Doz16 v Minister for Immigration
[2017] FCCA 1157
•6 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOZ16 v MINISTER FOR IMMIGRATION | [2017] FCCA 1157 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – breach by Applicant of visa condition 8101 not to work in Australia – judicial review under s.476 of decision of Minister’s Delegate to cancel visa of Applicant under s.116 for breach of visa condition after search of property of Applicant at Sydney International Airport under s.252 of the Act – consideration of relationship between s.116 and s.252 – proper construction of s.252 and “reasonable grounds for suspecting there are reasonable grounds for cancelling” the visa – Applicant alleges that Delegate breached s.252 by not having objective grounds for “suspicion” and that search under s.252 therefore ultra vires – Delegate found to have had reasonable grounds for suspicion – Delegate not bound to take into account as a mandatory relevant consideration the Convention on the Rights of the Child which does not apply to unborn children or children not within Australian jurisdiction – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.116, 252, 338, 476 Migration Regulations 1994 (Cth) |
| Cases cited: AB v Minister for Immigration and Citizenship (2007) 96 ALD 53 Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174 |
| Applicant: | DOZ16 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 3294 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing dates: | 3 May 2017 and 18 May 2017 |
| Date of last submission: | 24 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms A Stratigos |
| Solicitors for the Applicant: | HIV/AIDS Legal Centre |
| Counsel for the Respondent: | Mr N Swan of Counsel |
| Solicitors for the Respondent: | Australian Government Solicitor |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 24 November 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3294 of 2016
| DOZ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a female citizen of Zimbabwe aged 28 years, having been born on 12 October 1988.
By Application filed in this Court on 24 November 2016 she seeks to quash the decision of 30 October 2016 of a Delegate (Delegate) of the Respondent, the Minister of Immigration and Border Protection (Minister) to cancel the Visitor (Class FA) (Subclass 600) visa (Visitor visa) granted to her on 7 June 2016.
The Visitor visa was cancelled pursuant to s.116(1)(b) of the Migration Act 1958 (Cth) (Act) on the basis that the Applicant had not complied with a condition of the Visitor visa, namely condition 8101 in Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations), which mandated that the Applicant “not engage in work in Australia”. This condition was imposed by cl.600.611 of Schedule 2 to the Regulations.
Jurisdiction of this Court
It is the first duty of a Court to be satisfied of its jurisdiction, which is its public authority to adjudicate: Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174 at 183 [32] per Allsop CJ, Katzmann and Gleeson JJ.
The parties agree, as do I, that this Court has jurisdiction under s.476(1) of the Act to hear and determine this case. Review of the decision of the Delegate was not possible under Part 5 of the Act because s.338(3)(b) precluded the decision of the Delegate from being a Part 5-reviewable decision as defined by that section. It follows that the decision of the Delegate to cancel the Visitor visa was not a primary decision as defined by s.476(4), over which this Court has no jurisdiction pursuant to s.476(2)(a).
Background
The Applicant applied for a Visitor visa on 20 March 2016 with the stated purpose of a family visit and to attend the wedding of her sister in Australia. She came with other family members as travelling companions and first arrived in Australia on 29 July 2016.
She indicated in her Visitor visa application that the proposed period of her stay in Australia was up to three months and that she would not be undertaking a course of study in Australia. She also stated that she was in a de facto relationship with her male partner in Zimbabwe.
Under the terms and conditions of her Visitor visa she could not work by reason of condition 8101 which states as follows:
8101 The holder must not engage in work in Australia.
A further term of the Visitor visa was that she was allowed multiple entries into Australia with the last permitted entry date of 7 June 2017, but was only allowed to stay for a period of three months after each date of arrival. This meant that within a period of three months she had to leave Australia, but having done so could then return to Australia.
As the Applicant arrived in Australia on 29 July 2016 she had to leave Australia before 29 October 2016. Accordingly on 27 October 2016 she left Australia and flew to Malaysia. Subsequently on Sunday 30 October 2016 she returned from Malaysia to Australia, arriving at Sydney International Airport.
The parties were agreed that I should hear and determine this case prior to 7 June 2017.
Events at Sydney International Airport
It is common ground or otherwise established by the agreed transcript of the Record of Interview between the Delegate and the Applicant on 30 October 2016 (Record of Interview) that the following core events occurred at Sydney International Airport upon the return of the Applicant:
a)The Applicant presented her passport to an Australian Border Force officer for immigration clearance;
b)A Delegate of the Minister approached her and the Applicant’s two mobile phones were handed over to the Delegate;
c)The Delegate then examined text messages in the mobile phones;
d)In one of those mobile phones, a text message in reply to another text message from a friend was as follows:
· r u working yet [text message from friend]
· not yet I just get part time jobs sometimes
e)The Delegate then put to the Applicant that those text messages and others confirmed that she had been taking cleaning jobs, and that she intended to take more;
f)At about this point in the conversation between the Applicant and the Delegate, the Applicant confirmed that she had been working in Australia;
g)During the interview, the Applicant informed the Delegate that she was 20 weeks pregnant and that she had a husband and child back in Zimbabwe;
h)The Delegate then informed the Applicant that she was going to give her a Notice of Intention to Consider Cancellation under section 116 of the Migration Act 1958 (Notice of Intention), on the basis that there appeared to be grounds to cancel her visa under s116(1)(b) of the Act, and the interview was suspended for ten minutes while the Delegate prepared that document;
i)The Delegate gave the Notice of Intention to the Applicant and the interview was again suspended for 10 minutes to allow the Applicant to consider her position and formulate reasons why her visa should not be cancelled;
j)When the interview resumed and the Applicant was given the opportunity to give reasons as to why her visa should not be cancelled, she said the following:
· …please just allow me to study at least and I’ll go back and I’ll try to adhere to the visa conditions…
· so I know I violated the law…
· I shouldn’t have breached the visa condition of my visa…
· I just want to have a qualification from here because it’s internationally recognised…
· a qualification which will help me wherever I go…
· If I can be with my family for a short time, because I rarely see them, my sisters, and, like, I promise to stop taking jobs… picking cleaning jobs.
k)The interview was suspended a third time to allow the Delegate to come to her decision; and
l)The Delegate then cancelled the Visitor visa of the Applicant, and upon resumption of the interview, she informed her of this decision and gave to her a Decision Record of Cancellation to that effect (Decision Record) under s.116 of the Act.
Relevant Statutory Provisions
Section 116 of the Act provides as follows:
116. Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa; or
…
It is common ground that the Delegate was validly authorised by the Minister to exercise lawfully the power granted by s.116 of the Act. Further, it is not suggested by the Applicant that the Delegate acted arbitrarily, capriciously or legally unreasonably.
The power of search under the Act is provided by s.252 of the Act, which has apparently not yet been the subject of judicial consideration. It is sufficient for present purposes to set out s.252(1)-(3), which provide as follows:
252 Searches of persons
(1) For the purposes set out in subsection (2), a person, and the person's clothing and any property under the immediate control of the person, may, without warrant, be searched if:
(a) the person is detained in Australia; or
(b) the person is a non-citizen who has not been immigration cleared and an authorised officer has reasonable grounds for suspecting there are reasonable grounds for cancelling the person's visa.
(emphasis added.)
(2)The purposes for which a person, and the person's clothing and any property under the immediate control of the person, may be searched under this section are as follows:
(a) to find out whether there is hidden on the person, in the clothing or in the property, a weapon or other thing capable of being used to inflict bodily injury or to help the person to escape from immigration detention;
(b) to find out whether there is hidden on the person, in the clothing or in the property, a document or other thing that is, or may be, evidence for grounds for cancelling the person's visa.
(3) An authorised officer may detain a person for the purpose of searching the person in accordance with this section.
Factual Findings on Contested Evidence
The Applicant swore an affidavit on 22 November 2016 which set out her version of the events at Sydney International Airport. The Delegate likewise affirmed an affidavit on 11 April 2017 giving her version of events. The Applicant and Delegate were both examined in chief and cross-examined.
I accept and prefer the evidence of the Delegate in relation to the relevant events at Sydney International Airport. I regard her evidence as credible and reliable. Her version of events seems inherently more likely than the version offered by the Applicant in those areas where their versions differ. The Delegate was not damaged in cross-examination and gave her answers convincingly and believably.
On the other hand, the Applicant withdrew [24] of her affidavit before cross-examination. This was in the context where the Delegate in [18] of her affidavit had given evidence that the Applicant, in response to a question about whether she had engaged in work while previously in Australia, had replied in words to the following effect:
Yes, I was doing some cleaning jobs for some relatives and some people around.
However, in [24] of her affidavit the Applicant had claimed that she had told the Delegate words to the effect of:
I have not been working.
Accordingly, prior to the hearing there was a conflict in the evidence on this important point. The Applicant was denying that she had admitted doing work and the Delegate was asserting that the Applicant had made such an admission.
Nevertheless, at the hearing, Ms Stratigos, who appeared for the Applicant, asked her whether everything in her affidavit was correct, and the Applicant referred to [24] of her affidavit and then gave evidence that she did in fact tell the Delegate that she had been working in Australia. She said the reason her evidence in [24] of her affidavit was not correct was that when she swore her affidavit she was in hospital, was pregnant, a lot of things were happening in her life and she was in detention.
However, the Applicant then went on in chief to say that in fact her admission of working was not correct and in truth she had not been working in Australia. She said that the reason she told the Delegate she had been working was that she thought the process she was going through would be quicker and she wanted to get home as she was tired and was not feeling well that day.
The Applicant was cross-examined by Mr Swan of Counsel, who appeared for the Respondent, about [11], [12] and [13] of her affidavit. The purport of these paragraphs was that the Australian Border Force officer for immigration clearance had returned her passport to her after she had presented it to him and that the Delegate required to see the Applicant’s mobile phones by a unilateral direction to hand them over, without any prior conversation or question. However, under cross-examination the following exchange took place:
Mr Swan: Okay, well, going to the next thing in 11, you say:
The officer then handed me my passport.
Now, I would put it to you that the officer, in fact, did not hand the passport back to you; do you agree with that?
Applicant:I can’t remember but I think he handed me the passport and then directed me to somebody else to stand somewhere.
Mr Swan:
So your evidence is that you can’t actually remember
whether the officer gave the passport back to you; is
that correct?
Applicant:Yes.
…
Mr Swan:
Okay. And before – in paragraph 12 and at the start of
paragraph 13, you then talk about how the delegate
approached you and took the phone; do you see that?
Applicant: Yes.
Mr Swan:
Now, I would suggest to you that, again, your
recollection of what you said in paragraphs 12 and 13
is not clear; is that right?
Applicant:Yes, it’s not that clear.
Mr Swan:
So you can’t be sure now that what you said occurred
in paragraphs 12 and 13 actually did occur?
Applicant:
I think it did occur but maybe I might have missed
some of the parts.
Mr Swan:
Right, so it’s the case, is it, that it’s quite possible that
you’ve just not included in your affidavit some of the
events that took place?
Applicant:Yes.
Mr Swan:
Okay. Now, I would suggest to you that before the
officer took your phone, you, in fact, had a
conversation with that officer; is that right?
Applicant:
I think she asked me why I was in Australia. I can’t
really remember, but I think she asked me those things.
Then she – then asked for my phone.
Mr Swan:
Right. So your evidence is then, that the officer did
have a conversation with you before asking for the
phone?
Applicant: I think so.
Mr Swan: Is that a yes?
Applicant: I’m not really sure, but I think she did say a few words.
Mr Swan: She did say – I didn’t hear ‑ ‑ ‑?
Applicant: A few words.
Mr Swan: “A few words”?
Applicant: Yes.
Mr Swan:
So it’s not the case, then, that the officer just effectively
walked up and took the phone from you?
Applicant: I can’t really say.
Mr Swan:
And is the reason that you have not included all of that
further activity to which you’ve just referred in your
affidavit because you were stressed and in hospital at
the time?
Applicant: Yes.
The Delegate at [13] and [14] of her affidavit gave evidence that she would never have asked to see a passenger’s phone without first having a conversation with the passenger. Her evidence in [13] and [14], upon which she was not challenged in cross-examination and which I accept, was as follows:
[13]My usual practice when speaking to an incoming passenger referred to me is to ask certain questions of them, including the passenger’s reason for travelling to Australia, how the passenger intended to support him or herself while here and what incentive he or she had to return home. I do not recall all of the specific conversation I had with the Applicant in which I asked these questions, but I believe that I would have asked them. In preparing this affidavit I have read paragraph 11 to 13 of the Applicant’s affidavit sworn 22 November 2016. I would never ask to see a passenger’s phone without first having a conversation with them. That is because the passenger could be for example, a diplomat or an Australian citizen, and because I am aware that I am not permitted to search a phone unless I suspect there are grounds for cancelling a passenger’s visa. In accordance with my usual practice, I always speak to the passenger to confirm their identity and what their particular immigration circumstances are.
[14]I know, and I knew on 30 October 2016, that I am not permitted to search a passenger’s phone unless I suspect that there are grounds for cancelling the passenger’s visa. I have never searched a passenger’s phone without holding that suspicion. I did search the Applicant’s phones on that day. I believe that I did so because the above information contained in the passport and the above information contained on the incoming passenger card raised a profile of someone who may be in breach of the conditions of their visa and caused me to suspect that the Applicant had been working in Australia on her previous visit.
I accept the Delegate’s affidavit evidence and oral evidence at the hearing and in particular find that the Australia Border Force officer did not return the Applicant’s passport to her after she had presented it to him and that prior to asking for the Applicant’s mobile phones the Delegate did engage in a conversation with her, which at least had the effect of confirming the Applicant’s identity and her particular immigration circumstances generally.
I further find that the Delegate first approached the Applicant after having received what is called a “T-Referral” from an Australian Border Force officer which required the Delegate to check the Applicant in relation to issues such as whether the Applicant was a bona fide visitor and/or had complied with her visa conditions. I reject the submission made on behalf of the Applicant that the Delegate founded her suspicion based solely upon the fact that she had received the “T-Referral” or that her suspicion was dictated by the “T-Referral”. Rather, I consider that notwithstanding the Delegate’s receipt of the “T-Referral” she conducted her own independent investigation of the Applicant’s position and circumstances before deciding to cancel the Visitor visa.
Grounds of Application
Ground 1 is as follows:
1.The Respondent fell into error by relying on material, obtained pursuant to a search of the Applicant conducted ultra vires, in making the decision to cancel the Applicant's visa.
Particulars
(a)The Applicant arrived at Sydney International Airport and presented to Australian Border Force for immigration clearance.
(b)The Applicant was directed by a delegate of the Respondent (“the delegate”) to produce her mobile phone (“the mobile phone”).
(c)The delegate did not at this time have any basis on which to believe that there were reasonable grounds for suspecting that there were reasonable grounds for cancelling the Applicant’s visa.
(d)In directing the Applicant to the mobile phone, the delegate was acting ultra vires.
(e)The delegate accessed the mobile phone and extracted text messages from the mobile phone (“the text messages”).
(f)In accessing the mobile phone, the delegate was acting ultra vires.
(g)The delegate then questioned the Applicant about the text messages.
(h)The delegate issued to the Applicant a Form 1111 Notice of intention to consider cancellation under section 116 of the Migration Act 1958 (“the Notice”) that relied on:
a. The text messages;
b.The responses of the Applicant to questioning on the text messages.
(i)The Applicant's visa subclass FA600 granted 7 June 2016 (“the visa”) was subsequently cancelled on the basis of:
a. The text messages;
b.The responses of the Applicant to questioning on the text messages.
Ms Stratigos accepted that the decision to cancel the visa under s.116 of the Act was the only decision that her client was seeking to quash, and thus that the Applicant was not seeking to quash the decision of the Delegate under s.252 to require the handing over of the mobile phones and to search their contents. Rather, in short she put her argument under Ground 1 upon the basis that the Delegate, for the purposes of s.252 of the Act, did not have reasonable grounds for suspecting that there were reasonable grounds for cancelling the Visitor visa and therefore the search constituted by the Delegate’s requirement that the mobile phones be handed over was not lawful. In consequence, neither the evidence (being the text messages) that was obtained ultra vires from the search nor the answers given by the Applicant to the Delegate during the questioning recorded in the Record of Interview could be taken into account by the Delegate, when she was exercising the power under s.116 of the Act to cancel the Visitor visa. As such evidence had been taken into account by the Delegate the cancellation was invalid and of no effect.
Ground 2 is as follows:
2.The Respondent's decision was affected by jurisdictional error as they failed to take into account relevant considerations.
Particulars
(a)S.116(1)(b) of the Act requires a delegate to exercise discretion in considering whether or not an (sic) visa holder's visa should be cancelled.
(b)The Applicant identified to the delegate that she was pregnant.
(c)The Applicant identified to the delegate that she has a husband and daughter in Zimbabwe.
(d)The delegate entirely failed to considered the impact upon the Applicant's children, both born and unborn, of cancelling the visa.
(e)The delegate was required to consider as a primary consideration the best interests of any minor children that may be affected by the decision.
Ground 3 was not pressed. It had asserted jurisdictional error on the basis that the Delegate had made a finding for which there was no evidence. Its factual basis had been the denial by the Applicant in [24] of her affidavit that she had admitted to the Delegate that she had been working in Australia. Obviously Ground 3 could not be maintained after the Applicant’s withdrawal of [24] and was not pressed in the Applicant’s Outline of Submissions dated 18 April 2017 (AS) or at the hearing.
Ground 1 and Meaning and Construction of s.252 of the Act
Statutes which confer a power conditioned upon the existence of reasonable grounds for a state of mind such as suspicion or belief are common. “Powers of search and seizure, or arrest, are often conditioned in that way”: McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 (McKinnon) at 429 per Gleeson CJ and Kirby J.
The expressions “reasonable grounds for suspecting” and “reasonable grounds for believing” have been the subject of judicial consideration in a number of cases in recent times including Hussien v Chong Fook Kam [1970] AC 942 (Privy Council); George v Rockett (1990) 170 CLR 104 (George) (High Court of Australia); O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 (House of Lords); Hyder v Commonwealth [2012] 217 A Crim R 571 (New South Wales Court of Appeal) and Prior v Mole (2017) 91 ALJR 441 (High Court of Australia).
The effect of these authorities is that “suspicion” in sections similar to s.252 of the Act describes a state in the mind of the relevant person amounting to “conjecture”, “surmise”, “actual apprehension”, “mistrust” or “fear” in relation to the facts being considered as the factual basis for the “suspicion”. In George at 115-116 Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ said as follows:-
Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam, “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’” The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd. v. Rees, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, “was unable to pay [its] debts as they became due” as that phrase was used in s.95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said:
“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in sub-s.(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.”
(citations omitted.)
In relation to the meaning of “suspicion” in the present circumstances, I now must consider what is necessary to satisfy the requirement in s.252 of the Act that the authorised officer (here the Delegate) had “reasonable grounds for suspecting there are reasonable grounds for cancelling the person’s visa” before conducting a search pursuant to that section.
First, in my view the authorised officer must have an actual subjective suspicion that he or she “has reasonable grounds for suspecting there are reasonable grounds for cancelling the person’s visa”.
Second, the relevant facts and circumstances known to the authorised officer at the time must also constitute objectively reasonable grounds for the subjective suspicion held by him or her. This requires that the circumstances provide a sufficient foundation for a reasonable person to form the suspicion.
In this context it is also appropriate to bear in mind that in determining whether the authorised officer had the relevant state of mind, here being “suspicion”, that the Court is considering a preliminary stage of the investigation and that what constitutes reasonable grounds for forming a suspicion “must be judged against what was known or reasonably capable of being known at the relevant time”: Ruddock v Taylor (2005) 222 CLR 612 at 626 [40] per Gleeson CJ, Gummow, Hayne and Heydon JJ.
Consideration of Ground 1
I did not understand Ms Stratigos to submit that the Delegate did not subjectively suspect that there were reasonable grounds for suspecting that there were reasonable grounds for cancelling the Visitor visa. In any event, at [13] and [14] of her affidavit (extracted at [24] above) the Delegate said that she was aware that she was not permitted to search a phone unless she suspected that there were grounds for cancelling the passenger’s visa and that she had never searched a passenger’s phone without holding such a suspicion. Further, it was not suggested to the Delegate in cross-examination that she did not actually suspect that there were reasonable grounds for suspecting there were reasonable grounds for cancelling the Visitor visa. I find that the Delegate subjectively held the relevant suspicion.
The next issue is whether that suspicion was reasonably based. Answering that question “involves an evaluation of the known facts, circumstances and considerations which may bear rationally upon the issue in question”: McKinnon at 430 [11] per Gleeson CJ and Kirby J. In my view, the circumstances known to the Delegate provided a sufficient foundation for a reasonable person to have formed the suspicion subjectively held by her, namely that there were reasonable grounds for cancelling the Visitor visa.
I have come to this view because of the following matters, facts and circumstances which were known to the Delegate before she asked for the Applicant’s phone.
First, the Applicant held a Visitor visa which was subject to Condition 8101 providing that she “must not engage in work in Australia”.
Second, once the Applicant had come to the Delegate’s attention, the Delegate conducted her own independent investigation of the passenger’s circumstances including examining the Applicant’s passport and incoming passenger card in order to ascertain the Applicant’s usual occupation, which was stated on the passenger card to be “Student”, with her country of residence being Zimbabwe. This in my view had a tendency to suggest that the Applicant usually resided in Zimbabwe as a student likely to be without employment and therefore of limited resources.
Third, from the Applicant’s incoming passenger card and passport the Delegate was aware that the Applicant had been present in Australia for 3 months from 29 July 2016 to 27 October 2016, and was intending to stay in Australia for a further three months from 30 October 2016 with her main reason for doing so the “visiting (of) friends or relatives”. That appeared to mean that the Applicant would be staying in Australia for a total 6-month period from 29 July 2016 to 30 January 2017 “visiting friends or relatives” while still having her usual occupation as student in Zimbabwe. These facts and circumstances had a tendency to reasonably raise the question of the funding by the Applicant of her general costs and expenses of living.
Fourth, the Applicant had taken a short 3-day trip to Malaysia between 27 October 2016 and 30 October 2016, the duration of which trip was insufficient for the Applicant to either return home to Zimbabwe or undertake any tourist activities in Malaysia.
The totality of the above factors cumulatively reasonably raised the issue of how the Applicant could, given her usual occupation as a “student” in Zimbabwe, fund and support her travel to Australia, her stay in Australia of 6 months and her flights to Malaysia and back to Australia. One obvious explanation is that the Applicant might have been working in Australia and might be returning to work again, with the very short duration of travel to Malaysia suggesting an incentive to return to Australia as quickly as possible to continue working.
Further, the above factors raised the issue of why the Applicant would be spending such a long period in Australia to visit friends and family, namely 6 months, when she was supposedly actually studying in Zimbabwe, again raising the question of whether the Applicant was in Australia to work or at least in part to work, rather than merely visiting friends and family. In her affidavit, the Delegate said of the various factors in her mind as follows:
[10]… I recall thinking that the amount of time the Applicant had been away from Australia would have left insufficient time for the Applicant to have undertaken any tourist activities in Malaysia or to have returned to Zimbabwe to see her family. I recall also thinking that the Applicant's travel from Australia, and immediate return, suggested that she had an incentive for returning to Australia as quickly as possible and that incentive could be financial or work related.
[11]I recall that when I read the passenger card and passport on 30 October 2016 my attention was raised, as the Applicant appeared to be a student arriving for a three month holiday to Australia, unable to work here, and who had obviously recently been in Australia also unable to work, and was now returning after a return flight and being out of the country for only three days.
[12]If I found the features identified above on the incoming passenger card, as well as knowing that the Applicant had recently been in Australia and was returning so soon after, I would certainly have been suspicious how the Applicant was funding her travel to Australia, how she was funding herself while in Australia, whether she was in fact travelling to Australia for the purpose of work and whether she had been working in Australia on her previous visit. I believe that all of those thoughts were present in my mind on 30 October 2016 after seeing the material to which I have referred.
Having regard to the state of mind described in [10], [11] and [12] above the Delegate came to the view and belief expressed in the last sentence of [14] of her affidavit (extracted at [24] above) to the effect that the Applicant had a profile of someone who may be in breach of visa conditions and caused her to suspect that the Applicant had been working in Australia on her previous visit. It was at this point and in these circumstances that the Delegate required the mobile phones and located the text messages. The Delegate’s suspicion constituted a state of mind amounting to “conjecture”, “surmise”, “actual apprehension”, “mistrust” or “fear” and I consider that her suspicion was based on a sufficiently objective foundation for a person to reasonably form that suspicion.
In my view the requirement by the Delegate of the Applicant to produce the mobile phones and the Delegate’s reading of the texts was lawful and authorised by s.252 of the Act. Therefore the Delegate’s reliance on those text messages and on the answers given by the Applicant in response to the Delegate’s questioning was not precluded or otherwise ultra vires on account of any breach of s.252 of the Act and Ground 1 must accordingly fail.
Having come to that view, I refrain from considering the possible legal consequence if I had found that the Delegate’s search of the mobile phone and subsequent questioning of the Applicant were not lawful and authorised under s.252 of the Act. At the hearing there was considerable reference to legal authority and principles which would have conceivably impacted on the resolution of that issue, including whether the proper construction of the Act, and in particular s.252 and s.116, evidenced that it was Parliament’s intention that a decision to cancel a visa under s.116 could or should be invalid because the relevant decision-maker had relied in whole or in part on evidence obtained in breach of s.252. The parties also referred to the law relating to administrative decision-makers taking into account material unlawfully obtained and the authorities which state that a decision-maker cannot take into account evidence where there has been “conscious maladministration” or a deliberate failure to administer the law according to its terms.
I record that even if I had found that the Delegate had not acted lawfully and in accordance with s.252 of the Act, I would have been satisfied that she did not consciously break the law or demand more of the Applicant than she thought that she was bona fide entitled to ask. Apart from that observation, I refrain from considering this issue, because in the circumstances of this case I regard it as appropriate to determine only those matters which I see as necessary for its determination. The area of migration law should not be burdened with obiter dicta unnecessary to the disposition of the particular case: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 619 [34] per Kirby J.
Consideration of Ground 2
Ground 2 relies on an assertion that the decision of the Delegate to cancel the Visitor visa under s.116 of the Act was infected by jurisdictional error because the Delegate failed to take into account relevant considerations. Of such a ground, Mason J (as he then was) said as follows in Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24 at 39:
(1) Failure To Take Into Account a Relevant Consideration
The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action…. The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision.
(citations omitted.)
The concepts of “relevant considerations” and “taking into account” were recently discussed by Basten JA in Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at 89 [9]-[10] where he stated:
[9]… The term “relevant considerations” is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J, it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be “mandatory consideration”. Further, a matter traditionally described as an “irrelevant consideration” is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.
[10]The next concept is that of “taking into account”. It covers a spectrum of conduct. If a decision-maker who gives reasons for a decision makes no reference to a particular matter, it may be inferred that he or she disregarded it, either deliberately or through inadvertence. In either case, if it were a mandatory consideration, there would be an error of law. If, however, the matter is referred to there may still be a basis for review. In some cases, it is asserted that there has been a failure to give “proper, genuine and realistic consideration” to a particular matter. That is best understood as a complaint of failure “to give adequate weight to a relevant factor of great importance”: see Peko-Wallsend at 41 per Mason J…
The Particulars to Ground 2 focused on the Applicant’s then 5-year-old child resident in Zimbabwe and her child en ventre sa mère as of 30 October 2016 as the relevant considerations not taken into account by the Delegate.
Convention on the Rights of the Child
It was submitted that because Australia had ratified the Convention on the Rights of the Child (CRC), the Delegate was required to consider as a primary consideration the best interests of any born and unborn children of the Applicant who might be affected by the cancellation of the Visitor visa. However, in my view no obligation arising from the CRC was imposed on the Delegate in the circumstances of this case for the following reasons.
First, on its own terms the CRC only imposes obligations on States in relation to children within their jurisdiction. Article 2(1) of CRC provides:
States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
(emphasis added.)
There was no evidence or suggestion made by the Applicant to the Delegate that the 5-year-old daughter was within the jurisdiction of Australia on 30 October 2016. Rather the evidence was that the child was back in Zimbabwe. The Record of Interview indicates the following exchange took place:-
Delegate:So I understand that you have a husband and a child in Zimbabwe.
Applicant: Yes.
Delegate: How old's your child?
Applicant: She is five, turning six in December -
Delegate: Daughter?
Applicant: Yes, daughter.
Accordingly, as the 5-year-old daughter of the Applicant was a resident of Zimbabwe and not within Australia’s jurisdiction, she was not a child to whom Australia owed obligations under Article 2(1) of the CRC.
Second, Article 3(1) of the CRC did not apply to the Applicant’s child who was unborn at the time of the Delegate’s decision. Article 3(1) of the CRC provides:-
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
As Griffiths J said at [28] in SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459:
For the following reasons, however, I consider that each of the three new grounds should be dismissed. First, it is to be noted that the appellant’s son was not born until after the decisions of both the delegate and the RRT. The springboard for each of the three fresh grounds of appeal is the obligation imposed by Article 3 of the United Nations Convention on the Rights of the Child (the Convention) to the effect that, in all actions concerning children, “the best interests of the child shall be a primary consideration”. “Child” is defined in Article 1 of the Convention as meaning “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”. It is also to be noted that the Preamble to the Convention contains the following statement:
Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”
I am not aware of any judicial authority supporting the proposition that Article 3 [of] the Convention applies to unborn children.
(emphasis added.)
Further, at the hearing I understood Ms Stratigos to accept that it was the case that the CRC does not apply to unborn children.
Third, it was common ground that the CRC, whilst having been ratified by Australia, had not been incorporated into Australian domestic law. It thereby follows that there was no statutory obligation binding the Delegate to treat the best interests of the child as a primary consideration in her decision, in the sense of that consideration being mandatory. As Tracey J said in AB v Minister for Immigration and Citizenship (2007) 96 ALD 53 at 60 [18]:-
The applicant accepts that none of the relevant treaty obligations has been incorporated in Australian domestic law. There is, therefore, no statutory obligation on the Minister or other decision-makers under the Act to give effect to those obligations when making decisions under the Act…
In my view the Delegate was also not bound to consider the interests of any born or unborn children of the Applicant, because the Applicant herself had never raised the circumstances of such children as factors to be taken into account by the Delegate in coming to her decision as to whether or not to cancel the Visitor visa. The matters that she wanted the Delegate to take into account are those extracted in [12(j)] above. The Applicant made no claims or submissions to the Delegate in relation to her children or how they would be affected by the cancellation of her visa. It was for the Applicant to make such claims or submissions if she wanted the Delegate to take them into account: Sales v Minister for Immigration and Citizenship (2007) 99 ALD 523 at 529 [25] per Flick J.
I record that Mr Swan also submitted that the Delegate’s decision to cancel in this case did not constitute or amount to an “action concerning children” within the meaning of Article 3(1) of the CRC and relies in support of that submission on AZAEH v Minister for Immigration and Border Protection [2015] FCA 414 (AZAEH) at [30], [33] and [38] per Kenny J. On one view the Delegate’s decision was to cancel the Visitor visa of the Applicant for breach by her of a condition imposed on her Visitor visa and such action could not reasonably be considered as an “action concerning children”, particularly when the practical effect of the cancellation was to return the Applicant to her 5-year-old daughter in Zimbabwe.
However, in Guo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1585 (Guo) Wilcox J held at [55] that it was unlikely that the phrase “actions concerning children” was intended by the drafters of the Convention “to be interpreted in a narrow or pedantic sense. Rather, it is likely that the phrase was intended to be read in a generous and practical way, to include the myriad of official decisions which impact upon the welfare of children, whether in general or in particular.” See also on this issue the decision of Mathews J in Suleyman v Minister for Immigration and Multicultural Affairs [2000] FCA 610 and the discussion therein at [32]-[38] of the phrase “actions concerning children”. As I have not heard argument on the meaning and effect of Guo on Mr Swan’s submission or how it may be reconciled with Kenny J’s decision in AZAEH, I refrain from expressing any opinion on this issue where in the circumstances of this case it is not necessary for me to do so.
Finally and in any event, I am of the view that the Delegate did take into account the interests of both the born and unborn child of the Applicant. She had confirmed with the Applicant that she was pregnant and had a 5-year-old daughter back in Zimbabwe. With that knowledge, the Delegate completed section 9 of Part B of the Decision Record. This section required her to give her “assessment of the reasons the Visitor visa should not be cancelled” by reference to “the degree of hardship which might be caused to the visa holder, their family members and others” if the Visitor visa were cancelled. The Delegate stated in this section of the Decision Record as follows:-
Although the visa holder has not raised any financial, psychological, emotional or other hardship for themselves or their family I have considered that cancellation of this visa may result in some financial, psychological, emotional or other hardship for the visa holder: therefore I apply some weight in favour of the visa holder when considering this factor.
From this, I infer that the Delegate did turn her mind to the potential impact of cancellation of the Visitor visa on the Applicant and her family, including her born and unborn children. The Delegate had just recently been made aware of the position pertaining to the Applicant’s born and unborn children and a consideration of their position by the Delegate is evidenced by her statement extracted at [65] above in response to the requirement of the Decision Record that she assess hardship to family members of the Applicant. It is true that there is no express reference by the Delegate to the daughter back in Zimbabwe or to the unborn child. However the fact that the Delegate did not expressly refer to them does not mean the Delegate did not consider their position and circumstances. The Delegate was not obliged to comment on every item of material before her: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14] per Gray, Tamberlin and Lander JJ. As Collier J recently stated in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [45]:
Second, there is ample authority to support the proposition that, merely because the Tribunal did not specifically mention a fact or an issue, the Court should not necessarily infer that the Tribunal did not consider that fact or issue. So, for example, in SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25] the Full Court observed in that case that the appellants were obliged to do more than point to material capable of supporting an inference that the Tribunal did not consider the particular material – it was necessary for the appellants to demonstrate that, having regard to all of the evidence and other material before the Court, it would be appropriate to draw that inference. In circumstances where the Tribunal has an unfettered discretion to determine material it considers of relevance and the weight to attributed thereto, I do not accept that the mere absence of reference by the Tribunal to particular facts inevitably meant that the Tribunal had not had regard to them. I also make this observation in light of the oft-quoted principle that reasons for decision of administrative bodies are not to be construed minutely and finely with an eye keenly attuned to the perception of error (Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; Brennan CJ, Toohey, McHugh and Gummow JJ in Wu Shan Liang 185 CLR 259 at 272; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 at [59]; [2015] HCA 50 at [59]).
Other Allegations Made on Behalf of Applicant in the AS
There were a number of other allegations made in the AS supposedly in support of Ground 2 but going beyond the scope and Particulars to that Ground. I do not consider that they establish jurisdictional error and I deal with them below.
At [51] of the AS it was submitted that the Delegate was required to consider any non-refoulement obligations as well as consider as a primary consideration the best interests of any minor children that might be affected by the cancellation decision.
At [56] of the AS it is alleged that the Delegate failed to discharge her duties by not notifying the Applicant that she did not intend to consider the best interests of the child (presumably both children) as a primary consideration.
At [57] it is alleged that the Delegate had a duty to further enquire as to any impact that the visa cancellation would have on her unborn child and the 5-year-old daughter in Zimbabwe.
The legal bases and sources of these assertions are not expressly stated, but I infer and assume for present purposes that they are said to arise from Australia’s ratification of international treaties and from policy guidelines, including the CRC and the 1951 Convention relating to the Status of Refugees (Refugees Convention) and the Department of Immigration and Border Protection’s Procedures Advice Manual (PAM 3), thereby giving rise to a legitimate expectation that decision-makers will act in conformity with those treaties and that policy document, such being alleged in [46]-[47] of the AS where there is also a reference to Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 (Teoh).
I do not consider that any of these further arguments establish that the Delegate’s decision to cancel was infected with jurisdictional error. There was never the slightest suggestion by the Applicant at any point on 30 October 2016 that she had a reason to fear persecution, harm or threats of any kind in Zimbabwe. Her evidence to the Delegate in the Record of Interview was quite to the contrary. She informed the Delegate that she had a husband and child in Zimbabwe, that her husband was employed full-time and that she was also employed full-time in Zimbabwe, that she had other family in Zimbabwe, namely her older sister, and that her mother was usually resident in Zimbabwe but was also visiting friends or relatives in Australia. She confirmed that most of her husband’s family lived in Zimbabwe and that she had a support network back in Zimbabwe of people to help her with the baby during and after her pregnancy. After this information had been given, the Delegate then asked:
Delegate: Okay. Any other issues – any issues that you think I need to know about? Any questions I haven’t asked that you want to tell me something about?
Applicant: No.
In my view the Delegate gave the Applicant a real and reasonable opportunity to present the reasons why the Delegate should not cancel the Visitor visa. It was for the Applicant to advance whatever evidence or reasons not to cancel the visa that she wished to advance. As Graham J said in SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499 at [37] in connection with a decision of the Refugee Review Tribunal but in my view equally applicable to the Delegate’s decision in this case:
The Act does not require that the tribunal actively assist an applicant in putting his case nor does it require the tribunal to carry out an inquiry in order to identify what that case might be: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 ; 198 ALR 293 ; 75 ALD 151 ; [2003] FCAFC 126 at [36].
The Delegate enquired of the Applicant as to the circumstances of her born and unborn child and the Applicant responded. In my view no further enquiry was legally required of the Delegate.
Finally, it is not for me to consider whether Teoh remains good law, but it has clearly been wounded by Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 and the observations therein at [61]-[63] (per McHugh and Gummow JJ); [116]-[122] (per Hayne J); [140]-[148] (per Callinan J) and Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 658 [65] (per Gummow, Hayne, Crennan and Bell JJ) and Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 (WZARH) at 335 [30] (per Kiefel, Bell and Keane JJ)
Rather, I consider it sufficient to state that these further matters raised by the Applicant in the AS, in so far as they rely on the Applicant having a legitimate expectation that the Delegate act in a certain way, are generally precluded by the decision of the High Court in WZARH which held that the legitimate expectation of a person affected by an administrative decision does not provide a basis for determining the content of an obligation to accord procedural fairness.
PAM 3 comprises statements of policies for the guidance from the Minister to his or her delegates in making decisions under the Act which have the effect of promoting values of consistency and rationality in decision-making.
In so far as Ms Stratigos would argue that PAM 3 made Australia’s non-refoulement obligations or the best interests of children a mandatory consideration in the circumstances of this case, such argument does not succeed, for the reason given by Gray J in El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 at [45] as extracted below with approval in the decision of the Full Court of the Federal Court in COT15 v Minister for Immigration and Border Protection & Anor (No. 1) (2015) 236 FCR 148 (COT15) at [29]-[31] per North, Collier and Flick JJ:
In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 (2000) 61 ALD 641 at [28] – [29] and Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 at [15] – [16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account.
(emphasis added in COT15.)
Putting aside the status of the concept of “legitimate expectations” in Australian law, this argument cannot succeed in so far as the legitimate expectation is said to arise based on the CRC. This is because as discussed at [54]-[61] above, the CRC had no application in the circumstances of this case, and thus no legitimate expectation could have arisen to the effect that the best interests of the Zimbabwean resident 5-year-old child must be a primary consideration. In so far as this argument is based in addition or in the alternative on Australia’s ratification of the Refugees Convention it is precluded by the statement in COT15 at [38] to the following effect:
The subject matter, scope and purpose of the Act do not require the Tribunal to take into account as a mandatory consideration the non-refoulement obligations of Australia when determining whether to cancel a visa. The Act contemplates that those obligations will be considered in the context of a protection visa application.
Conclusion
In my view, the Applicant has failed to establish that the Delegate’s decision to cancel the Visitor visa was infected by jurisdictional error or procedural unfairness and the Application filed in this Court must be dismissed.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 6 June 2017
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