Dalla v Minister for Home Affairs

[2020] FCCA 454

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALLA v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 454

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – visa cancellation pursuant to s.109 of the Migration Act 1958 (Cth) – incorrect information included on an outgoing passenger card – whether notice under s.107 was valid – whether the outgoing passenger card was a “passenger card” for the purposes of s.102 – whether reg.3.01(4) (as it stood at the relevant time) applied to passenger cards – whether reg.3.01(4) was an exhaustive statement – held reg.3.01(4) applied to passenger cards and was not exhaustive statement of information able to be sought – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.97, 102, 107, 108, 109, 504, 506

Migration Regulations 1994 (Cth), regs.2.41, 3.01, 3.02

Cases cited:

Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8;  (2010) 84 ALJR 251
Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405
Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Applicant: IMAD DALLA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 584 of 2018

Judgment of: Judge Baird

Hearing dates: 3 July 2018, 9 July 2018, and 8 August 2018

Date of Last Submission: 5 September 2018

Delivered at: Sydney

Delivered on: 3 March 2020

REPRESENTATION

Solicitors for the Applicant: Ms M Youssef, Harper James Law Group

Counsel for the First Respondent: Ms Mitchelmore and Ms S Chordia

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. AMENDS the name of the First Respondent to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. DISMISSES the Application filed 5 March 2018.

3. ORDERS the Applicant pay the First Respondent’s costs of and incidental to the Application, including in relation to the adjourned hearing on 9 July 2018, and in addition to costs previously ordered, fixed in the sum of $12,100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 584 of 2018

IMAD DALLA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth), seeking judicial review of a decision of the Administrative Appeals Tribunal dated 30 January 2018, affirming the decision of a Delegate of the First Respondent, the Minister for Immigration and Border Protection (now known as the Minister for Immigration, Border Protection, Migrant Services and Multicultural Affairs), dated 30 September 2015, cancelling the Applicant, Mr Imad Dalla’s, subclass 457 (temporary work (skilled)) Visa. 

2. The Delegate cancelled the Visa under s.109(1) of the Act on the basis that Mr Dalla breached s.102 of the Act, by providing incorrect information on an “Outgoing Passenger Card” when seeking to depart Australia to visit his family.

3. Mr Dalla was born in Lebanon in 1990, and is a Lebanese national.  Mr Dalla arrived in Australia in January 2011 as the holder of a student visa.  He undertook studies in English, and subsequently obtained a Diploma of Mechanical Engineering at the University of Western Sydney. During 2014 he completed further studies, namely, a Certificate of Construction IV, and a Diploma of Construction and Building at an educational college in Sydney. 

4. Mr Dalla was granted the Visa on 30 April 2015 for a period of 4 years on the basis of an approved nomination by Sydney Projects Group Pty Limited, a NSW building and development company.  Prior to 20 July 2015, he was lawfully engaged in building industry work and was in ongoing employment. 

5. In July 2015, Mr Dalla sought to fly to Lebanon to visit his family for 5 weeks.  On 20 July 2015, at Sydney International Airport, prior to flying out of Australia, he completed a form described on its face as: “Outgoing Passenger Card Australia”.  The proper characterisation of this document is central to this proceeding.

6. The front of the card required Mr Dalla to complete personal details such as his name, date of birth, passport number, nationality, flight number, country where he will get off the flight, occupation, and whether he was a visitor or temporary entrant departing, and how long he intended to stay overseas.  On the obverse of the card, inter alia, the question, was asked:

   Are you taking out of Australia AUD$10,000 or more in Australian or foreign currency equivalent?  If answered “yes” you must complete a Cross Border Movement – Physical Cash (AUD$10,000 or more) Report to present with this card.

7. In response, Mr Dalla crossed the “no” box, and completed a declaration that: “the information I have given is true, correct and complete”.

8. Whilst at the Airport, Mr Dalla was subjected to a baggage search by Australian Border Force officers.  Officers found that Mr Dalla had in his possession A$24,345.85 and US$506.  He was arrested that day, and released on bail the following day.  Also on 20 July 2015, the Delegate of the Minister decided that Mr Dalla had provided an incorrect answer on his Outgoing Passenger Card, and thus had not complied with s.102(b) of the Act. Mr Dalla was invited to provide evidence to the Delegate as to whether or not he believed he had complied with the section and whether, having regard to circumstances as prescribed in reg.2.41 of the Migration Regulations 1994 (Cth), his Visa should be cancelled.

9. On 28 August 2015, the Delegate sent Mr Dalla a notice of intention to consider cancellation of his Visa under s.109 of the Act, particularising Mr Dalla’s failure to declare in his Outgoing Passenger Card the fact that he was taking more than A$10,000 out of the country. On 14 September 2015, Mr Dalla, through his then solicitor, provided the Department (and inferentially, the Delegate) with a letter outlining submissions explaining why he made erroneous declarations on his Outgoing Passenger Card. On 30 September 2015, the Delegate found that Mr Dalla had not complied with s.102(b) of the Act, and decided to cancel the Visa.

10. Since the Delegate’s decision, Mr Dalla has pleaded guilty to the charge of failing to report money when leaving Australia, and state offences involving, among other things, gaining access to a third party’s bank account, and conducting fraudulent transactions in relation to that bank account, which occurred in the days immediately prior to Christmas 2014.  He was sentenced to 2 years and 9 months imprisonment with a non-parole period of 2 years.  In relation to the Commonwealth offence of moving currency without completing a report, Mr Dalla was convicted and fined $2,500.00.

11. On sentencing Blackmore J SC stated that Mr Dalla had to discontinue his study due to his lack of financial resources.  Blackmore J SC found that Mr Dalla was unlikely to reoffend, and was likely to be rehabilitated.

12. It appears that since 2 October 2015 Mr Dalla has been in immigration detention or in prison.  He was sentenced on 7 March 2017.  His non‑parole period ended on 1 October 2017, and whilst he was directed to be released to parole on that day, it appears that he was then transferred into immigration detention, and has remained in detention since then.

History of Tribunal decisions

1. On 30 January 2018 the Tribunal affirmed the decision of the Delegate to cancel the Visa.  This is the decision under review.  It is the third decision of the Tribunal, in each case differently constituted. 

2. On 28 October 2015, a first Tribunal affirmed the Delegate’s decision but improperly took into account pending criminal charges in exercising its discretion to cancel the Visa.  On application for judicial review to this Court, the Court rejected Mr Dalla’s arguments, and upheld the Tribunal’s decision.  On appeal, the Federal Court of Australia allowed the appeal, quashing the Tribunal’s decision, and remitted the matter to the Tribunal (differently constituted) for hearing and determination according to law. 

3. The second Tribunal had before it a non-disclosure certificate issued under s.375A of the Act.  In accordance with s.359A of the Act, on 13 December 2016, that Tribunal wrote to Mr Dalla giving particulars of the adverse information the subject of the non-disclosure certificate.  On 21 December 2016, the second Tribunal affirmed the Delegate’s decision to cancel the Visa, stating it gave no weight to the information covered by the s.375A certificate.  Mr Dalla appealed to this Court.  On 16 March 2017, the matter was remitted to the Tribunal by consent on the basis that the Tribunal had breached s.359A of the Act by not providing clear particulars of information covered by the s.375A certificate. 

4. On 29 November 2017, Mr Dalla appeared before the Tribunal from whose decision the present application for judicial review is brought.  He appeared unrepresented, and gave his evidence in English.  He requested, and was provided, the opportunity to provide further evidence and make further written submissions, which he did so on 13 December 2017.  As I have stated at [1] and [13] above, the Tribunal issued its Decision on 30 January 2018.  I discuss the Decision below at [45] and following.

5. On 6 March 2018, Mr Dalla’s application for review was accepted for filing in this Court. 

This proceeding - ground of review

1. The application filed 6 March 2018 sets out one ground of review as follows:

   [1] The Tribunal misunderstood and misapplied the law.

   PARTICULARS

   a.The Tribunal misapplied the provisions of the Migration Act 1958 ss97, 102, 107, 109, 504 and 506.

   b.By misunderstanding and misapplying the law set out above the Tribunal failed to apply the proper consideration for what constitutes a “passenger card” and what information was prescribed for inclusion on such cards.

Proceeding in this Court

1. The matter was set down for a final hearing before me on Tuesday, 3 July 2018.  On that day the Applicant appeared before me, unrepresented, and accompanied by two security officers, further to being in detention, then at Villawood Immigration Detention Centre. 

2. Mr Dalla sought an adjournment given the circumstances of his recent termination of legal representation. He submitted that he had engaged the services of a solicitor with the express requirement that the solicitor brief counsel.  However that counsel returned the brief to his solicitor the previous Wednesday (just over three business days earlier), and the solicitor had, in turn, only informed Mr Dalla of that event on the Thursday.  As the solicitor had been engaged on the basis that he would engage counsel, and as alternative counsel had not been obtained given the short notice (and I note that it was school holidays), Mr Dalla terminated the engagement of his solicitor.  Mr Dalla’s former solicitor appeared as a courtesy of the Court and sought leave to withdraw.  I granted that leave, and excused him from further attendance.

3. I stood the matter down whilst Ms Mitchelmore and Ms Chordia for the Minister obtained instructions, and to permit Mr Dalla time to make telephone calls to ascertain the availability of the person identified as the potential solicitor, and to speak to his uncle, through whom he was seeking to engage legal representation.  In the event, Mr Dalla was not able to speak to either person. 

4. The Minister did not oppose a short adjournment.  Accordingly, I made orders standing the matter over to hearing on 9 July 2018, and impressing upon Mr Dalla the necessity to obtain legal representation as a matter of urgency.  The Court provided Mr Dalla with a copy of the Court Book of documents prepared by the Minister’s legal representatives, and I ensured that Mr Dalla had in his possession copies of his application, supporting affidavit, and the Minister’s submissions.  Mr Dalla’s former solicitor had filed written submissions.  I confirmed that Mr Dalla had a copy of those written submissions. 

5. When the matter was in Court for hearing on Monday, 9 July 2018, Ms Youssef, solicitor, appeared for Mr Dalla.  Mr Dalla was not present, although arrangements had been made for him to be transported from Villawood to appear at the hearing.  Ms Youssef sought an adjournment, informing the Court that she had been formally instructed only just before 1pm on Friday, 6 July 2018, and that she did not have any documents.  She sought a short period of time in order to review the papers and prepare submissions.  Ms Mitchelmore, with Ms Chordia and their instructing solicitors, again appeared for the Minister.  In the circumstances, Ms Mitchelmore informed the Court that the Minister did not oppose a further short adjournment.  I adjourned the matter for hearing on 8 August 2018, and reserved argument on costs to 8 August 2018.

6. On 8 August 2018, Ms Youseff appeared for Mr Dalla, and Mr Dalla was present. Ms Mitchelmore of counsel appeared for the Minister, and the hearing proceeded.

7. Given the ground of review, it is appropriate to first set out the legislative and regulatory framework, and then that part of the Tribunal’s decision, before turning to the submissions made to this Court and my consideration.

The legislative and regulatory framework

1. The Tribunal set out some of the relevant legislative framework at [18]–[24] of the Decision.  I incorporate the Tribunal’s discussion there in setting out below the legislative and regulatory framework relevant to the ground of review.  The provisions are set out in the form they were as at the date of cancellation of the Visa, 30 September 2015 (noting that there was no relevant change between 20 July 2015, and 30 September 2015).

2. Sections 102 – 109 are located in Subdivision C of Division 3 of Part 2 of the Act. The Subdivision is titled “Visas based on incorrect information may be cancelled”.

3. It contains an interpretation section, s.97. Section 97 defines “passenger card” as:

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph section 504(1)(c).

4. Section 109(1) provides:

   109Cancellation of visa if information incorrect

   (1)    The Minister, after:

   (a)deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

5. Section 108 requires the Minister (in the present case, his delegate) to consider any response given by a visa holder in the way required by paragraph 107(1)(b), and decide whether there was non‑compliance by the visa holder in the way described in the notice.

6. The Tribunal explained of s.109, at [18] of the Decision:

   Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act.  Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

7. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non‑compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

8. Section 107 is titled “Notice of incorrect applications” and provides as follows:

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)giving particulars of the possible non‑compliance; and

   (b)stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)    shows that there was compliance; and

   (B)    in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)    give reasons for the non‑compliance; and

   (B)    shows cause why the visa should not be cancelled; and

   (c)stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)setting out the effect of sections 108, 109, 111 and 112; and

   (e)informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)    otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)    visas of a stated class; or

   (b)    visa holders in stated circumstances; or

   (c)     visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)    visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

9. In Mr Dalla’s case, the Delegate relied on non-compliance with s.102 when issuing the notice under s.107, and the Tribunal similarly stated that s.102 was relevant to Mr Dalla’s case.

10. Section 102 provides:

    Passenger cards to be correct

    A non-citizen must fill in his or her passenger card in such a way that:

    (a) all questions on it are answered; and

    (b) no incorrect answers are given.

1. Section 504, headed “Regulations”, provides generally for the making of regulations. Section 504(1) provides that the Governor-General may make regulation, not inconsistent with the Act, prescribing all matters which by the Act are necessary or convenient to be prescribed for carrying out or giving effect to the Act, and without limiting the generality of the foregoing, provided that the Governor-General may make regulations:

   504  Regulations …

   (c)making provision for or in relation to the furnishing or obtaining of information with respect to:

   (i)persons on board a vessel arriving at a port in Australia in the course of, or at the conclusion of, a voyage or flight that commenced at, or during which the vessel called at, a place outside Australia; and

   (ii)persons on board a vessel leaving a port in Australia and bound for, or calling at, a place outside Australia; and

   (iii)persons on board an aircraft arriving at or departing from an airport in Australia, being an aircraft operated by an international air carrier; …

1. Section 506 is titled “Regulations about passenger cards”, and provides:

   (1)Regulations under paragraph 504(1)(c) may provide for the giving of different information about different classes of people.

   (2)The regulations are to provide for the giving of information, in the form of answers to questions on a form, to be known as a passenger card, by non-citizens travelling to Australia, other than non-citizens exempted by the regulations.

   (3)The questions for a non‑citizen required by subsection (2) may include, but are not limited to, questions about any or all of the following:

   (a)the non‑citizen’s health;

   (b)any criminal convictions in Australia or a foreign country of the non‑citizen;

   (c)the purpose of the new arrival’s going to Australia;

   (d)any unpaid debts to the Commonwealth of the non‑citizen;

   (e)any removal or deportation from, or refusal of admission into, Australia or a foreign country of the non‑citizen.

2. It is apparent on its face that s.506(2) is specifically directed to what may be required of non‑citizens travelling to Australia. Section 504 provides for the making of regulations for broader purposes.

3. Section 109 provides that if the Minister decides there has been non‑compliance, the visa holder's visa may be cancelled after considering any response provided by the visa holder to the notice and having regard to “any prescribed circumstances”.

4. The prescribed circumstances are set out in reg.2.41 and are as follows:

   (a)the correct information;

   (b)the content of the genuine document (if any);

   (c)whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;

   (d)the circumstances in which the non-compliance occurred;

   (e)the present circumstances of the visa holder;

   (f)the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

   (g)any other instances of non-compliance by the visa holder known to the Minister;

   (h)the time that has elapsed since the non-compliance;

   (j)any breaches of the law since the non-compliance and the seriousness of those breaches; and

   (k)any contribution made by the holder to the community.

5. The Tribunal noted at [22] that while the factors specified in reg.2.41 must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case, citing Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248.

6. Regulation 3.01 sets out the general requirement for the provision of information.  In the form it stood at the relevant date, it provided as follows:

   3.01Provision of information (general requirement)

   (1)    In this regulation:

   officer includes a clearance officer.

   (2)    This regulation applies to:

   (a)    a person who is an overseas passenger:

   (i)     arriving on board a vessel at a port in Australia in the course of, or at the conclusion of, an overseas flight or an overseas voyage; or

   (ii)    leaving Australia on board a vessel bound for or calling at a place outside Australia; and

   (b)a person on board an aircraft arriving at, or departing from, an airport in Australia, being an aircraft operated by an international air carrier;

   other than:

   (c)a person included in a class of persons set out in an item in Part 1 of Schedule 9, being an item in which the word “no” appears in column 4; and

   (d)a person who, under regulation 3.06, is not required to complete a passenger card; and

   (e)a person who enters Australia:

   (i)     on a non‑military ship; and

   (ii)    as a member of the crew of that non‑military ship, or as the spouse, de facto partner or dependent child of a member of the crew of that non‑military ship.

   (3)    A person to whom this regulation applies must:

   (a)    complete a passenger card:

   (i)     in relation to the person and to any other person that person is in charge of on the relevant flight or voyage; and

   (ii)    in accordance with directions set out on the passenger card; and

   (b)if the person is arriving in Australia—provide the completed passenger card to an officer; and

   (c)     if the person is departing Australia—either:

   (i)     provide the completed passenger card to an officer or an authorised system; or

   (ii)    deposit the completed passenger card at a place of a kind specified in a legislative instrument made by the Minister for this subparagraph.

   (4)An officer may require a person to whom this regulation applies to provide to the officer information about that person in respect of any of the following matters:

   (a)name;

   (b)date of birth and country of birth;

   (c)citizenship;

   (d)sex, and marital or relationship status;

   (e)usual occupation;

   (f)passport number;

   (g)if the person is not:

   (i)     an Australian citizen; or

   (ii)    a person who is eligible for the grant of a Special Category visa or a Permanent Resident of Norfolk Island visa; or

   (iii)   a person who will on entry be taken to hold a special purpose visa;

   the number of the Australian visa held by the person;

   (h)flight number of aircraft or name of ship in relation to the relevant flight or voyage;

   (i)country in which the person boarded, or intends to disembark from, the aircraft or ship;

   (j)if the person is entering Australia—the intended address of the person in Australia.

7. I observe that reg.3.01(4) lists different information than that required by s.506(3). Counsel for the Minister submitted that the regulation was made under s.504.

8. The Tribunal drew comfort from reg.3.02, titled “Passenger cards for persons entering Australia”, sub-reg.(1) of which required that a passenger card for a person entering Australia must include questions whether the person currently suffered from tuberculosis, and whether they had any criminal convictions, questions not included in reg.3.01(4), but within the ambit of s.506(3). Sub-reg.3.02(3) provided that the passenger card may include instructions for completing it.

Tribunal Decision

1. Relevant to the ground of review before this Court, at [32] of the Decision, the Tribunal identified the questions for determination by it as:

   (1) Does an outgoing passenger card fall within the definition of a 'passenger card' for the purposes of establishing non-compliance with s 102(b) and does the question regarding the amount of funds a person is taking out of Australia lawfully form part of a 'passenger card' as provided for by the Act or Regulations?

   (2) If so, does non-compliance enliven the power under s 109 in the circumstances of the case or is the power restricted to the cancellation of visas granted on the basis of the incorrect information?

   (3) If the answer to (1) is yes and the power under s 109 is not restricted as contended, was there non-compliance in the way described in the notice?

   (4) If so, how should the discretion to cancel be exercised, having regard to any response to the notice, the prescribed matters and any other relevant considerations?

2. Before the Tribunal, Mr Dalla conceded that he provided an incorrect answer on his “Outgoing Passenger Card” about the funds he was taking out of Australia, but contended that this was unwitting. 

3. Before the Tribunal (and also before me), Mr Dalla contended that the question on the Outgoing Passenger Card about the funds being taken out of Australia was not prescribed under the Regulations, and did not form part of the “passenger card” for the purposes of s.102(b), and as such, there was no non-compliance within the meaning of ss.107 and 109 of the Act. He further submitted that the power to cancel a visa under s.109 was only enlivened if the visa was granted on the basis of incorrect information, and that, on either argument, the ground for cancellation did not arise, and there was no power to cancel Mr Dalla’s Visa.

4. The Tribunal observed that s.107 is only engaged if the Minister (relevantly, the Delegate), considers that the visa holder has not complied with one of the provisions mentioned in s.107. The Delegate identified s.102. An issue identified by the Tribunal was the question whether an “outgoing passenger card” is a “passenger card” for the purposes of s.102(b). The Tribunal stated at [28] that non-compliance with the question on the “outgoing passenger card” may be established even where the visa holder is unaware that the answer is incorrect (refer to s.100 of the Act, which provides that “an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer the be given or provided, did not know that it was incorrect”). 

5. At [28] the Tribunal found it was open to the Delegate to issue the notice of intention to consider cancellation under s.107 on the basis that there had been non-compliance with s.102(b). It was satisfied that the Delegate had reached the necessary state of mind to engage s.107. The Tribunal was further satisfied that, subject to any argument about whether the ground for the cancellation was established in the circumstances, the notice issued under s.107 was valid (at [29]).

6. The Tribunal considered whether the provision of incorrect information in Mr Dalla’s “outgoing passenger card” establishes non‑compliance for the purposes of s.102(b), and if so, whether there was non‑compliance in the way described in the s.107 notice. If the Tribunal was satisfied about those matters, it considered that the third issue that would arise is whether the visa should be cancelled (at [30]–[31]).

7. At [62] to [64] of the Decision the Tribunal stated:

   [62] Accordingly as at 20 July 2015, an 'outgoing passenger card' was a document provided for by Regulations under s.504(1)(c). Section 115 states that Subdivision C of Division 3 of part 2 of the Act (being ss.97-115) applies to passenger cards filled in on or after 1 September 1994 ). As s.97 provides that such a document is a passenger card for the purposes of s.115, the Tribunal considers that the effect of ss.97 and 115, when read together, is that outgoing passenger cards are included in the definition of 'passenger card' for the purposes of s.102.

   [63] In addressing the issue raised in the representative's submission, the Tribunal notes that there is nothing in the terms of rr.3.01 and 3.02 restricting the matters that may be asked on a passenger card to those listed in reg.3.01(4). The Regulations do not provide that reg.3.01(4) applies to passenger cards and on its face, reg.3.01(4) appears to be a separate provision about other information that an officer can require a person to give. Furthermore, there is nothing in the Regulations to suggest that the matters in reg.3.01(4) provide an exhaustive list of the types of questions that can be asked on passenger cards, and in fact it does not list the two questions which reg.3.02(1) says an incoming passenger card must ask, namely about tuberculosis and convictions.

   [64] In light of the above, the Tribunal considers that passenger cards can request information about matters not listed in reg.3.01(4) and that the terms of the provisions cannot be read as restricting the matters that may be asked on a passenger card to those listed in reg.3.01(4). In this case, the information sought on the passenger card that was completed by the applicant as he was attempting to depart Australia on 20 July 2015 included a question about the amount of money he was taking out of Australia. The Tribunal is satisfied that the passenger card is permitted to request this information under the regulations and that the question forms part of the passenger card as provided for by the Act or Regulations

8. The Tribunal concluded that:

   (a)the effect of ss.97 and 115 of the Act, read together, was that “outgoing passenger cards” were included in the definition of “passenger card” for the purposes of s.102 of the Act (at [62]);

   (b)the passenger card was permitted to request the information under the Regulations, and the question formed part of the passenger card as provided for by the Act or the Regulations (at [64]);

   (c)in considering the text and purpose of the legislation, specifically ss.102, 107 and 109, in the context of Subdivision C of Division 3 of Part 2 of the Act, there was nothing in those provisions that restricted their application to incorrect information on which a visa is granted (at [67]–[69]).

9. The Tribunal found that there was non-compliance with s.102(b) by Mr Dalla, in the way described in the s.107 notice (at [73]).

10. The question then before the Tribunal was whether the Visa should be cancelled pursuant to s.109(1), in which context, cancellation is discretionary. At [76]-[117], the Tribunal summarised the submissions and the evidence provided relevant to the prescribed circumstances (being those set out in reg.2.41, see above at [39]).

11. The Tribunal concluded, at [122], that there was non-compliance by Mr Dalla in the way described in the notice given under s.107 of the Act, and that, having regard to all the relevant circumstances it discussed, the Visa should be cancelled.

12. It gave considerable weight to Mr Dalla’s then present circumstances, the temporary nature of the Visa which was due to expire on 30 April 2019, and the uncertainty surrounding his employment prospects, particularly given that that was the purpose of his Visa (at [122]-[123]).  It affirmed the decision of the Delegate.

This proceeding – submissions and consideration

Applicant’s Submissions

1. Ms Youseff for Mr Dalla submitted that the main object of Subdivision C of the Act, within which ss.102 – 109 were located, was concerning visa holders who provided incorrect information to obtain their visas, and not where, as in the present case, the incorrect information in the outgoing card was irrelevant to information on which the visa was obtained.  That is, temporally, and purposively, the information on the Outgoing Passenger Card did not go to Mr Dalla’s obtaining of the Visa.

2. She submitted that the use of the phrase “to Australia” in s.506(2) means that a “passenger card” is only a card presented by a person entering Australia, not a person, such as Mr Dalla, who presented a card while in the course of  leaving Australia.  Thus, she submitted the obverse of the form “Outgoing Passenger Card” is not, by definition, a “passenger card” within s.97 of the Act. Accordingly there was not a contravention of s.102, and thus, no enlivening of s.109 of the Act.

3. Whilst s.102 refers to “passenger cards”, viewed in context, the term refers to such a card for arriving passengers and, thus, creates the nexus between the obtaining of the visa and the arrival in Australia.

4. The cancellation provisions in Division 3 Subdivision C are limited to false information in respect of an application for a visa.  This is apparent by the subheading to subdivision C: “Visas based on incorrect information may be cancelled” (emphasis added).

5. The incorrect answer as to the amount of money Mr Dalla was taking out of the country was not an answer given in respect of a visa application (i.e., a grant of visa being based on correct information). The cancellation provision in s.109 is not enlivened by the giving of an incorrect answer.

6. Ms Youssef further submitted that the question on the Outgoing Passenger Card which Mr Dalla incorrectly answered did not fall within the permitted matters listed in reg.3.01(4).  She submitted that the matters listed in reg.3.01(4) are intended to be exhaustive.  They are exhaustive, she submitted, because there is no suggestion on their face that the matters are inclusive or non-exhaustive. 

7. Further, it is clear that the information sought in relation to the currency question was information sought under s.15 of the Financial Transaction Reports Act 1988 (Cth), and also s.53(3) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), noting that subsection (3) is a civil penalty provision.

8. Ms Youseff submitted that, as the Tribunal’s decision was based on its finding that the information the passenger card is permitted to request under the Regulations was not limited under reg.3.01(4), and its finding that the question about whether money was being taken out of Australia formed part of the passenger card as provided for by the Act or Regulations (see at [64]), it based its decision on an incorrect understanding of the Act, and failed to apply the law to the facts as found. 

9. If Ms Youseff’s submission is accepted, even if the information was required pursuant to the Financial Transactions Reports Act 1988 (Cth) or the Anti-Money Laundering and Counter‑Terrorism Financing Act 2006 (Cth) legislation, because the Tribunal relied on its finding that the information was on a passenger card for the purposes of s.102, and thus the notice issued under s.107, that the information might have been permitted or required to be obtained under other legislation does not make valid the s.107 notice, or exonerate the Tribunal from error.

The Minister’s Submissions

1. Ms Mitchelmore for the Minister identified the application for review as raising the following issues:

   (a)did the “Outgoing Passenger Card” that Mr Dalla filled in fall within the definition of “passenger card” for the purposes of establishing non‑compliance with s.102(b) of the Act? The Minister says it does.

   (b)did the question regarding the amount of funds being taken out of Australia form part of a “passenger card” as provided for by the Act or Regulations?  Again, the Minister submits that it does, and that the answer is “yes”.

   (c)did Mr Dalla’s non‑compliance with s.102(b) of the Act, in relation to the information he provided on an “Outgoing Passenger Card”, enliven the cancellation power under s.109 of the Act, or is that power restricted to the cancellation of visas granted on the basis of the incorrect information? Ms Mitchelmore for the Minister submits that non‑compliance with s.102(b) of the Act in relation Mr Dalla’s Outgoing Passenger Card enlivens the power under s.109 to cancel a visa, even if the information was not relied upon to grant the Visa.

2. Ms Mitchelmore conceded that the Explanatory Memorandum suggests that s.506(2) was intended to limit the meaning of “passenger cards” to those to be completed by persons arriving in Australia (and indeed I note the heading to the section is headed “Regulations about passenger cards”), but Ms Mitchelmore says that extrinsic materials cannot be relied on to displace the clear meaning of the text:  see Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].

3. Thus, read in conjunction with ss.115 and 504(1)(c), s.97 supports the construction of the term “passenger card” as encompassing both incoming and outgoing passenger cards, as the Tribunal stated at [62].

4. The Minister submitted that Mr Dalla does not grapple with why the Tribunal’s construction is erroneous, given the Regulations as in force when Mr Dalla filled in the document. The Tribunal’s construction, the Minister submitted, gives effect to the terms of s.97 and to the intended operation of s.115.

Consideration - the meaning of passenger card

1. On its face the definition in s.97 of “passenger card” has two aspects: the first, the meaning given by sub-s.506(2), being the meaning relied upon by Mr Dalla, and secondly, the meaning given by the direction to the purposes of s.115, and the inclusion of any document provided for by regulations under s.504(1)(c) of the Act.

2. Section 115 is in the nature of an application provision which stipulates how the provisions of Subdivision C are to apply, depending on which of the paragraphs the particular case falls into. It thus applies to passenger cards filled in on or after 1 September 1994. Of itself, however, s.115 does not expand the meaning of a passenger card, that task is accorded regulations made under s.504(1)(c) of the Act.

1. In its task of statutory construction, the Court “must strive to give meaning to every word”:  see Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414, referred to with approval in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [17].

2. I consider that Mr Dalla’s construction does not give all the words of s.97 work to do within the Act. Contrary to the above principle, on Mr Dalla’s construction a “passenger card” as defined by s.97 is to be understood as having the meaning ascribed by s.506(2), that is, limited to persons arriving in Australia. What work then does the remainder of the wording in s.97 do?

3. It is significant in this respect that s.97 refers to regulations made under s.504(1)(c) of the Act. This provision provides for regulations to be made with respect to the furnishing or obtaining of information in relation to, inter alia, persons on board a vessel arriving at a port in Australia … persons on board a vessel leaving a port in Australia and bound for, or calling at, a place outside Australia, and persons on board an aircraft arriving at or departing from an airport in Australia, that is both persons arriving and persons departing the country. Section 504(1)(c) does not limit what a regulation made under the section may require, or as to the form in which the information may be furnished or obtained. Thus, a regulation so made may specify that the information be obtained or furnished in a document, as s.97 contemplated.

4. I consider that the text of s.97 directs that passenger card is both that card provided for under s.506(2), and also passenger cards as provided for by regulations made under s.504(1)(c).

5. I consider that s.504(1) permits, and does not exclude, the making of regulations under that section that apply to documents being passenger cards. It follows that reg.3.01(2) is a regulation made under s.504, and specifically under s.504(1)(c)(iii).

6. I do not consider that the wording of s.504(1)(c)(iii) limits the making of regulations to only those persons at the moment in time that they are physically on board the aircraft, but rather, that regulations may be made (relevantly) with respect to such persons preparatory to boarding the aircraft to depart the country.

7. Regulation 3.01(3) then required a person to whom the regulation applied, which, further to reg.3.01(2) included persons departing from an airport in Australia, to complete a passenger card.  Thus, within the meaning of “for the purposes” of s.115 in s.97 of the Act, the outgoing passenger card completed by Mr Dalla was a “document provided for by regulations under s.504(1)(c) of the Act”.

8. It follows that I find that the Tribunal did not fall into jurisdictional error when it found at [62] that, as at 20 July 2015, an outgoing passenger card was a document provided for by regulations under s.504(1)(c).

9. I note that s.506(1) provides that regulations under s.504(1)(c) may provide for the giving of different information about different classes of people. Section 506(2) then provides that the regulations are to provide for the giving of information, in the form of answers to questions on a form, to be known as a “passenger card”, by non‑citizens travelling to Australia other than non‑citizens exempted by the Regulations.

10. It is instructive to refer to the whole of s.506 in order to understand the context in which the reference to “passenger card” is provided. When read as a whole, the section makes clear that as part of the information which the regulations under s.504(1)(c) may provide for, a particular form of giving of information in the form of answers to questions on a form is to be provided for in relation to travel to Australia and that particular form is to be known as a “passenger card”.

11. Section 506(3) then non‑exhaustively provides for the questions for a non‑citizen required by subsection (2) to be answered, including as to health, criminal convictions, purpose of arrival, unpaid debts and any removal or deportation. I do not read s.506 as precluding persons departing the country from being required to complete passenger cards, or that a passenger card means only such a card completed by a person on arrival.

Information Requested on a Passenger Card

1. Ms Mitchelmore submitted further that reg.3.01(4) is directed at facilitating the gathering of information by a clearance officer for the purposes of performing their duties under Division 5 of the Act.  There is no textual, contextual or purposive indication in the Regulations or the Act, she submitted, to suggest that reg.3.01(4) is necessarily directed at information that may be requested by a clearance officer on a passenger card, or that such requests are limited to the mechanism of a passenger card.  Ms Mitchelmore stated that the absence of any reference to passenger cards in reg.3.01(4), despite the provision of passenger cards being the focus of reg.3.01(3), demonstrates that reg.3.01(4) should not be taken to applying to passenger cards.

2. Further, there is nothing, she submitted, in the terms of the regulation or in the surrounding regulations, to indicate that it provides an exhaustive list of the types of questions that can be asked.  It follows, so the Minister contended, that there is nothing in the Act or regulations that would make unlawful a request for information on a passenger card relating to the amount of money in the possession of an overseas passenger.

Consideration

1. Regulation 3.01(3) requires persons to whom the regulation applies (being those persons identified pursuant to reg.3.01(2)) to complete a passenger card.  I consider that, contextually, reg.3.01(4) permits an officer to require such a person to provide information about any of the subject matters listed, but is agnostic about the form or means by which the information may be provided: it may be, but need not be, in the form of a passenger card. 

2. I further consider that the regulation provides guidance about the subject matter that may be sought, but is not an exhaustive statement of the subject matter.  In other words, I consider that reg.3.01(4) provides an inclusive, and not exhaustive, statement about what information may be sought in a passenger card.

3. It follows that whilst I reject the Minister’s submission that reg.3.01(4) should not be taken to apply to passenger cards, I accept Ms Mitchelmore’s submission that there is nothing in the Act or Regulations that would make unlawful a request for information on a passenger card relating to the amount of money in the possession of a person departing Australia.

The power to cancel a visa under s.109 of the Act

1. I turn now to the power to cancel a visa under s.109 of the Act, and the circumstances in which the Delegate cancelled Mr Dalla’s Visa.

2. As I have summarised above, Mr Dalla relied on the wording of the headings of the respective provisions.  On the other hand, the Minister submitted that the headings on which Mr Dalla relies provide no real assistance in determining whether visas may be cancelled under Subdivision C, but only assist with respect to incorrect information on a visa application, or whether visas may be cancelled with respect to other incorrect information.

3. The Minister accepted that headings of the parts, divisions and subdivisions into which an Act is divided are deemed to be part of the Act:  see Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 84 ALJR 251 at [15]. In Berenguel, the heading did not connect grammatically to the terms of the relevant clause (see at [26]), and the Court there declined to accept the construction of the clause which was most consistent with the heading, preferring a construction consistent with the text and purpose of the clause.

4. Reasoning by analogy with Berenguel, Ms Mitchelmore contended that s.107(1) of the Act refers to a notice being issued to a holder of a visa whom the Minister suspects has not complied with one or more of ss.101 – 105, or 107(2) of the Act. Section 102 expressly refers to the obligation to complete a passenger card correctly: it does not refer to any obligations relating to visa applications or information provided for that purpose. Additionally, s.105 of the Act distinguishes between these two types of documents – an application form or a person’s passenger card. I note that “application form” is defined in s.97 as a form on which a non‑citizen applies for a visa.

Consideration

1. Section 107, read with ss.102 and 105, contemplates that the obligation on the Minister (by his delegate) to give notice of non‑compliance may be triggered by a failure to give correct information on a visa application or on a passenger card, or a failure to correct incorrect information on either document. In respect of the latter, namely a passenger card, the heading of s.107 which refers only to “incorrect applications” does not “connect grammatically” to its terms – the terms are wider.  Thus, the heading does not encompass all the circumstances provided for by the text of the section (being both a visa application, and a passenger card).  Finding, as I have, that a passenger card is not limited to a card to be completed for the purposes of arrival into Australia, but encompasses an outgoing passenger card, I consider, analogously with Berenguel, that a construction which accords with the terms of s.107 is to be preferred with an alternative construction which is consistent with its heading but not its terms.

2. It follows that I find that the Tribunal was correct to conclude that once the obligation to give notice under s.107 was fulfilled in respect of the failure to give correct information on a passenger card under s.102(b) of the Act, and the conditions in s.109(1) have been satisfied, the power to cancel a visa in s.109 was enlivened.

Other matters – supplementary submissions

1. In supplementary submissions provided after the hearing, Mr Dalla raised a number of factual contentions as to the circumstances in which he had more than $10,000 in foreign currency when seeking to leave Australia, and submitted that he made a mistake and failed to take due care when answering the question on the passenger card. 

2. As I have observed at [48], s.100 provides that an answer is incorrect even though the person who provided the answer did not know it was incorrect. Whilst in exercising his discretion whether to cancel a visa under s.109, the Minister may take into account that non‑compliance with s.102 was a product of a mistake, the mistake has no bearing on the issue of non‑compliance with s.102.

3. Mr Dalla also contended that because he was not physically “on board” an aircraft when he filled out the card, s.504(1)(c) did not apply to him. I do not accept this contention. In accordance with s.97 of the Act, the issue with which the Court is concerned is whether the outgoing passenger card that Mr Dalla filled in was “a document provided for by the regulations under paragraph 504(1)(c)”, as s.97 provided. Regulations 3.01(2)(a) and reg.3.01(2)(b) mirror s.504(1)(c)(ii) and (iii) of the Act. Paragraphs 504(1)(c)(ii) and (iii) delineate a class of persons “with respect to” which the regulations may provide that information is to be furnished or obtained. They do not purport to impose a physical or temporal limitation such that a person must be physically on board the vessel or aircraft before information may be obtained. That members of the class of persons identified by reg.3.01 may fill out their passenger cards before boarding the vessel (including an aircraft), does not take the regulation outside the scope of what is authorised pursuant to s.504(1)(c) of the Act.

4. Finally, Mr Dalla raised the fact that paper-based passenger cards were removed from circulation with effect from 1 July 2017.  That the regulations were amended after the Visa was cancelled is not relevant to the question of construction that is before the Court, and was before the Tribunal.

5. The amendments did not have retrospective effect. The fact of subsequent amendment does not relevantly bear upon the power of the Minister to cancel the Visa pursuant to s.109 on the basis of the regulations as they applied at the date of cancellation.

Conclusion on the application

1. For the reasons that I have set out above, it follows that the ground of review is not made out, the Tribunal did not fall into jurisdictional error.  The Application must be dismissed, and costs will follow the event.

2. I will so order.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Baird

Associate: 

Date:  3 March 2020