were discussed either”.
The recording recommenced at 11:48 hours. The Applicant was asked whether he needed any water or anything to eat. The Applicant said that he wanted some food but he didn’t need any water. The officers said that they would get him something to eat soon.
The officers then told the Applicant that they believed that there was a ground to cancel his visa. They reiterated that they had not yet cancelled it.
The officers spoke of having issues with the accommodation and the ability to support himself in Australia. The officers also spoke of having issues with the false letter which purported to ask the Applicant to visit for a “learning trip”.
The officers then issued a notice of intention to consider cancellation (NOICC). The Applicant asked for the officer to go over that again for him, which they did. He was asked to sign the document to acknowledge that he had been served with the NOICC. The Applicant asked “what am I signing?” The Applicant said that he wanted to read the document before he signed it. The Applicant was told that it was simply an acknowledgement that he had received the notice.
The Applicant asked “why can’t you give me the opportunity to read it, to go through it? Why can’t you give me the opportunity to go through it, before signing?” He was told that he would be given the document to read after he had signed. He did sign the acknowledgement and the officer left him with papers.
The officer then said that he would “take these here and I’ll give you 10 minutes and I will come back to you”. The CCTV footage shows that there were a number of papers on the desk and that the Applicant did sign a paper. The footage shows that the officer gathered up a number of papers and left papers with the Applicant.
The Applicant then asked if it were possible for him to have his phone back. He was told that “we can’t give you the phone now” and then told that afterwards they would give him the phone.
The Notice
The notice is reproduced at CB 45. It is a pro forma document with details then typed and inserted. There is a space for insertion of the “specifics (particulars) of the ground and the information because of which the ground appears to exist”. In this area is typed words “see attachment A”.
At Item 7 of the Notice, there is an explanation about the opportunity to comment. Importantly there are a number of “dot points” at the end of the item. One of those dot points is “the degree of hardship which may be caused to you or your family”.
At item 10, the Applicant has signed the acknowledgement.
Attachment A is reproduced at CB 49. It gives particulars of the grounds that form the “intention”. It details that all of the factors that “do not appear to be consistent with the behaviour and circumstances expected of a genuine Visa holder” considering that the Applicant:-
·appears to have insufficient funds to support his stay
·has a lack of knowledge regarding his travel, specifically the location of the conference
·presented a counterfeit document to purport his genuine travel intentions
The Applicant signed at the bottom of attachment A and dated it. This is consistent with what is seen on CCTV.
The Applicant has now claimed that he was not left with the whole NOICC and claims that this is consistent with what is seen on the CCTV (and may be consistent with notations made on the order clearance referral report which is reproduced at CB 126). I will speak of this later in these Reasons.
The fourth interview - 12:24 hours and events leading up to the recording
The CCTV footage shows that the Applicant has been reading the document that he had in front of him. It also shows an officer giving the Applicant a cup of noodles. It shows the officer returning later with a packet of biscuits which she places on the desk. It shows the officer entering the room again and bringing a drink. After some time, the Applicant walks to the door and appears to knock. Someone opens the door and there is a conversation. Soon afterwards another officer enters with sugar packets and gives them to the Applicant.
When the recording recommenced at 12:24 hours, the Applicant was asked what he had to say. The Applicant said that he had no knowledge that the second letter was fake. He said that “I want to plead that the immigration department in Australia or whatever is the institution responsible for immigration activities to grant me at least 48 hours here so that I can ask from home for them to support me at least a short-term course at that university be paid for me”.
The officers said “so you want to contact the Department of Immigration to support you for that” and the Applicant replied “short-term course in Australia before going back… Give me at least 72 hours to do that. I will communicate… And I request back home so that they can do the finance to the institution necessary”.
He said that he wanted to do a short-term course before he left so that he “could reported back home”. He said it could be financed even personally by his Ministry or by himself. He said that he didn’t want his visa to be cancelled and asked “let me see the business opportunity and also the education opportunity since I’m working for this ministry. Our government intend to have their workers to have further studies in developed countries, since we are all in the richest country… You consider it for knowledge extension”.
The recording ended at 12:32 hours.
The fifth interview - 13:58 hours and events leading up to the recording
After the fourth interview, it would seem that the officers were considering whether to cancel the visa. In the meantime, other officers have entered the room with what appears to be the phone of the Applicant. There have been conversations and papers have been signed. The Applicant has looked through the phone and scrolled through it. At one stage, the Applicant was showing officers something that was on the phone.
When the recording commences at 13:58 hours, the officer (or the delegate for these purposes) announces to the Applicant that his Visa has been cancelled. The Applicant was given the notice of decision and signed the notice. It was explained to the Applicant that because the visa had been cancelled that he might be refused immigration clearance and that he may also be detained and removed from Australia as an unlawful non-citizen.
Another officer then entered the room. That officer told the Applicant that he reasonably suspected that the Applicant was an unlawful non-citizen in the migration zone as he was someone who did not have a visa to enter or remain in Australia. That officer then detained the Applicant pursuant to s 189(1) of the Migration Act 1958 (Cth) (“the Act”).
The grounds of this application
The grounds of this application were amended on the morning of the hearing despite the very strong objection of the Minister. There were seven grounds that were argued.
Premise of being in immigration detention
The first ground is that the Minister failed to afford the Applicant procedural fairness. There were seven “sub- grounds” to this ground and the argument was that the cumulative effect of all seven instances of unfairness would lead to a finding of procedural unfairness that amounted to a jurisdictional error.
The premise that underpins the ground is that the Applicant was in “detention”. The Applicant argues that whilst the Migration Act uses terms such as “immigration detention” or “questioning detention”, such distinctions do not really matter; detention is detention is detention.
The argument is that if the Applicant was in “detention”, s 192 of the Act applies. The Applicant argues that this section confers other aspects of procedural fairness which must be observed.
Was the Applicant “detained” or in “detention”?
The Migration Act interprets “to detain” to mean “to take into immigration detention” or to “keep, or cause to be kept, in immigration detention”. The term “immigration detention” is defined as being in the company of, and restrained by, an officer or another person directed by the Secretary or ABF Commissioner to accompany and restrain the detainee.
There is no evidence that the Applicant was restrained by any officer. He certainly may have been in the company of an officer but more is needed than just that for a person to be said to have been in “immigration detention”.
It has been submitted to me that the Applicant was restrained because he could not go anywhere on 14 July 2022 from 08:30 hours onwards. However, the Applicant could not lawfully go anywhere from that time because he had not passed immigration clearance and he could not return to the terminal because he was not a passenger. This meant that there were very few places he could go.
It is instructive that the Applicant was asked whether he would consent to being interviewed and whether he was willing to participate in the interview. It is also instructive that he was informed that if he decided at any time that he didn’t want to be interviewed that he had to let the officers know. The Applicant acknowledged and agreed non-verbally.
It is also instructive that the pro forma interview record (at CB 106) instructs the officer that if the “passenger” does not wish to participate in the interview, the process can be continued without placing them in questioning detention, however, if they tried to leave “you may need to place the passenger in questioning detention under s 192”.
This is why the initial exchange at the beginning of the interview is so significant. Notwithstanding that the Applicant could not lawfully go anywhere else, he still voluntarily chose to accompany the officers to the interview room and voluntarily chose to be interviewed.
The Applicant has argued that the Applicant had no choice other than to comply with requests. He could not leave or go anywhere else and the effect of whether he voluntarily chose to accompany the officers, or not, was exactly the same; he would not be able to leave the particular area. The Applicant points to those parts in the CCTV footage where the Applicant seemed to be assessing whether he could open a particular door or not and that, on the occasions where the Applicant did leave the room, he returned to the room soon afterwards.
All of this may be so, but it does not derogate from the fact that the Applicant still chose to do so. He had a choice as to whether to willingly accompany the officers from the area where he first presented his passport and incoming passenger card or to not willingly accompany those officers. He had a choice as to whether to willingly be interviewed or to refuse to be interviewed. On both occasions, he willingly chose to do what he did.
He was not ever restrained by any officer. This means that he, therefore, was never in immigration detention. This was the case until the other officer told him that he was now in immigration detention at around 14:02 hours.
If the contention of the Applicant were correct, then every passenger who disembarks from a plane and enters the passport control area, is then in immigration detention. That is because they have not been immigration cleared and they cannot leave that area until they are immigration cleared. They are, whilst in that area, in the company of officers and are restrained by the officers into complying with the directions to present passports and passenger cards to officers. Once they have cleared immigration, they are no longer in detention.
This is an absurd proposition and one that is not reflected, in any way, shape or form, by the Migration Act. A person is not in immigration detention unless they have been restrained by the officer either by word or by actual application of force.
It follows from this that the Applicant was not in immigration detention, questioning detention or any other form of detention from 08:10 hours to 14:02 hours on 14 July 2022.
The consequences of not being in detention
The Applicant was voluntarily interviewed and answered the questions that were asked of him. This means that all that he was doing, from 08:10 hours until 11:48 hours, was assisting officers in their enquiries in relation to the Applicant’s travel to Australia. There were no rights or obligations that were owed to the Applicant because he was not in that interview room involuntarily.
This means that s 192 of the Act has no application to the present review.
Allegations
In his affidavit of 22 August 2022, the Applicant makes a number of serious allegations. With respect to the initial questioning at 08:10 hours, the Applicant said that the officers were making statements to the Applicant that he was lying and that he was a criminal and that they did not speak to him as if he was a human being. He said that he felt very mentally confused and that he was shivering.
He said that he was then led to a small room where both doors were closed and that he was left there alone for a while. He said that he could not leave and that there was a long bench for him to sit on. He said that he was then moved to another room with three chairs and a table where he was kept for six hours.
He said that he was exhausted, tired, hungry and upset. He said that he could not understand what was going on. He said that two immigration officers came into the office and he explained what he was feeling to them. He said that they told him that they were going to conduct a recorded interview. He said that they then turned the recording off. He said that, after this first interview, he was tired and he put his head on the desk to try to sleep but he couldn’t sleep. He said he felt confused and worried about what was happening to him. He said he got out of his chair and went to the open door and he called out to them that he wanted a lawyer. He said that he got no response.
He said that there was a second time that he asked for a lawyer but he does not know when during those six hours that this occurred. He said that when he asked for a lawyer, on the second occasion, the officers told him that it was not their responsibility to find him a lawyer. He said that he asked for his phone so that he could call a lawyer and he was told that they could not give him his phone back and that he wasn’t allowed to use it. He said he was not offered any other phone to use either.
He said that before the recording re-started, the officers spoke to him and said that they were about to continue with interview. The Applicant said that he told them that he was tired and he needed somewhere to lie down. He said that the officers told him that he had to cooperate and that he couldn’t lie down at this time as the interview would not take long. They told him that he could lie down after the interview. It was at this time they then turned on the recording.
He said that even though they asked him during the interview whether he needed to eat or drink, he said no because he was totally confused. He didn’t understand why they were asking him this when they had previously said no to everything that he had asked.
He said that they then left him for a long time and that he put his head on the desk to try to sleep but he found it difficult to sleep. He said that, after about an hour and half, one of the officers came back in. He said that he told this officer that he was exhausted and that he needed to sleep because he was confused and didn’t know what was happening. He said that he told the officer that he was dizzy and he had to lie down. He said that they told him that he couldn’t sleep and that they would start the interview again soon and he would have to wait until after they had finished to sleep.
He said that they left the room after this short discussion and he tried to sleep again but he couldn’t. He said he was hungry and he was in pain and that there was nowhere for him to lie down. He said he was scared and worried about what might happen to him if he fell asleep. He said that he told them that he was so hungry that his stomach felt like it would collapse and they said that they would get him some food soon.
He said that the officers came in and woke him up and started the recording again. He said that they asked him to sign a paper. He said that he asked them what the paper was and they replied it is a record of what they had already told him. He said that he asked them to let him read it before he signed it but they refused and said to him, in an authoritative manner, that he should sign it before they would allow him to read it. He said that he eventually signed it involuntarily because he was scared. He said that they did not even let him look at the paper; they just pointed to a box and told him to sign. He said that he didn’t understand what he was being told.
He said he was left with one document but all the other papers that he had signed had been taken away. He said that he was so exhausted that he now doesn’t remember what document it was that they left him with. He said he was delirious and not in a state of mind to be able to understand what he was reading.
He said that he told them that he was hungry and that he was dizzy, and he felt like he was going to collapse. He said that they told him he could sleep after the interview and it wouldn’t take very long. He said that the interview took many more hours. After he told them that he was going to collapse, they left him alone in the room for 20 minutes and he fell asleep in the interview room with his head on the desk. He said he was brought some noodles but he felt like he couldn’t eat the noodles. He said that he was brought some biscuits which he ate while he was trying to read the document but he couldn’t understand what it was saying.
He said that the officers came in with more papers and that he didn’t know what he was allowed to say in response when the questioning resumed. He said that he didn’t know and that they did not tell him that he could raise other reasons why his visa should not be cancelled such as whether there were any reasons he didn’t want to return to Sierra Leone. He said that he was exhausted and confused and, whilst they gave him a chance to respond, he cannot remember what he said to them because he did not understand what was happening.
He said that an hour later, two female officers came into the room with his phone. They handed it to him and told him to unlock WhatsApp. He told them that he couldn’t because it was locked. They made him try and watched him try to open it. After that they took his phone back and left the room.
The Applicant said that he was then told that they had officially cancelled his visa. They took him into another room and allowed him to sleep for a short time before taking him to the detention hotel. He was given his phone back after his visa had been cancelled and after they took him out of the room in which they were questioning him.
He said that, as far as he can remember, he was never given a copy of his notice and he was never given an opportunity to read the documents. He said he didn’t understand what the officers would take into account in deciding to cancel his visa and what arguments he could make against them.
Assessment
It is difficult to make any true assessment of these allegations. They are extremely serious. The Minister wanted to put evidence before me to counter these allegations but, as previously recorded, I refused the adjournment for this to occur. This evidence is now before me and it is a matter of deciding in what way this evidence assists in the determination as to whether the decision to cancel the visa has been infected by jurisdictional error.
I do not wish to say much more about the allegations, however where an allegation has affected how it is that I must look at the particular ground of review, I have looked for corroboration of what it is that is being alleged.
Generally speaking, on the material before me there are quite a number of conflicts. The contemporaneous records do not support these allegations. This means that what has been alleged is, in effect, that all the officers who were in attendance at Border Force in Melbourne between 08:00 hours and 15:00 hours have conspired together to pervert the course of justice.
Records such as the Client Monitoring Sheet, which is reproduced at CB 108 and 109, must be a forgery if the allegations of the Applicant are correct. It records that there were no external requests. It records requests and provision of meals, water and tea. It records that there were no requests for phone calls.
Whilst I have only been shown small parts of the CCTV footage, allegations that conversations were had of a threatening nature before recording devices were operated, do not seem to be made out.
Having regard to the answers given (though I have not actually heard the interview but only read the transcript), there does not seem to be any confusion in the manner in which answers are given.
However, I am not determining whether the allegations are correct or not. All I am doing is looking at each ground of review. If there is a factual matrix that underpins the ground, I must do my best to resolve what that factual matrix actually is, on the evidence before me. After all, this is what both parties have expected me to do by the manner in which they wished this review to be argued.
Ground 1(a)
This ground alleges that the Minister denied the Applicant an opportunity to speak with a lawyer despite the Applicant’s request. I do not accept that the Applicant ever requested to speak with a lawyer. The first request is said to have been made by the Applicant shouting down the corridor and receiving no response. Whilst there does seem to be at least two times the Applicant ventures into a corridor, I do not accept it was to ask for a lawyer.
As to the second request, there does not seem to be any occasion captured on the CCTV that would correlate with what the Applicant describes. It is incongruous that, if the Applicant wished to have a lawyer, he did not ask for that when the recordings were being made. It is also incongruous that the Applicant would continue to answer questions if it was that he wished the services of a lawyer.
It would also mean that the Border Force personnel concocted a false record at CB 108 and 109.
In any event, there is no obligation on the Minister to provide the Applicant with a lawyer. The Applicant was not in immigration detention so s 256 did not apply. If there is no obligation, then there cannot be any breach of procedural fairness.
For this reason, ground (1)(a) fails.
Ground (1)(aa)
The Applicant alleged that the Minister denied the Applicant the opportunity to use his phone to communicate with a friend, relative, guardian or consular representative of the country of which he is a citizen, despite his request. As already noted, the Applicant did ask for his phone when he was given the notice. The officer told him that he could not have it at this point in time but he would get the phone afterwards.
The Applicant made allegations that he asked for his phone said that he could phone a lawyer but this is not what is recorded. What is recorded that he simply asked for his phone. After this request, the Applicant had time to consider the notice. When the officers return, the Applicant asked for 48 or 72 hours to contact his country so that they could send funds to an educational institution. It may be inferred that, in asking for his phone, he may have intended to use the phone for this reason.
However, the Applicant did not say for what reason he wanted the phone. When the officer said that they could not give him his phone at this time, he did not ask for another phone to make contact with whomever it was that he wished to make contact. This is also made clear by what is recorded at CB 108 and 109.
It seems to me that the phone was still being looked at as part of the investigation. This seems to correlate with the other officer coming into the room after the “notice interview” had concluded. This officer came into the room about three times with the phone on each occasion and it would seem that questions were being asked about the phone.
Given that the Applicant was cooperating with the investigation and was being willingly interviewed, and did not demur when the officer said that he could not give him his phone back at this time, I cannot see how there was an obligation on the investigator to give the Applicant his phone. As there was no obligation, there cannot be any breach of procedural fairness.
For this reason, ground 1(aa) fails.
Ground 1(b)
The Applicant complains that the Minister was on notice of the Applicant’s visible signs of exhaustion. I do not accept that there was any “visible sign of exhaustion”. There is nothing on the CCTV footage that I have seen that would correlate to a “visible sign of exhaustion”. Certainly, the Applicant is tired and somewhat restless, but that is a long way from being “exhausted” to the point where continuing with the interview was unfair. The Applicant was not in immigration detention.
The Applicant could have made any requests for rest or to lie down that he wished. The Applicant could have told anyone present that he was dizzy. The Applicant certainly had ample opportunity to do so. But he did not because there was no record of such requests and certainly no CCTV footage that I have seen that would correlate to making such requests. I do not accept the allegations that have been made in this respect.
At the end of the first interview, which was at 09:00 hours, the Applicant has asked whether he wanted any water. He said that “it’s too warm” and the officer said that they would open the door for him and give him some water. He was then asked “Anything else?” Instead of telling the officers that he was dizzy or confused or exhausted, he said nothing. It is instructive that the Applicant had the “courage” to tell the officers that it was too hot and they did something about it, yet there is no explanation as to why, if he were truly feeling exhausted, confused or dizzy, he would remain silent when they asked him whether there was “anything else”.
The Applicant continued to respond to the queries that were made by the officers. There is no “wishy-washy” or nonsensical answers that would in any way lead the officers to believe that the person was so exhausted as to be unable to respond in a meaningful way.
It is trite to say that Subdivision E of Division 3 of the Act is an exhaustive statement of the natural justice hearing rule in relation to the procedure for cancelling visas (per s 118A). The Applicant has failed to identify any breach of these sections.
For these reasons ground 1(b) fails.
Ground 1(c)
The Applicant claims that the respondent was told by the Applicant that he did not understand the questions put to him in the interview. This ground was not truly argued before me and with good cause. There is no evidence, in any of the recorded interviews, that the Applicant did not understand what was being put to him.
Accordingly this ground also fails.
Ground 1(d)
The Applicant claims that the Minister did not give him sufficient information to enable him to meaningfully respond to the questions put to him including failing to inform the Applicant that one of the matters that the Minister would consider in deciding whether the visa should be cancelled was whether cancellation would lead to a breach of Australia’s non-refoulement obligations.
This ground is predicated upon the premise that the Applicant was not permitted to read the notice, and, in particular, item 7 of the notice. All of the matters in item 7 had been verbally explained to the Applicant, except for the aspect relating to hardship. The Applicant had been told that the purpose of the questioning was to see whether the Applicant would be allowed to enter and remain in Australia.
It is difficult to maintain that the Applicant did not read the notice given his responses. The responses he made were all given as to the hardship that he would face if the visa were cancelled. In the response interview, which commenced at 12:24 hours, the Applicant did speak to the purpose of his travel to Australia, the circumstances in which the ground for cancellation arose (that he did not realise that the letter was fake), his compliance with his visa requirements, the consequences of cancellation and the degree of hardship which would be caused to him and his department in Sierra Leone. If the Applicant had not read this part of the notice, it is peculiar that he chose to speak about this aspect.
The Minister did inform the Applicant of all the matters that would be considered and this can be seen by the answers that were given by the Applicant. The Minister made the decision based on what the Applicant had said. If the Applicant had fears about going back to Sierra Leone, he did not voice them at all. In fact, his evidence to the Minister was that he would be going back to Sierra Leone in two weeks after he had finished his course. He had not indicated that there were any problems in Sierra Leone.
The Applicant submitted during the course of the hearing before me that there may be “non-state” actors that would cause fear (for example, ah longs in Malaysia or the Taliban in Pakistan) as distinct from having problems with the government. It was submitted that whilst the Applicant may have not talked of any trouble he had with the government, there may be other reasons that he did not wish to return to Sierra Leone. Be that as it may, the Minister is not a mind reader nor does the Minister have an obligation to make a case for the Applicant.
The Minister asked the Applicant to let the Minister know if there were any hardship issues. The Applicant did this and did not raise any issues regarding the return to Sierra Leone. This is no fault of the Minister.
There has been no breach of procedural fairness and this ground fails.
Ground 1(e)
The Applicant claims that the respondent denied the Applicant the opportunity to read relevant documents despite the Applicant’s request. This ground is a corollary to the last ground and is predicated upon the premise that the Applicant had papers taken away from him and therefore did not read relevant documents.
It is clear from the responses that the Applicant made, that the Applicant had read all of the relevant documents and made appropriate responses. It is clear that the Applicant had been notified of the intention to consider cancellation (pursuant to s 119) and had been given the appropriate information (s 120).
This ground fails.
Ground 1(f)
The Applicant claims that the original length of time that the Applicant was given to consider the notice was 10 minutes. This is apparent on the notice where it was said that the interview was to commence at 12:04 hours. The interview, in fact, commenced at 12:24 hours which gave the Applicant a further 20 minutes and an overall 30 minutes within which to make his response.
It is said by the Applicant that this was not a reasonable time. What constitutes a “reasonable time” can only be ascertained by the circumstances. In these circumstances, the issues were very clear-cut and summarised in the notice, which the Applicant had been looking at during the 30 minute break. These were that the Applicant: appeared to have insufficient funds to support his stay; displayed a lack of knowledge about his travel; and, had uttered a counterfeit document.
The Applicant was able to say that he did not know that the document was counterfeit and he was able to say that, if he were given 48 to 72 hours, his government would transfer money that would support his stay. His lack of knowledge about his travel was part and parcel of both those other considerations.
In my view, the Applicant was given a reasonable time between notice and interview and his response illustrates this fact.
This ground fails.
Ground two
The Applicant claims that the Minister failed to consider central evidence from the Applicant that his travel to Australia was being funded by his workplace. The Applicant had maintained that he was funded by his government. He said they had paid his registration for the conference and that they had booked his accommodation and paid for the first night. He said that he was to ask the hotel for an invoice and that the government would pay the hotel directly.
The Applicant claims that none of this is reflected in the reasons. Yet it is clear that this was something that was discussed during the interview process. At page 12 of the interview transcript, during the second interview, the Applicant was asked whether he knew a Mr Paraskevi Costalas (written in the transcript as Paris Kevikostiessis) and he said that he didn’t.
The fact that what the Applicant has said is not reflected in the reasons, does not mean that there has been no consideration. Whilst the Applicant has drawn the Court’s attention to s 25D of the Acts Interpretation Act 1901 (Cth), this does not mean that there was an obligation on the Minister to write down all the considerations that the Minister has made in coming to the decision.
All that is required for the Minister to do (pursuant to s 127) is to specify the ground for cancellation and to state whether the decision is reviewable. This section also legislates that failure to give notification of the decision does not affect the validity of the decision.
In the end, the Minister did note that the Applicant had stated that his accommodation had been half paid but the hotel confirmed that only one day’s accommodation was paid. This may be a factual error, however the Minister did note that the Applicant did have a letter to purport his genuine intentions whilst in Australia, and that letter (CB 31) spoke of the Government of Sierra Leone funding all travel related expenses.
It cannot be said, in those circumstances, that the Minister failed to consider this evidence.
For those reasons, this ground fails.
Ground three
In the reasons of the Minister (CB 60 at item 10), the Minister has considered the legal consequences and has said that if the visa is cancelled the Applicant:-
·will be subject to a bar…
·will be affected by a risk factor…
·may be liable to detention and removal from Australia
The Applicant contends that the first two “dot points” are correct. Those consequences will be suffered by the Applicant. The Applicant contrasts the third dot point as being incorrect because if the Applicant has his visa cancelled, he will be liable to detention and removal from Australia, not may be liable.
The Applicant contends that the Minister misunderstood the law or is ignorant of the law. The Applicant contends that a decision-maker must act on a correct understanding of the law and take into account, as a mandatory consideration, the legal consequences of the decision. Because the Minister clearly erred in such a basic way, the error is one that infects the decision and is therefore jurisdictional.
I do not agree. Whilst it may be that s 198 means that the Applicant must be removed from the country as soon as possible (which, on the evidence was to be the next day 15 July 2022), the Applicant is still in Australia. If the Minister was incorrect in the way in which the Minister phrased the reasons in item 10, it must necessary flow that, in not removing the Applicant on 15 July 2022, the Minister was acting ultra vires. Such a proposition is absurd.
Whilst what was written in item 10 is not a true statement of the law, it does not illustrate that the Minister was not acting on a correct understanding of the law. And it certainly does not mean that this decision was therefore infected by jurisdictional error.
This ground fails.
Ground four
The Applicant contends that the language used to justify the decision for cancellation reflects the language of the policy document PAM3. The Applicant also notes that the cancellation documents were pro forma documents which the Applicant says signifies that the department wanted to have consistent decision-making. The Applicant contends that these factors point to a clear intention to apply the policy in PAM3.
It was submitted that this policy contains the following statements under the heading “Weighing matters”.
As a matter of policy, delegate should not weigh matters that are against the visa holder. This is because the grounds for cancellation have already been made out. Any information provided by the visa holder should be weighed in their favour. The amount of weight to give the considerations is a matter of discretion for the delegate.
The manner in which the reasons for cancellation are written, is contradictory to that statement in PAM3. In the decision record (CB 58 and CB 60), Item 9 has five aspects to be considered and Item 10 has one aspect to be considered. The Minister has looked at what weight the factors should have “against visa cancellation”. The Applicant contends that this is proper.
However, with regard to the factors of “extent of compliance with visa conditions” and “circumstances in which the ground for cancellation arose”, the Minister has looked at whether there is weight “in favour of visa cancellation”. The Applicant refers back to the statement in PAM3 and contends that there should never be a consideration where there is weight “in favour of visa cancellation”. The Applicant contends that the consequence of this is that those two considerations have been “doubly counted” and therefore given more weight than they should be given.
The Applicant submits that this has caused the assessment to miscarry and is therefore a jurisdictional error.
The reference by the Applicant to PAM3 and the statements under the heading “Weighing matters” applies to cancellations pursuant to s 109 after the issuing of a notice under s 107. The situations are not totally analogous. The difference is that there are no prescribed matters to which the delegate must have regard in considering whether to cancel a visa under s 116 but needs to do so under s 109.
In relation to s 116, PAM3 only talks about matters that should be considered rather than must be considered. In contrast to what was said about s 109, for s 116 it states that “generally matters must be weighed in favour of the visa holder not against the visa holder”.
It is trite to say that PAM3 is a policy guide but does not have the force of law. The decision as to weighting is a matter of discretion solely to the decision-maker. If the decision-maker decides to weight something which is contrary to the general policy, that is a matter for the decision-maker. It does not have the force of law such that, in acting in this way, there is an error of law.
This complaint does not amount to illustrating a jurisdictional error. This ground fails.
Ground five
Again, this ground is premised upon PAM3 having the force of law. The Applicant talks of PAM3 “obliging” the Minister to do a certain act. This policy does not have the power to “oblige” the Minister to do anything other than act in accordance with the legislation.
In any event, the Minister did take into account the “non-refoulement” obligations but could only do so upon the evidence that was before the Minister. The Applicant did not put any evidence before the Minister that would engage these obligations. Whilst it is that the Applicant submits that “the Minister did not ask the Applicant about whether there was any reason for him not to want to go back to Sierra Leone”, the Minister did bring to the attention of the Applicant that the Minister would be looking at “what hardship may flow” from a cancellation. The Applicant answered this by pointing to the opportunity lost by not being able to have Australian education. This is why he wanted the 48 – 72 hours to have his government finance this education.
As earlier noted, it is incongruous for the Applicant to understand that hardship to him (and/or others) would be taken into account but to only choose to speak of lost opportunities and not to talk of danger in returning. This is especially so since he emphasised that he would be returning on his return ticket in two weeks’ time.
This ground fails.
Ground six
This ground was not pressed.
Ground seven
The Applicant contends that certain circumstances, when looked at objectively, point to the bias of the Minister, or at the very least, an apprehension of such bias.
The timeline, as I have accepted it, has been reproduced throughout these reasons. Consistent with the recordings, and to some extent the CCTV footage that I have seen, the Minister gave to the Applicant notice of the intention to consider cancelling the Visa of the Applicant at approximately 11:55 hours. The interview then commenced at 12:24 hours and finished at 12:32 hours. The Applicant was informed of the decision and both the Applicant and the delegate signed the form (at CB 65) at 14:02 hours.
However, on the actual decision (at CB 60), the delegate has signed the form (at item 12) and hand written the time as 12:32. What is known is that the interview concluded at 12:32 hours. The Applicant submits that this means that the decision to cancel was made at the same time that the interview concluded.
The Applicant submits that if this is so, then it is obvious that the delegate approached the question of whether to cancel the visa with a closed mind. If the delegate has had a “closed mind”, then there has been a demonstration of bias which has infected the decision making process. Even if the inference cannot be made that there was actual bias, the Applicant submits that the circumstances are sufficient that “a fair-minded lay observer might reasonably apprehend that the delegate might not have brought an impartial and unprejudiced mind to the resolution of the question that he was required to decide”.
In looking at the material before me, the logical conclusion is that the handwritten time of “12:32” is a mistake. Whilst there is no material from the Minister to this effect, I am mindful that this was a ground that was only added by leave on the morning of the hearing and that the Court refused an adjournment to allow the Minister to “put on more evidence”.
Consistent with the way in which I have approached these questions, I have simply used the principal of res ipsa loquitur and let the whole of the material before me speak for itself. The Applicant submits that the delegate must have already typed out the decision before the interview had taken place for him to have made that decision at “12:32”. This does not make any sense, let alone any logical sense.
I mentioned before that the Minister was not a “mind reader” but that would have to be the conclusion to make if it were that I accepted that this decision was made at “12:32”. This is because Item 9 of the decision contains references to statements made in the interview.
For example, in item 9, the decision maker has written that “the visa holder state (sic) that he was not aware that the letter he presented to the ABF officer was fake”. That statement was made at a time that the Applicant submits that Item 9 had already been typed. Item 9 also has a comment that the Applicant “has been cooperative and compliant during the formal interview phase with ABF officers”. The formal interview phase had not even occurred when the Applicant submits that the document had already been typed up.
For those reasons, I cannot accept that the decision was made at “12:32”. I am somewhat comforted in this conclusion because of a reference in the border clearance referral report which is reproduced at CB 126. In that report, it is noted that the time that the decision was made was 13:58 hours on 14 July 2022. Whilst this would usually be conclusive, the next item in that report is that the time that the decision was served and notified of been refused immigration clearance was that 01:18 hours on 10 July 2022 which would be before the Applicant even boarded the plane in Sierra Leone.
Nevertheless, on the evidence before me, the decision was made shortly before the officers entered the room to tell the Applicant what the decision was. Having a look at the recordings, it seems to me that this time was 13:58 hours.
As the test for bias, and apprehended bias, is a two-step process, unless the first step has been satisfied, there is no need to proceed to the second step. The first step is to identify what it is that is said might lead a decision-maker to decide the matter otherwise than on the merits. In this case, the Applicant has pointed to the fact that the decision was made at “12:32”. I have not accepted that this is the case.
Because the first step in the process has not been met, this ground fails.
Ground eight
The Applicant contends that there has been illogicality in the reasoning of the Minister. At Item 9 of the decision, the Minister has written:
The Visa holder state [sic] that he was not aware that the letter he presented to the ABF officer was fake. I have considered this response. However given the fact that the visit dates had elapsed as indicated in the genuine letter the response provided by the Visa holder appears unlikely
The Applicant rhetorically asked how anyone could conclude from the dates alone, and nothing else, that the Applicant must therefore have known that the letter was fake. There are immediate problems with such a rhetorical question. Firstly, it presumes that the conclusion was from “the dates alone and nothing else”. Secondly, the conclusion was not that the Applicant must therefore have known that the letter was fake; the conclusion was that the response “appeared unlikely”.
The Applicant contends that the first presumption is a proper one because the decision-maker did not indicate anything else in the reasons. But this particular part of the reasons cannot be exercised from the whole of the reasons and looked at in isolation. As previously mentioned, the “fake” letter is one that is taken from the “genuine” letter by deleting the body of the “genuine” letter and inserting an alternate but forged body. This is why the author of the genuine letter was “disturbed” by the tampering of her genuine letter.
This is why both letters look very similar and are both dated 2 June 2022. The Applicant was using both letters to support his assertion that he was a genuine entrant. However, the genuine letter speaks of the conference occurring on 1-3 July 2022 which would carry with it an expectation that the Applicant would have arrived before 1 July 2022. The “fake” letter purports that the Applicant was expected to arrive on 14 July 2022.
As both letters are written on the same day, there is a paradox in that the same writer on the same day expects the Applicant to arrive in Australia before 1 July 2022 and also arrive in Australia on 14 July 2022. As the dates for the first letter have already lapsed, it is open for a decision-maker to find that the response of the Applicant (that he was not aware that the letter was fake) to “appear unlikely”. Because such a conclusion is open, there is no illogical or irrational reasoning.
For this reason there is also no jurisdictional error that has been illustrated and this ground also fails.
Materiality
Notwithstanding that I have found that there has been no error by the Minister, the Minister had submitted that even if there were an error, it would not be material. Out of an abundance of caution, I have decided to make my reasons known as to why, even if there were an error, it would not amount to a jurisdictional error because it was not material.
The Applicant has referred extensively to the recent High Court decision of Nathanson v Minister for Home Affairs [2022] HCA 26 and has made the submission that if there were an error, the High Court has now said that the bar for such an error of being “material” is a very low bar.
Upon my reading of Nathanson (Supra), I am not of the view that what has been said there derogates from the principal of materiality as discussed by the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3. In Nathanson (Supra), the decision-maker did not inform the visa Applicant of an essential element to the considerations to be taken into account. This meant that the visa Applicant did not have an opportunity to address that essential element.
The High Court said that such an error was material because it went to the very nature of what the decision-maker was required to consider. Because the visa Applicant had not had the opportunity to make any submissions on this essential element, the error must be considered to be material, and therefore jurisdictional.
There are no such circumstances in this case. As has been said, there were no mandatory considerations for the Minister to take into account in making the decision to cancel. This was a decision made pursuant to s 116(1)(g) of the Act because a ground existed at reg 2.43(1)(i) of the Migration Regulations 1994 (Cth). This means that there were no essential elements that were required to be considered, by force of legislation, of which the Applicant was not informed.
With regard to any possible “error” (even though I have found that none exist), they could not have realistically made any difference to the conclusion. The conclusion was that the Minister was satisfied that the Applicant did not have, at the time of the grant of the Visa, or has ceased to have, an intention only to stay in, or visit, Australia temporarily for business purposes.
This conclusion was made because there were no business purposes for which the Applicant was in Australia. The Visa was granted on the basis that the Applicant would be attending a conference from 1-3 July 2022 at James Cook University. That conference had concluded 11 days before the Applicant arrived in Australia.
The Applicant claimed that he had other business purposes which was a “learning trip” as per the invitation from James Cook University. Even if such were true, the Applicant was in Melbourne and James Cook University is in Townsville. His explanation that he expected someone from the University to pick him up at his hotel and taken to the University and return him back to his hotel cannot be accepted.
The Applicant claimed ignorance as to where James Cook University was but I can take judicial notice that the distances between Melbourne and Townsville are about 2,500 kilometres which would take around 30 hours of non-stop driving or about three hours if one were able to obtain a direct flight.
When the fact that the “invitation letter” was a forgery, and that the Applicant had only $350 in US currency (notwithstanding that he may have had a letter from his government that they would cover all travel expenses), the conclusion that the Applicant had ceased to have an intention to only stay in Australia temporarily is well and truly open.
Any error (if one could be found) could not realistically have made a difference to the conclusion and therefore could not be considered “material” and therefore could not be classed as “jurisdictional”.
Conclusion
There has been no jurisdictional error illustrated in any of the grounds. For these reasons the application is dismissed with costs in the scale amount of $7,853. I will also amend the name of the Minister.
I certify that the preceding two hundred and five (205) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 2 September 2022
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