Dunn v Minister for Immigration and Citizenship

[2007] FCA 1745

FEDERAL COURT OF AUSTRALIA

Dunn v Minister for Immigration & Citizenship [2007] FCA 1745

DARRELL DUNN v MINISTER FOR IMMIGRATION & CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
VID 845 OF 2007

TRACEY J
19 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 845 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

DARRELL DUNN
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	19 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 845 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

DARRELL DUNN
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	19 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate on 21 August 2007 dismissing an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) on 29 January 2007 and handed down on 13 February 2007: see [2007] FMCA 1349. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to cancel the appellant’s Special Category (Temporary) (Class TY) visa under s 109 of the Migration Act 1958 (Cth) (“the Act”). The circumstances in which the visa came to be cancelled, the reasons of the Tribunal and those of the Federal Magistrate are set out in the Federal Magistrate’s decision.

2. The matter had been remitted to differently constituted Tribunals on two previous occasions from the Federal Magistrates Court.  The Tribunal’s decision on the last occasion is the subject of this appeal.

   BACKGROUND

3. The appellant is a citizen of New Zealand.  On arrival in Australia, on 18 October 2004, he was granted a Sub-class 444 visa.  However, at that time, the appellant did not disclose, on his passenger card, that he had prior criminal convictions, despite having 131 such convictions between 1987 and 2004 in New Zealand.  The appellant claimed that, because he was largely illiterate, he had sought the assistance of an Australian Customs Officer (“the Customs Officer”) when completing the card.  The appellant claimed that the Customs Officer had, amongst other things, crossed out the appellant’s original answer of ‘yes’ to the question of whether he had any criminal convictions and ticked ‘no’ on his behalf.

4. On 31 May 2005, the delegate sent the appellant a Notification of Cancellation under s 109 of the Act. The visa was subsequently cancelled on 2 June 2005 because the appellant had failed to disclose his prior convictions. Such disclosure required by ss 101, 102 of the Act. On 9 June 2005 the appellant sought review by the Tribunal of the decision to cancel his visa. On 1 July 2005, 10 January 2007 and 25 January 2007 the Tribunal sent the appellant invitations to comment on information that would be the reason, or a part of the reason, for affirming the decision that was under review. The appellant responded on 12 July 2005, 11 January 2007 and 29 January 2007, respectively.

   THE TRIBUNAL’S DECISION

5. The Tribunal identified, and took evidence from, the Customs Officer who had assisted the appellant with the passenger card.  Evidence from the Customs Officer was also sent to the appellant for comment in the letter dated 25 January 2007.  The Tribunal accepted that the Customs Officer had no recollection of the event, and, after considering the evidence, concluded that it was highly unlikely that the officer would have questioned the appellant about his criminal history and then, having ascertained that the appellant had a criminal history, changed the card to indicate that he had no criminal convictions.  The Tribunal did not accept that the officer amended the appellant’s passenger card without the appellant’s knowledge, consent or authorisation.

6. The Tribunal held that, under s 98 of the Act, the appellant was taken to have filled in the passenger card even if it had been completed on his behalf. After discussion of the relevant considerations in the exercise of its discretion, pursuant to reg 2.41 of the Migration Regulations 1994 (Cth) (“the Regulations”), the Tribunal concluded that it was appropriate to cancel the appellant’s visa on the ground that he had failed to disclose his criminal history thereby failing to comply with s 102 of the Act. This was because he provided incorrect answers on his passenger card.

   THE FEDERAL MAGISTRATE’S DECISION

7. Before the Federal Magistrate, the appellant relied on the following grounds:

   1.There was a denial of procedural fairness because he was not given an opportunity by the Tribunal to cross-examine the Customs Officer;

   2.The Tribunal displayed bias against the appellant because he did not have legal assistance;

   3.The Tribunal had failed to take into account the fact that the Customs Officer had not complied with Ministerial Instructions 368 and 383 when processing the appellant’s entry card; and

   4.The appellant was denied natural justice by the delegate.

8. The Federal Magistrate noted that, under s 366D of the Act, there was no entitlement to cross-examine any person providing evidence to the Tribunal. The Federal Magistrate could not identify anything in the Tribunal’s decision which might support a suggestion of bias. She found that the Tribunal had not failed to give proper consideration to all aspects of the appellant’s claims, including the conduct of the Customs Officer. Finally, her Honour held that the Tribunal hearing process provided the appellant natural justice and that this “cured” any want of natural justice which may have occurred before the delegate. She dismissed the application for judicial review.

   ON APPEAL

9. The appellant now appeals from the Federal Magistrate’s decision.  The appellant listed the following grounds of appeal:

   1.Negligence;

   2.Breach of statutory duties;

   3.Negligent misrepresentation at common law;

   4.Fraudulent misrepresentation in a tort action; and

   5.Duty of care.

   No particulars were provided.

10. On 9 October 2007, North J, ordered that the appeal be transferred to the NSW Registry of the Court.

11. Mr Dunn appeared in person at the hearing.  He told the Court that he had improved his capacity to read and write since he appeared before the Tribunal.

12. He sought to rely on the grounds appearing in his notice of appeal and on two additional grounds.  The additional grounds were that:

    ·The notice of cancellation had not been addressed to him personally and that, therefore, he had not received notice of the decision.  He relied on the Full Court’s decision in VEANof 2002 v Minister for Immigration and Multicultural Affairs (2003) 204 ALR 80.

    ·The Tribunal and the Federal Magistrate had different understandings of the Customs Officer’s evidence.

13. Counsel for the Minister submitted that none of the grounds relied on in the appeal to this Court would, if successful, have supported the granting of the relief sought.  Moreover the grounds had not been raised in the Federal Magistrate’s Court.  I accept these submissions.

14. The first additional ground on which the appellant sought to rely is not supported by the evidence.  The notice of cancellation of his visa was addressed to him at the Melbourne Assessment Prison where he was then incarcerated.  It contained advice that any application for review by the Tribunal had to be lodged within seven days.  A timely application was made by the appellant’s solicitor.  It may, therefore, readily be inferred that the notice was received by Mr Dunn.

15. The second additional ground does not identify a jurisdictional error.  In any event it is misconceived.  Both the Tribunal and the Federal Magistrate acted on the same understanding of the Customs Officer’s evidence.  So much is apparent from the fact that the Tribunal’s summary of that evidence is incorporated in the Federal Magistrate’s reasons for decision.

16. The appellant has not demonstrated any jurisdictional error on the part of the Tribunal or any appellable error on the part of the Federal Magistrate.

17. The appeal should be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey .

Associate:

Dated:        19 November 2007

Appellant appeared in person
Counsel for the Respondent:	Mr G Johnson
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	19 November 2007
Date of Judgment:	19 November 2007