Dao v Minister for Immigration
[2008] FMCA 1000
•6 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DAO & ANOR v MINISTER FOR IMMIGRATION | [2008] FMCA 1000 |
| MIGRATION – Judicial review of cancellation of business visa – whether the time within which the applicant was to respond at an interview was a reasonable period – requirements of ss.119(1)(b) and 121(3)(b). |
| Migration Act 1958 Migration Regulations 1994 |
| Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 9 Leg Rep 2; (1996) 41 ALD 1 Tien v Minister for Immigration [1998] FCA 1552; (1998) 89 FCR 80; (1998) 159 ALR 405; (1998) 53 ALD 32 Budiyal v Minister for Immigration [1998] FCA 243; (1998) 82 FCR 166 Zhaou v Minister for Immigration [2002] FCA 748 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 195 ALR 24; (2003) 77 ALJR 454; (2003) 24(2) Leg Rep 2; (2003) 72 ALD 1 SAAP v Minister for Immigration [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162; (2005) 79 ALJR 1009; (2005) 83 ALD 545 Lui v Minister for Immigration [2004] FMCA 481 Alam v Minister for Immigration [2004] FMCA 583; (2004) 187 FLR 120 |
| Applicants: | QUANG SINH DAO & THI HUYEN PHAM |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Numbers: | MLG 666 of 2008 MLG 668 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 6 June 2008 |
| Date of Last Submission: | 6 June 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 6 June 2008 |
REPRESENTATION
| Counsel for the Applicants: | Mr M. Gerkens |
| Solicitors for the Applicants: | FCG Legal Pty Ltd |
| Counsel for the Respondent: | Mr R.C. Knowles |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Writs of Certiorari issue quashing the decisions of the respondent made on 27 May 2008.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 666 of 2008
| QUANG SINH DAO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
MLG 668 of 2008
| THI HAYEN PHAM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
This is the decision in two matters that have been remitted from the High Court to this court. The cases for both applicants are substantially the same and turn on the same findings of fact and questions of law; as a result it was convenient to hear the matters together.
The applicants arrived in Australia on 27 May on business visas which, as a result of decisions by a delegate of the minister at the airport on their arrival, were cancelled. They have remained in detention since that date pending the matter coming before the court. The matter came before Crennan J of the High Court for urgent interlocutory orders to stop the applicants from being removed from the country pending a hearing. When the matter was remitted to this court it was listed on the first available date when the parties would be ready to have the matter heard. Unfortunately the matter has come on for hearing on a Friday before a long weekend. The applicants have planned only a short visit to Australia, much of which has passed while they have been in detention.
Given the nature of the matter and the important fact that there are two people currently in detention I have sat very late tonight to finish hearing the evidence and submissions and give a judgement immediately in the matter.
The applicants, when they arrived, were chosen for a check of their visas. The delegate made inquiries of them relating to the activities they intended to undertake in Australia and as a result of that issued a ‘Notice of Intention to Consider Cancellation’ of their visas. The reasons for that notice being issued are attached to it, and are in the following terms:
You have claimed to have come to Australia with the intention of meeting partners for trade however you have been unable to provide the names of any businesses you will visit for this purpose. You have provided the contact details for a person in A/a who would act as the go-between for this purpose but were unable to explain how the contact with this person came about. When contacted, this person and her spouse have stated that your intention while in A/a is to work for them on a snow pea farm in Wonthaggi. This same contact also stated that you intended to stay in A/a for a period of 1-2 months which conflicts with information you provided during interview in which you stated you intended a stay of 1-2 weeks. You further claimed to have hotel accommodation for the period of your stay and that no-one would be collecting you from the Airport. This information was also at odds with that provided by your contact in A/a who claimed that they were at the Airport to collect you and that you would be staying with them until suitable accommodation could be found in a caravan park near the farm. I therefore believe you may not be a genuine business visitor.
Following the notice an interview took place with each of the applicants after which there was a decision by the delegate which is relevantly in the following terms:
I have considered the clients response, evidence available and other factors and consider that the reasons for cancellation of the visa outweigh the reasons not to cancel.
The visa holder claimed to have come to Australia with the intention of meeting partners for trade however she has been unable to provide the names of any businesses she will visit for this purpose. The visa holder provided the contact details for a person in A/a who would act as the go-between for this purpose but was unable to explain how the contact with this person came about. When contacted, this person and her spouse have stated that the visa holders intention while in A/a is to work for them on a snow pea farm in Wonthaggi. This same contact also stated that the visa holder intended to stay in A/a for a period of 1-2 months which conflicts with information provided during interview in which the visa holder stated a stay of 1-2 weeks was intended. The visa holder further claimed to have hotel accommodation for the period of her stay and that no-one would be collecting her from the Airport. This information was also at odds with that provided by your contact in A/a who claimed that they were at the Airport to collect you and that you would be staying with them until suitable accommodation could be found in a caravan park near the farm.
In your response you claimed that the director of your company was the person who arranged the contact in Australia yet you are both in Management positions and have no knowledge of any business this contact is connected with, nor any businesses you will meet during your stay in A/a. You have further claimed that you will act as a go-between for a third country, the Czech Republic, but again were unable to name your contact there and have no previous travel to the region.
I therefore considered that despite the grant of the visa, I was 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.
Significantly the ‘Notice of Intention to Consider Cancellation’ was issued on the day the applicants arrived in Australia, and it provided for an interview to take place 20 minutes after the time of the issue of the notice. The grounds raised by the applicants are in substance three in number. The first is that the delegate relied upon material that was said to have come from his verbal inquiries of a Mr Morello, which on the applicants’ case was simply not said by Mr Morello. As a result the case was put on the basis that the decision maker acted in the absence of any evidence to support the decision that was made.
The second ground is an allegation that the decision-maker failed to make a formal decision in accordance with s.116 of the Migration Act 1958 and reg.2.43 of the Migration Regulations 1994 in that his ultimate conclusions were expressed in the alternative, largely uplifting the words from reg.2.43(i). That is, his decision was in the following terms:
I therefore consider that despite the grant of the visa I was 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.
The third ground relates to the operation of s.121(3) which is as follows:
(3) Subject to subsection(5), if the invitation is to respond at an interview, the interview is to take place:
(a) at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period.
It is relevant as a result of s.119(1) which provides for the requirements of notice in these terms:
(1) Subject to Subdivision F (non‑citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:
(a) give particulars of those grounds and of the information (not being non‑disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.
The applicant argues that the decision-maker in this case did not give a reasonable period of notice of 20 minutes and that the decision-maker failed to exercise the decision-making requirement under s.121 of determining what would be a reasonable period of notice.
Ground 1
Ground one rises or falls depending upon my findings of fact on the evidence that has been led today. I have heard today the evidence of both applicants, Mr Morello and his partner Ms Bui, and the officer of the department. The disputed evidence relates to discussions held in a phone call between the departmental officer and Mr Morello. The phone call did not initially commence with Mr Morello but Ms Bui who was the contact person for the applicants on their trip. However, Ms Bui is unable to speak English with fluency or indeed understand much English at all. As a result her partner, Mr Morello, spoke to the officer of the department.
It does not seem to me that a determination of whether or not to accept Mr Morello's evidence is assisted by my views as to the credibility or veracity of the evidence given by the applicants or Ms Bui. It turns largely upon the demeanour and recounting of the evidence by both
Mr Morello and the department officer.
Mr Morello works on a farm. He presented as laconic in his demeanour and generally struck me as a person desirous of doing the right thing in life by the people he encounters.
His descriptions of the events indicated to me that he was not intimately involved in the precise arrangements that were taking place but he did not wish to cause any difficulties. It is not his own farm in the sense that he or an entity he controls owns the farm, although during cross-examination he soon lapsed into a description of it as "my farm," a similar difficultly that the departmental officer had when speaking to him. It appears he would have been attempting to say what he thought was needed to facilitate his wife’s plans, and been prepared to find temporary employment for the applicants if needed, however he knew little of his wife’s arrangements with the visa holders.
The departmental officer presented as a very forthright person who had taken a careful interest in the duties that he was undertaking and had been strongly focused upon ensuring that he took the appropriate steps in considering the visa cancellations in this case, and in making appropriate inquiries.
Having seen both men in the witness box I find that I am persuaded to accept the evidence of the departmental officer in this case to the extent that it differs from the evidence of Mr Morello. It appears to me that he has a more accurate recollection and his presentation is more reliable. I accept his evidence. As a result the first ground cannot succeed in the context of this case.
Ground 2
The second ground relates to the terms of the finding made by the departmental officer. I have set out the precise terms of that finding. It is argued that this finding does not in fact make a specific finding of fact as is required by the departmental officer. The argument against this proposition is that when reading the relevant sentence it is apparent the departmental officer formed the view that the applicants no longer held the appropriate intentions to support the visa, however, he was unsure on the material before him when those intentions had changed or indeed if they were ever appropriately held.
As a result he was unable to make a specific finding as to whether the visa holder had the appropriate intention at the time of the grant of the visa or ceased to have it at some intervening period between then and when the visa holders attended before him in Australia. It may have, in retrospect, been better for the departmental officer to simply state that on the material presently before him he was not satisfied that they had the appropriate intentions and therefore proceeded as he did.
However, I am mindful of the fact that these visa decisions must be made at a busy airport that often has around 3000 people travelling to and from overseas locations every day. It would be easy to overlook the pressures that are present on officers of the department in these contexts when there are such large pressures of work and obviously many time pressures on so many travellers. I also bear in mind that the decision-making in this particular context is not in the context of a review such as the migration review tribunal or the refugee review tribunal, it is being undertaken by an officer ‘on the ground’ and not a lawyer trained in decision-making who has time and experience on their side.
I have particular regard to the comments of the High Court in Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 9 Leg Rep 2; (1996) 41 ALD 1 in the context of this case:
[272] The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
In this case I am persuaded that the wording used by the departmental officer is sufficiently clear to show he made a specific finding of fact that deals with the question in issue in an appropriate way. I therefore find that this ground does not succeed.
Ground 3
The last ground relates to whether or not the departmental officer technically complied with the requirements set out in s.121.
At the outset I should record that there was some attempt to rely upon principles of procedural fairness by the counsel for the applicant, however, I accept counsel for the respondent's submissions that s.118A now shows that s.121 is exhaustive of the rules relating to the hearing rule with respect to the giving of notice. There does not appear to me to be room for arguments about the operation of the general principles of procedural fairness to the extent that s.121 makes provision for a procedure. Should I be wrong in this regard, for the reasons that I will refer to below, I would have nonetheless come to the conclusion that the departmental officer had, at least in the sense required by the common law rules, accorded the parties in this case procedural fairness.
The requirements of s.121 are that a reasonable period of notice must be specified in an invitation to the parties to present their side of events to the decision-maker before a decision can be made. Whilst the section refers to a prescribed period there is no period prescribed under the legislation.
The precise steps that must be taken by a decision-maker under s.121(3) are in issue. The starting point for proper consideration of the difficulty of this question is the decision of Goldberg J in Tien v Minister for Immigration [1998] FCA 1552; (1998) 89 FCR 80; (1998) 159 ALR 405; (1998) 53 ALD 32. In that case, His Honour said:
[27] In my opinion procedure to be observed and followed by s.121(3)(b) was not observed or followed with result that the cancellation of Mr Tien's visa was not effected lawfully.
In Tien's case the non-compliance with the section was more significant than that argued in this case. Nonetheless the effect of it was that a failure to comply with the section meant that the cancellation of the visa was not a lawful cancellation of the visa and therefore could not stand.
It appears clear that strict technical compliance with s.121 is required as a result of the way in which the legislation has been drawn, this is in considerable distinction to the previous position at common law where the rules of procedural fairness would apply and one would consider whether procedural fairness had been achieved in the context of the particular case.
The operation of s.121 was again considered by Tamberlin J in Budiyal v Minister for Immigration [1998] FCA 243; (1998) 82 FCR 166. In that judgment his Honour considered a notice that provided various cut off dates and other dates for a hearing, but was nonetheless required to comply with the s.121. His Honour said:
It is common ground that the last two lines of the letter of 8 September 1997, imposing the fourteen day cut-off date, were in standard form. There is no indication that any regard was directed, when settling the period, to the individual circumstances of the applicant. It is suggested that the failure to have regard to the particular circumstances in determining whether a reasonable time had been given coupled with the application of a standard period, as a matter of policy, gave rise to an additional error of law. It seems to me that there is force in this argument and, in my view, it would constitute a separate and independent ground for concluding that the RRT had erred.
The issue was also considered by Kenny J in Zhaou v Minister for Immigration [2002] FCA 748. Her Honour refers to the particular factual scenario and says:
[60] At the hearing, Mr Tobin explained that he specified 10 minutes because "This is my usual practice, and I understand it to be the usual practice of other officers to specify 10 minutes for this purpose". In cross-examination, he added, that the period of 10 minutes is the "norm". As the respondent noted, however, the applicant did not claim, in evidence or otherwise, that there was anything else he would or could have added had he had a longer opportunity to consider the matter, or that he had had an inadequate time to consider his response. The applicant was not re-examined on his admission that he had said everything that he wanted to say.
Unfortunately, as a result of the way the case was pleaded and argued before her Honour, her Honour's conclusions on this point appear to be obiter. However, it is obiter of a judge of the Federal Court and therefore in my view significant in the decision that I must make. Her Honour said:
[88] It may be that, in fixing a time in conformity with s.121(3)(b) of the Act, a decision-maker is obliged to have regard to the particular circumstances and ought not to fix a time solely by reference to standard practice: cf Budiyal v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 166 at 174 per Tamberlin J. Leaving aside the effect of s.474 of the Act and having regard to Mr Tobin's evidence, this might have constituted a separate and independent ground of review. It was not, however, a ground raised by the applicant in his amended grounds. These amended grounds alleged, in para(c), only a failure to have regard to "relevant material or considerations" in making the decision (i.e., the decision to cancel the applicant's visa). (As already stated, the applicant did not seek to support para(c) at the hearing.).
The reference to s.474 was made prior to the High Court decisions in Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 195 ALR 24; (2003) 77 ALJR 454; (2003) 24(2) Leg Rep 2; (2003) 72 ALD 1 and SAAP v Minister for Immigration [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162; (2005) 79 ALJR 1009; (2005) 83 ALD 545. Therefore, s.474 no longer appears to present an impediment to the application.
The issue has been touched upon in obiter comments in two decisions of Federal Magistrates. In Lui v Minister for Immigration [2004] FMCA 481, Lloyd-Jones FM said:
[59] The applicant was notified at the time of the interview to be held four days later, the nature of the issue to be considered and there was sufficient time for her to be able to marshall any material that she may require at that interview. It was submitted that the delegate erred in stipulating a time for the interview conforming with usual practice rather than considering the circumstances of this particular case. However, there is no evidence that the delegate did not consider the circumstances of this case. The applicant did not show that in the circumstances ten minutes was not reasonable.
In the decision of Alam v Minister for Immigration [2004] FMCA 583; (2004) 187 FLR 120 Barnes FM said:
[31] The specification of ‘reasonable’ place and time for an interview involves consideration of all the circumstances, including the nature of the grounds for cancellation, the personal attributes of the applicant, the presence of an interpreter or the applicant’s facility in the English language, the applicant’s familiarity with the matters of concern, the circumstances in which the decision fell to be made and, in light of this, whether it allowed adequate time for the applicant to prepare a response. Zhang at 530, Tien at 424, Zubair v MIMIA[2003] FMCA 440 per Raphael FM at [18], Zhao v MIMIA [2002] FCA 748 per Kenny J at [76] – [80].
Neither of the FMC judgments assist a great deal, in that the facts distinguish them, and there was no detailed consideration or review of the matters discussed by Goldberg, Tamberlin and Kenny JJ. Having regard to the decisions of Goldberg, Tamberlin and Kenny JJ it appears to me that the preferred view is that compliance with s.121(3) requires a decision-maker to have regard to the particular circumstances of the case in order to fix a reasonable time as described in that section.
In this case the evidence of the decision-maker is that he was aware that a norm was set in the workplace for 10 minutes notice and he adopted a practice of giving 20 minutes. On his evidence I find that the time period was set as a result of his practice and that he did not specifically turn his mind to the particular facts and circumstances of this particular case to determine a reasonable period. Having regard to the language barriers it was unlikely that 20 minutes would be sufficient. In the particular case the actual period allowed turned out to be far longer, however, the period that he set under s.121(3) was 20 minutes.
In these circumstances, when one has regard to the comments of Goldberg, Tamberlin and Kenny JJ, it is difficult not to come to the conclusion that there has been non-compliance, albeit in a very technical manner, with s.121(3). I should add at this point that I wish to make it entirely clear that I make no criticism of the intention or desire of the particular officer concerned. It is clear from the facts and circumstances that he chose to adopt a practice of giving a longer period of time than was the norm in the workplace and I have no doubt, not only on his evidence, but also his conduct, that he was cognizant of the importance of the substantive need to give visa holders a proper period of time in which to respond to such issues and that indeed in this case far longer was given than the initial period set under s.121 to ensure the applicants had a sufficient period of time to respond. As I indicated above, had this been a case that I was able to decide on the principles of procedural fairness I would not have been satisfied that on the common law principles that the applicants had not been accorded procedural fairness.
It is, however, a case that I must decide in accordance with the strict terms of s.121. The section has been considered by Goldberg J, Tamberlin J and Kenny J in the cases that I have referred to, indicating that strict compliance is required for the lawful exercise of the power. As a result I therefore find that as there has not been strict compliance the decision is not technically a decision in accordance with the section. The consequence is that I must issue a writ of certiorari to quash the particular decision.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Katherine Sudholz
Date: 21 July 2008
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