Dalla v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALLA v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1341

Catchwords:

MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – subclass 457 temporary work (skilled) visa – whether the Tribunal acted in excess of its jurisdiction – whether the Tribunal misconstrued the relevant legislation – whether the Tribunal took irrelevant considerations into account – whether the applicant was denied natural justice – no jurisdictional error identified – application dismissed.

Legislation:

Crimes Act 1900 (NSW) s.192J

Migration Act 1958 (Cth) ss.102(b), 107, 109, 476

Migration Regulations 1994 (Cth) regs.2.41, 2.43

Applicant:

IMAD DALLA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3188 of 2015

Judgment of:

Judge Street

Hearing date:

2 June 2016

Date of Last Submission:

2 June 2016

Delivered at:

Sydney

Delivered on:

2 June 2016

REPRESENTATION

Counsel for the Applicant:

Mr A Moutasallem

Counsel for the First Respondent:

Ms A Mitchelmore

Solicitors for the First Respondent:

Mills Oakley Lawyers

ORDERS

The further amended application is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3188 of 2015

IMAD DALLA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of the decision of the Tribunal made on 28 October 2015, affirming a decision of the delegate not to grant the applicant a subclass 457 temporary work (skilled) visa.
The applicant was sent a s.109 notice on 28 August 2015 in respect of a non-compliance under s.102(b) of the Migration Act1958. That provision refers to a non-citizen being obliged to fill out the passenger card in a way that no incorrect answer is given. The notice refers to the fact that on the 20 July 2015, the applicant presented at Sydney International Airport, in order to catch a flight out of Australia, and as part of the standard departure process, an outgoing passenger card. One of the questions on that card 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.”
The applicant, in response to that question, marked the box “No”. The notice records that while at Sydney International Airport, the applicant was the subject of a routine bag search by the Australian Border Force officers, and that these officers found the applicant to be in possession of Australian $24,348.58 and USD currency $506.
The notice identified as a result of these facts that the applicant had provided an incorrect answer on the outgoing passenger card, and that the applicant had thereby not complied with s.102(b) of the Act. There is a letter that was provided in response to this notice, dated 14 September 2015, by a solicitor on behalf of the applicant, which asserts that the applicant made an erroneous declaration on his outgoing card and relevantly said:
We are instructed that the money carried by Mr Dalla on 20 July 2015 was provided to him by his uncle, Mr Mohamad Ramadan in the amount of $21,500 in Australian currency. The monies were intended for the parents of Mr Ramadan in Lebanon, where Mr Dalla was travelling too for a short holiday. It was the case that Mr Dalla was asked to pass on the money on behalf of Mr Ramadan as a gift to his parents. Mr Dalla, in furnishing the outgoing passenger card was not aware that the disclosure required pertained to all monies carried upon a person, as opposed to monies for which the person has actual ownership. Further to that, Mr Dalla was not aware of the total amount of money given to him in the envelopes as it was apparent that it was money sealed in envelopes with names written on them. We are of the view that it was a mistake on the part of Mr Dalla, and that he failed to take due care., It is not a situation of wilful deception. Indeed, we attach a letter from Mr Mohamad Ramadan annexed to this letter claiming ownership of the money. We hope that you are also of the same view.
By letter dated 30 September 2015, the applicant was sent a notification of cancellation of his subclass 457 temporary work visa granted on 30 April 2015. That notification noted that the delegate decided that the applicant did not comply with s.102(b) of the Migration Act 1958, and in the exercise of discretion, decided to cancel the applicant’s visa.
It is relevant in this regard that the delegate records, in relation to its decision, that the applicant agreed that there was non-compliance as alleged in the notice. The applicant sought a review of that decision by the Administrative Appeals Tribunal and put on a written statement that contained the following explanation:
7. On 20 July 2015 I was planning on going to Lebanon to visit my family for about 5 weeks.
8. It is very common in Lebanese community. that whenever someone leaves to go to Lebanon that he or she let him family know just In case somebody wants to send something to Lebanon for the family back there. This Is something that my family did all the time.
9. Sometime before I was planning on going to Lebanon I had a conversation with my uncle Mohammad Ramadan to the following effect:
I said: I am going to Lebanon, is there anything you want to send there, let me know.
He said: Yes, there is same medicine and money I want to send with you.
10. On 20 July 2015 before I left to go the airport, my uncle Mohammad gave me 2 sealed envelopes. At the time we had a conversation to the following effect:
“He said: Please give these to your grandfather.
I said: Yes I will."
11. I knew there was money in the envelopes but I did not know how much because I did not open the sealed envelopes. I didn't count the money, I wasn't told how much there was and I didn't ask.
12. Both envelopes had names on them, one of those name was the name of Mohamad Ramadan.
13. When I got to the airport I remember filling in an Outgoing Passenger Card.
14. I can't remember the exact wording of the question, but I recall there was a question on the card about money.
15. I understood from the question that I only had to declare whether I had more than $10,000.00 that belonged to me. As I only had about $3,500.00 that belonged to me, I didn't think that I had to tick the “yes” box.
16. I also had no idea how much money was in the envelopes.
17. So when the Border Protection Officers searched and found the money, I didn't know that I had more than $10,000.00 on me.
18. I didn't think that I had done anything wrong and I said to the officers when they found my uncle's money that they should call my uncle whose name and· number is on the envelope and ask them about it.
19. The Border Officers didn't call my uncle. I was taken away and told that what I done was illegal and that what I· did could lead to a visa cancellation.
Written submissions were also provided on behalf of the applicant to the Tribunal. The applicant was invited to attend a hearing on 27 October 2015 by a letter dated 21 October 2015. The applicant attended before the Tribunal, together with his legal representative, to give evidence and present arguments.
The statement by the applicant did not address the circumstances in relation to the charges relating to the applicant’s mobile phone, and receipts and photo IDs of other people found on his phone, and the charge of the applicant with identity theft. The Tribunal, in its reasons, referred to the relevant notice of intention to consider cancellation, and identified the grounds upon which the non-compliance under s.102 was found.
In setting out that history, the Tribunal referred to the applicant’s steps in completing the passenger card, which the applicant presented at the Sydney International Airport in order to travel overseas. That history identifies that as part of a standard departure procedure, the applicant completed that outgoing passenger card.
The question and answer earlier identified was referred to by the Tribunal. The Tribunal’s reasons record that whilst at Sydney airport, the applicant was subject of a routine baggage search by the Australian Border Force officers as a result of which, the applicant was found to be in possession of the money referred to earlier. The Tribunal referred to the responses by the applicant’s solicitor that the money was provided to him by his uncle, and they were intended for his parents in Lebanon.
The Tribunal made reference to the applicant’s assertion that he was not aware of the total amount of the moneys in the envelopes provided by his uncle and the assertion that the envelopes were sealed with names written on them. The Tribunal referred to the applicant’s history in obtaining a student visa and the progress that he had made in that regard.
The Tribunal noted the applicant’s evidence that he had ceased studying in mid‑2013 and did not obtain the 457 visa until April 2015. The Tribunal sought to explore with the applicant what he had been doing since then. The Tribunal noted that since the applicant’s arrival in January, 2011 this was his first departure back to Lebanon.
The Tribunal noted that the applicant contended that he had AUD$3500 of his own money, and in relation to his assertion that he was not aware of the content of the envelopes. The applicant’s evidence was that his uncle had written his own name and contact number on the envelopes, so that if there were any problems with the applicant carrying this cash, his uncle could be called to verify the contents. The applicant’s uncle did not give evidence to the Tribunal.
The Tribunal’s reasons record the process of the hearing and, in the course of the hearing, the Tribunal records that it discussed with the applicant any breaches of the law since the non-compliance, and the seriousness of those breaches. The Tribunal noted that this included breaches of any law, including migration or criminal law. The Tribunal asked the applicant whether he had been charged with any offences. The applicant stated that at the time of the attempted departure, in July 2015, the Border Force had confiscated his mobile phone and that they alleged they found receipts and photo IDs of other people on his phone and that he had been charged with identity theft.
The applicant said, as a result of this, he had criminal proceedings pending in the Downing Court, that he thought would be dealt with shortly. The Tribunal noted that if a person is charged with a criminal offence by police, this will give rise to a brief of evidence to try and substantiate the charge. The Tribunal asked the applicant whether he had seen the brief of evidence, and the applicant responded that he had. The Tribunal made reference to the Department decision and the fact that he had indicated that there was information that the applicant had been arrested on 20 July 2015 and had been charged with credit card fraud, identity theft, dealing with property suspected of being the proceeds of crime and dealing with identification information, contrary to s.192J of the Crimes Act 1990 (NSW), and that these matters were currently before the Court awaiting final determination.
The Tribunal explored with the applicant his alleged contribution to the community. The Tribunal found that there was a non-compliance with the s.102(b) of the Migration Act 1958, in the way described in the notice given to the applicant under s.107. It was in those circumstances that the Tribunal turned to the consideration, under s.109(1), of the discretion to cancel the visa. The Tribunal identified that it was required to have regard to the prescribed circumstances set out in reg.2.41 of the Migration Regulations 1994 (Cth).
The Tribunal, in its discretionary considerations, identified that the information provided by the applicant on 20 July 2015 was provided in regard to his outgoing departure card and did not pertain to a decision to grant the applicant a visa or immigration to the visa holder, based wholly or partly on incorrect information or a bogus document.
The Tribunal under the heading “Any Breaches of the Law” addressed the non-compliance and the seriousness of those breaches under that heading and made reference to the fact that, on the basis of the evidence before the Tribunal, the applicant had been charged with offences pertaining to identity theft as a result of the confiscation of his phone on 23 July 2015. In this regard, the delegate’s cancellation decision record indicates that the applicant had also been charged with credit card fraud and dealing with property suspected of being the proceeds of crime, a contravention of s.192J of the Crimes Act 1900.
The Tribunal expressly noted that those matters were currently before the Court and have not been finally determined. The Tribunal found that the offences that the applicant had been charged with were of a serious nature and identified that this was a factor that weighed heavily on the Tribunal’s mind with regard to the exercise of discretion. In considering other matters, the Tribunal weighed the circumstances and noted that the applicant had been charged by the Australian authorities with a range of serious offences pertaining to fraud, identity theft and being in possession of goods suspected of being obtained through the proceeds of crime.
It was in those circumstances that the Tribunal said that, despite the fact that these charges are yet to be determined in a Court of law, they are nonetheless serious and, as noted, have been weighed in the exercise of discretion with regard to whether the visa should be cancelled. The Tribunal concluded, having given consideration to all the relevant circumstances, that the applicant’s visa should be cancelled.
The grounds of the further amended application are as follows:
Grounds of application
1. The Tribunal acted without and in excess of jurisdiction in that it misinterpreted or misapplied regulation 2.41(j) of the Migration Regulations 1994 in considering that regulation 2.41(j) was applicable in circumstances where the alleged breaches of the law occurred before noncompliance s109.
Particulars
a) Regulation 2.41(j) provided that one of the circumstances prescribed that the decision maker must take into account was any breaches of the law since the non-compliance and the seriousness of those breaches.
b) The non-compliance occurred on 20 July 2015 when the applicant ticked the “no” box on the outgoing passenger card.
c) On the same day the applicant was charged with offences contrary to s 400.9 of the Criminal Code 1995(Cth) and with dealing with identification information, contrary to s192J of the Crimes Act 1900 (NSW).
d) On the same day the applicant was taken into custody and his phone was confiscated.
e) Any breach of the law could only have occurred before the non-compliance.
2. The Tribunal acted without and in excess of jurisdiction in taking into account an irrelevant consideration namely alleged breaches of the law and the seriousness of those breaches before the non-compliance with s109.
Particulars
a) Regulation 2.41(j) provided that one of the circumstances prescribed that the decision maker must take into account was any breaches of the law since the non-compliance and the seriousness of those breaches.
b) The non-compliance occurred on 20 July 20 l 5 when the applicant ticked the “no” box on the outgoing passenger card.
c) On the same day the applicant was charged with offences contrary to s 400.9 of the Criminal Code 1995 (Cth) and with dealing with identification information, contrary to s192J of the Crimes Act 1900 (NSW).
d) On the same day the applicant was taken into custody and his phone was confiscated.
e) Any breach of the law could only have occurred before the. non-compliance.
3. The Tribunal acted without and in excess of jurisdiction by identifying the wrong issue, and/or asking itself the wrong questions, and/or otherwise misapplied Regulation 2.41 when it considered the seriousness of the alleged breaches of the law as opposed to the question of whether the applicant did in fact breach of the law .
Particulars
a) The Tribunal did not make a positive finding about whether or not the applicant did in fact breach the law.
b) The Tribunal could not have made a positive finding as it did not engage in any forensic exercise that would have permitted it to do so.
c)Being charged with a criminal offence is not synonymous with a breach and in order for regulation 2.41 (j) to be enlivened a finding that the applicant had in fact breached the law was required which in turn required the Tribunal to engage in .a forensic exercise.
4. The Tribunal acted without and in excess of jurisdiction in denying the applicant natural justice by failing to address the submission of the applicant about the heading of the relevant subdivision.
In relation to ground 1, it was advanced that the Tribunal had exceeded its jurisdiction and misconstrued the legislation by taking into account what was said to be the application of reg.2.41(j) of the Migration Regulations 1994. Regulation 2.41 is as follows:
Whether to cancel visa--incorrect information or bogus document (Act, s 109(1)(c))
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(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;
(k) any contribution made by the holder to the community.
Section 109 of the Migration Act 1958 is as follows:
Cancellation 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..
Regulation 2.43 is as follows:
Grounds for cancellation of visa (Act, s 116)
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:
(a) that the Foreign Minister has personally determined that:
(i) in the case of a visa other than a relevant visa--the holder of the visa is a person whose presence in Australia:
(A) is, or would be, contrary to Australia's foreign policy interests; or
(B) may be directly or indirectly associated with the proliferation of weapons of mass destruction; or
(ii) in the case of a relevant visa--the holder of the visa is a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction;
Note: A relevant visa is explained in subregulation (3).
(aa) in the case of a person who is the holder of a visa other than a relevant visa, the person:
(i) is declared under paragraph 6(1)(b) or (2)(b) of the Autonomous Sanctions Regulations 2011 for the purpose of preventing the person from travelling to, entering or remaining in Australia; and
(ii) is not a person for whom the Foreign Minister has waived the operation of the declaration in accordance with regulation 19 of the Autonomous Sanctions Regulations 2011 ;
(b) that the holder of the visa has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 ;
(e) in the case of:
(i) the holder of an Electronic Travel Authority (Class UD) visa who is under 18 ; or
(iii) the holder of a Tourist (Class TR) visa, that was applied for using form 601E, who is under 18 ; or
(iv) the holder of a Visitor (Class TV) visa who is under 18; or
(iva) the holder of a Subclass 600 (Visitor) visa in the Tourist stream, that was applied for using form 1419 (Internet), who is under 18;
that either:
(v) both of the following apply:
(A) the law of the visa holder's home country did not permit the removal of the visa holder;
(B) at least 1 of the persons who could lawfully determine where the additional applicant is to live did not consent to the grant of the visa; or
(vi) the grant of the visa was inconsistent with any Australian child order in force in relation to the visa holder;
(ea) in the case of a Subclass 601 (Electronic Travel Authority) visa--that, despite the grant of the visa, the Minister is satisfied that the visa holder:
(i) did not have, at the time of the grant of the visa, an intention only to stay in, or visit, Australia temporarily for the tourism or business purposes for which the visa was granted; or
(ii) has ceased to have that intention;
(f) in the case of:
(i) the holder of an Electronic Travel Authority (Class UD) visa who is under 18 and is not accompanied by his or her parent or guardian; or
(iii) the holder of a Tourist (Class TR) visa, that was applied for using a form 601E, who:
(A) is under 18 ; and
(B) is not accompanied by his or her parent or guardian; or
(iv) the holder of a Visitor (Class TV) visa who is under 18 and is not accompanied by his or her parent or guardian ; or
(v) the holder of a Subclass 600 (Visitor) visa in the Tourist stream, that was applied for using form 1419 (Internet), who is under 18 and is not accompanied by his or her parent or guardian;
that the holder of that visa does not have adequate funds, or adequate arrangements have not been made, for the holder's maintenance, support and general welfare during the holder's proposed visit in Australia;
(g) in the case of a temporary visa held by a person other than a visa holder mentioned in paragraph (h)--that the visa holder asks the Minister, in writing, to cancel the visa;
(h) in the case of a temporary visa held by a person who is under the age of 18 years and is not a spouse, a former spouse or engaged to be married--that:
(i) a person who is at least 18 years of age, and who can lawfully determine where the visa holder is to live, asks the Minister, in writing, to cancel the visa; and
(ii) the Minister is satisfied that there is no compelling reason to believe that the cancellation of the visa would not be in the best interests of the visa holder;
(i) in the case of the holder of:
(i) a Subclass 456 (Business (Short Stay)) visa; or
(ia) a Subclass 459 (Sponsored Business Visitor (Short Stay)) visa; or
(ib) a Subclass 600 (Visitor) visa in the Business Visitor stream; or
(ii) a Subclass 956 (Electronic Travel Authority (Business Entrant--Long Validity)) visa; or
(iii) a Subclass 977 (Electronic Travel Authority (Business Entrant--Short Validity)) visa--
that, despite the grant of the visa, the Minister is satisfied that the visa holder 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;
(ia) in the case of a holder of:
(i) a Subclass 400 (Temporary Work (Short Stay Activity)) visa; or
(ia) a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
(ib) a Subclass 402 (Training and Research) visa; or
(ic) a Subclass 403 (Temporary Work (International Relations)) visa; or
(id) a Subclass 411 (Exchange) visa; or
(ii) a Subclass 415 (Foreign Government Agency) visa; or
(iii) a Subclass 416 (Special Program) visa; or
(iv) a Subclass 419 (Visiting Academic) visa; or
(v) a Subclass 420 (Entertainment) visa; or
(vi) a Subclass 421 (Sport) visa; or
(vii) a Subclass 423 (Media and Film Staff) visa; or
(viii) a Subclass 427 (Domestic Worker (Temporary)--Executive) visa; or
(ix) a Subclass 428 (Religious Worker) visa; or
(x) a Subclass 442 (Occupational Trainee) visa; or
(xi) a Subclass 488 (Superyacht Crew) visa;
that the grounds in subregulation (1A) are met; or
(j) in the case of the holder of:
(i) a Subclass 600 (Visitor) visa that is not in the Business Visitor stream; or
(ii) a Subclass 676 (Tourist) visa; or
(iii) a Subclass 679 (Sponsored Family Visitor) visa;
that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit, or remain in, Australia as a visitor temporarily for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the visa holder or for another purpose, other than a purpose related to business or medical treatment;
(k) in the case of the holder of a Subclass 976 (Electronic Travel Authority (Visitor)) visa--that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit Australia temporarily for tourism purposes;
(ka) in the case of a holder of a Subclass 651 (eVisitor) visa--that, despite the grant of the visa, the Minister is satisfied that the visa holder 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 the tourism or business purposes for which the visa was granted;
(kb) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the applicant met the requirements of subregulation 457.223(4)--that, despite the grant of the visa, the Minister is satisfied that:
(i) the holder did not have a genuine intention to perform the occupation mentioned in paragraph 457.223(4)(d) at the time of grant of the visa; or
(ii) the holder has ceased to have a genuine intention to perform that occupation; or
(iii) the position associated with the nominated occupation is not genuine;
(l) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor )--that:
(i) the sponsor has not complied, or is not complying, with the undertaking given by the business sponsor in accordance with approved form 1067, 1196 or 1196 (Internet); or
(ii) the sponsor has given false or misleading information to Immigration or the Tribunal; or
(iii) the sponsor has failed to satisfy a sponsorship obligation; or
(iv) the sponsor has been cancelled or barred under section 140M of the Act; or
(v) the labour agreement has been terminated, has been suspended or has ceased;
(la) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa who was granted the visa on the basis of a nomination of an activity under regulation 1.20GA as in force immediately before 14 September 2009--that the holder is living or working within an area specified by the Minister in an instrument in writing for this paragraph;
(lc) in the case of a holder of:
(i) a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
(ia) a Subclass 402 (Training and Research) visa; or
(ib) a Subclass 411 (Exchange) visa; or
(ii) a Subclass 415 (Foreign Government Agency) visa; or
(iii) a Subclass 416 (Special Program) visa; or
(iv) a Subclass 419 (Visiting Academic) visa; or
(v) a Subclass 420 (Entertainment) visa; or
(vi) a Subclass 421 (Sport) visa; or
(vii) a Subclass 423 (Media and Film Staff) visa; or
(viii) a Subclass 427 (Domestic Worker (Temporary)--Executive) visa; or
(ix) a Subclass 428 (Religious Worker) visa; or
(x) a Subclass 442 (Occupational Trainee) visa; or
(xi) a Subclass 488 (Superyacht Crew) visa;
who is a primary sponsored person in relation to a person who is or was an approved sponsor--that 1 of the grounds specified in subregulation (1B) is met;
(ld) in the case of a holder of:
(i) a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
(ia) a Subclass 402 (Training and Research) visa; or
(ib) a Subclass 411 (Exchange) visa; or
(ii) a Subclass 419 (Visiting Academic) visa; or
(iii) a Subclass 420 (Entertainment) visa; or
(iv) a Subclass 421 (Sport) visa; or
(v) a Subclass 423 (Media and Film Staff) visa; or
(vi) a Subclass 427 (Domestic Worker (Temporary)--Executive) visa; or
(vii) a Subclass 428 (Religious Worker) visa; or
(viii) a Subclass 442 (Occupational Trainee) visa; or
(ix) a Subclass 457 (Temporary Work (Skilled)) visa;
who is a secondary sponsored person in relation to a person who is or was an approved sponsor--that the person who is or was an approved sponsor of the primary sponsored person to whom the secondary sponsored person is related has not listed the secondary sponsored person in the latest nomination in which the primary sponsored person is identified;
(le) in the case of a holder of:
(i) a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
(ii) a Subclass 427 (Domestic Worker (Temporary) -- Executive) visa; or
(iii) a Subclass 428 (Religious Worker) visa; or
(iv) a Subclass 457 (Temporary Work (Skilled)) visa;
who is a primary sponsored person or a secondary sponsored person in relation to a person who is or was an approved sponsor--that the person who is or was an approved sponsor has paid the return travel costs of the holder in accordance with the sponsorship obligation mentioned in regulation 2.80 or 2.80A;
(m) that the Minister reasonably suspects that the holder of the visa has committed an offence under section 232A, 233, 233A, 234 or 236 of the Act;
(n) that:
(i) a certificate is in force under paragraph 271(1)(l) of the Act, stating that a computer program was not functioning correctly; and
(ii) both of the following apply:
(A) the visa was granted at the time, or during the period, that is specified in the certificate;
(B) the grant of the visa is an outcome from the operation of that program, under an arrangement made under subsection 495A(1) of the Act, that is specified in the certificate;
(o) that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person;
(oa) in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa)--that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));
(ob) in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa)--that the Minister is satisfied that the holder is the subject of a notice (however described) issued by Interpol for the purpose of providing a warning or intelligence that:
(i) the holder has committed an offence against a law of another country and is likely to commit a similar offence; or
(ii) the holder is a serious and immediate threat to public safety;
(p) in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa--that the Minister is satisfied that the holder:
(i) has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country (other than if the conviction resulted in the holder's last substantive visa being cancelled under paragraph (oa)); or
(ii) has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country; or
(iii) is the subject of a notice (however described) issued by Interpol for the purposes of locating the holder or arresting the holder; or
(iv) is the subject of a notice (however described) issued by Interpol for the purpose of providing either or both of a warning or intelligence that the holder:
(A) has committed an offence against a law of another country; and
(B) is likely to commit a similar offence; or
(v) is the subject of a notice (however described) issued by Interpol for the purpose of providing a warning that the holder is a serious and immediate threat to public safety;
(q) in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa--that:
(i) an agency responsible for the regulation of law enforcement or security in Australia has advised the Minister that the holder is under investigation by that agency; and
(ii) the head of that agency has advised the Minister that the holder should not hold a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa;
(r) in the case of the holder of a Subclass 771 (Transit) visa--that, despite the grant of the visa, the Minister reasonably suspects that the holder of the visa:
(i) did not have, at the time of the grant of the visa, an intention to transit Australia; or
(ii) has ceased to have that intention.
(1A) For paragraph (1)(ia), the grounds are that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have at the time of grant of the visa, or has ceased to have, a genuine intention to stay temporarily in Australia to carry out the work or activity in relation to which:
(a) the visa holder's visa was granted; or
(b) if the visa holder is identified in a nomination after the visa is granted--the visa holder was identified in a nomination.
(1B) For paragraph (1)(lc), the grounds are the following:
(a) the approval of the person as a sponsor has been cancelled, or the approved sponsor has been barred, under section 140M of the Act;
(c) if the primary sponsored person is required to be identified in a nomination--the criteria for approval of the latest nomination in which the primary sponsored person is identified are no longer met;
(d) the person who is or was an approved sponsor has failed to satisfy a sponsorship obligation.
(1C) For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.
(1D) For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:
(a) because of the conduct of the holder; or
(b) because of the circumstances of the holder, other than compassionate or compelling circumstances; or
(c) because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or
(d) on the basis of evidence or a document given to the provider about the holder's circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder's circumstances.
(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a) in the case of a visa other than a relevant visa--each of the circumstances comprising the grounds set out in:
(i) sub-subparagraphs (1)(a)(i)(A) and (B); and
(ii) paragraph (1)(aa); and
(iii) paragraph (1)(b); and
(aa) in the case of a relevant visa--the circumstance comprising the grounds set out in subparagraph (1)(a)(ii).
(3) In this regulation:
"relevant visa " means a visa of any of the following subclasses:
(aa) Subclass 050;
(aaa) Subclass 070;
(a) Subclass 200;
(b) Subclass 201;
(c) Subclass 202;
(d) Subclass 203;
(e) Subclass 204;
(g) Subclass 449;
(i) Subclass 785, including a Subclass 785 visa granted before 2 December 2013;
(j) Subclass 786;
(k) Subclass 866..

The Tribunal, under reg.2.41 of the Migration Regulations 1994 is required to take into account the prescribed circumstances in its discretionary consideration for the purposes of s.109(1)(c) of the Migration Act 1958. This is not a case where the Tribunal made a finding that there was, in fact, a breach of the law since the non-compliance. Rather, the Tribunal identified, very carefully, that there were charges outstanding and identified the seriousness of those charges and sought to weigh in its discretion the seriousness of those charges in its decision. It was open to the Tribunal to do so under s.109. There is no substance in the proposition that the Tribunal misconstrued reg.2.41(j) of the Migration Regulations 1994.
Insofar as the submission was developed that reg.2.41(j) meant that any conduct, the subject of breaches of the law, must post-date the conduct of the non-compliance, I reject that construction. Taking into account s.4 of the Migration Act 1958, on its ordinary and natural construction, reg.2.41(j) of the Migration Regulations 1994, in its reference to “since”, is merely descriptive of conduct that is identified. It does not require the conduct, the subject of the breach, to have occurred post the non-compliance.
In any event, there was no erroneous interpretation of reg.2.41(j). The Tribunal was entitled to take into account that charges in respect of serious offences had been brought and it was appropriate and lawful for the Tribunal to take that consideration into account in determining its discretion under s.109 of the Migration Act 1958. No jurisdictional error of the kind identified in ground 1 is made out.
In relation to ground 2, it was suggested that the charges which the applicant had and currently has outstanding were irrelevant considerations in relation to s.109. I reject that submission. The Tribunal was not confined in relation to its discretion under s.109. The purpose of the Migration Act is to protect the Australian society and it was clearly appropriate for the Tribunal to take into account that the applicant is currently the subject of serious charges.
It was open to the Tribunal to take that fact into account in the exercise of its discretion. No jurisdictional error is made out in relation to ground 2.
In relation to ground 3 it is asserted that the Tribunal misapplied reg.2.41 of the Migration Act 1958 by reason of its failure to make findings of fact about whether a breach of the law had occurred. It was not necessary for the purpose of s.109(1)(c) of the Migration Act 1958 for the Tribunal to make findings of fact in relation to the prescribed matters.
Rather, it was mandatory for the Tribunal to take into account the prescribed circumstances insofar as it found them to exist. By referring to the fact of charges outstanding the Tribunal carefully distinguished between the finding of the fact of a breach of the law and a discretionary consideration in performing its function under s.109 of the Migration Act 1958.
It is not the case that the Tribunal had to make findings of fact that there was or was not a breach of the law and in circumstances where there are charges presently outstanding it was open to the Tribunal not to engage in any such fact finding exercise so long as the Tribunal had regard to the relevant prescribed circumstance insofar as it may have found it to exist. When charges are outstanding it is not necessary for the Tribunal under reg.2.41(j) of the Migration Regulations 1994 to engage in a pre-trial determination of the breach of law.
There was no identification of the wrong issue or wrong question by the Tribunal or any misapplication of reg.2.41 for not making findings of fact as to whether there was or was not a breach of the law within reg.2.41(j). No jurisdictional error is made out in relation to ground 3.
In relation to ground 4, it is clear that the Tribunal appreciated that the conduct in question was not conduct which could be said to be incorrect information on which the visa was based. The Tribunal’s reasons said as much.
The absence of any reference to the heading to subdivision (c) of division 3 of Part 2 was of no moment. It was not suggested that the s.109 power of cancellation was in some way confined to information on which the visa was based. The section is not so confined. In those circumstances it was not necessary for the Tribunal to refer to a heading that did not give rise to any consequence in relation to the decision before it.
Further, to the relevant extent the Tribunal appreciated the distinction in respect of conduct on which the visa is based and the circumstances of the present case. I reject the submission advanced on behalf of the applicant that conduct on which the visa is based is in some way more serious than other types of conduct. Ground 4 fails to make out any jurisdictional error.
The further amended application is dismissed. .

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 16 June 2016

[2016] FCCA 1341

2 June 2016

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Immigration

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