Dy v Minister for Immigration and Multicultural
[2006] FCA 676
•3 MAY 2006
FEDERAL COURT OF AUSTRALIA
Dy v Minister for Immigration and Multicultural
Affairs [2006] FCA 676LIN DY & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR
VID 153 OF 2006
NORTH J
3 MAY 2006
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 153 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
LIN DY
FIRST APPELLANTTHIDA CHIM
SECOND APPELLANTRACHANA CHIM
THIRD APPELLANTVEASNA CHIM
FOURTH APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENTMIGRATION REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
NORTH J
DATE OF ORDER:
3 MAY 2006
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The name of the first respondent be amended by deleting the words “and Indigenous”.
2.The appeal is dismissed.
3.The first appellant pay the first respondent’s costs of the appeal.
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 153 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
LIN DY
FIRST APPELLANTTHIDA CHIM
SECOND APPELLANTRACHANA CHIM
THIRD APPELLANTVEASNA CHIM
FOURTH APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENTMIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
NORTH J
DATE:
3 MAY 2006
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Before the Court is an appeal against a decision of Federal Magistrate McInnis given on 31 January 2006. In that decision, his Honour dismissed an application for review of a decision of the Migration Review Tribunal (the Tribunal) of 31 August 2004. The Tribunal affirmed a decision of the delegate of the Minister for Immigration and Multicultural Affairs (the first respondent) to cancel the General (Residence) (Class AS) subclass 801 visa held by the appellant.
BACKGROUND
The first appellant was born in Cambodia on 25 October 1947. As the outcome of the appeals of the second, third and fourth appellants, who are children of the first appellant, depends on the circumstances of the first appellant, she will be referred to in the reasons as the appellant. On 28 January 1998, she applied for a visa on the basis of her marriage to Wawang Wiharno, an Australian citizen. Question 18 on the visa application form asked - Have you previously been married or been in a de facto/common law marriage? The appellant ticked the box marked Yes.
Question 18 then asked for further details which the appellant supplied. The question then asked - How did it end (divorce, etc.)? The appellant answered by writing the word – Deceased beside the question.
In support of her visa application, the appellant also provided a copy of a death certificate for Chim Sothy, her husband. She also provided birth certificates for each of her four children. Each of the birth certificates recorded that the father of the children, Chim Sothy, was deceased.
In April 1999, the appellant’s husband unexpectedly turned up at the children’s place of residence in Cambodia. At that time, the appellant was living in Australia.
On 18 January 2001, the appellant was granted a sub class 820 temporary spouse visa and on 15 December 2001, was granted a sub class 801 permanent spouse visa, as were three of her children.
On 5 January 2004, the Department of Immigration and Multicultural and Indigenous Affairs (the department) sent the appellant a notice of intention to consider cancellation of her visa (the notice) pursuant to s 109 of the Migration Act 1958 (Cth) (the Act) on the basis that she may not have complied with ss 101, 103 and 104 of the Act. The notice indicated that the department had made some investigations of the appellant’s husband’s whereabouts in the period from 2000 to 2003. The notice summarised the appellant’s alleged breaches of the Act as follows:
You have breached s 101 of the Act by providing incorrect information about your marital status.
You have breached s 103 of the Act by providing bogus documents including a false death certificate for Mr Chim and false birth certificates for your children.
You have breached s 104 of the Act by not informing the Department of the change in your circumstances when you became aware that Mr Chim was alive.
On 25 February 2004, the appellant’s visa was cancelled, under s 109 of the Act. By operation of the Act, the visas of the second, third and fourth appellants were also cancelled as a consequence of the cancellation of their mother’s visa.
The evidence which was before the Tribunal is set out comprehensively in paragraphs 10 to 68 of the decision of the Tribunal. It is not necessary to repeat the detail of the evidence before the Tribunal.
RELEVANT STATUTORY PROVISIONS
The provisions of the Act relevant to this appeal are as follows:
101 Visa applications to be correct
A non‑citizen must fill in his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given.
103 Bogus documents not to be given
A non‑citizen must not give an officer, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given.
97 Interpretation
In this Subdivision:
"bogus document" , in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
104 Changes in circumstances to be notified
(1) If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2) If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3) If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4) Subsection (1) applies despite the grant of any visa.
100 Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave the answer or caused the answer to be given did not know that it was incorrect.
111 Cancellation provisions apply whether or not non-compliance deliberate
To avoid doubt, sections 107, 108 and 109 apply whether the non‑compliance was deliberate or inadvertent.
108 Decision about non-compliance
The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non‑compliance by the visa holder in the way described in the notice.
109 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.
Circumstances have been prescribed for the purpose of s 109 (1)(c) by regulation 2.41 of the Migration Regulations 1994 (Cth) (the Regulations) as follows:
Regulation 2.41 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) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine 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.
THE DECISION OF THE TRIBUNAL
The Tribunal concluded that there had been non-compliance in the way described in the notice. First, there was non-compliance with s 101, in that the appellant had incorrectly answered that her husband was deceased. Indeed, before the Tribunal, it was not in dispute that the appellant’s husband was still alive.
The circumstances in which the appellant had come to say in her application that her husband had died were described in detail in the decision of the Tribunal. It is not necessary to refer to those circumstances for the purposes of this judgment. Sections 100 and 111 provide that whether the appellant believed that her husband was dead as she answered, is not relevant to the question of non-compliance with s 101. The Tribunal also found non-compliance with s 103, in that the death certificate was issued on the basis of the false information that the appellant’s husband was dead. Finally, the Tribunal found non-compliance with s 104 on the basis that the appellant failed to advise the delegate that her husband was alive during the period between the filing of the application for a visa and the grant of the visa. The facts constituting this non-compliance were also not in dispute. The appellant discovered the existence of her husband in April 1999 whilst the visa in question was first granted on 18 January 2001.
The Tribunal then considered each of the prescribed circumstances in reg 2.41 separately and, finally, took into account some other considerations which it considered relevant. It concluded that, having regard to all of the circumstances, it was appropriate to cancel the appellant’s visa.
THE JUDGMENT OF THE FEDERAL MAGISTRATE
By an amended application dated 21 February 2006, the appellant sought review of the decision of the Tribunal in the Federal Magistrate’s Court. By an interlocutory application filed on 21 March 2005, the appellant sought a declaration that the first respondent deliver the notes of evidence of the hearing recorded by the Tribunal member.
The Federal Magistrate refused the interlocutory application on 23 March 2005, and gave reasons later in the judgment which determined the review application. The Federal Magistrate refused the interlocutory application on two grounds. First he held that there were authorities which held that the Tribunal member had immunity from producing records which would disclose a decision-making process.
Second, he held that there would be no practical benefit to the appellant by the production of these records because there was no controversy at the hearing about the fact that the appellant’s husband was alive. Consequently, there could be no controversy over whether there had been non-compliance as alleged.
In relation to the review application, the Federal Magistrate essentially dealt with three arguments. The first argument was that the Tribunal decision was vitiated by actual bias. The appellant contended that she was not able to proceed with this application without the production of the Tribunal's notes. The Federal Magistrate found that there was no evidence of actual bias and this conclusion would have been the same regardless of the outcome of the interlocutory application.
Second, the Federal Magistrate dealt with an argument which seemed to be that there was no non-compliance with ss 101, 102, 103, and 104 where the visa applicant believed in the truth of the answer at the time it was given. The Federal Magistrate rejected this argument on the clear language of s 100, which provides that an answer to a question is incorrect even though the person who gave the answer did not know that it was incorrect.
Finally, the Federal Magistrate rejected the argument that the Tribunal failed to properly interpret and apply s 104. The appellant had challenged the conclusion that there had been changes in circumstances for the appellant in the manner required by that section.
CONSIDERATION OF THE ARGUMENT ON APPEAL
The appellant filed a notice of appeal from the decision of the Federal Magistrate on 20 February 2006, purporting to appeal against the decisions of both the interlocutory application and the review application. Grounds two to six concern the interlocutory application and grounds seven to ten, the decision on the review application.
The first respondent filed a notice of objection to competency in relation to grounds two to six of the appeal on the basis that leave to appeal was required in relation to an interlocutory ruling and such leave had not been obtained. Accepting this position, counsel for the appellant applied for an extension of time within which to apply for leave to appeal. That application was not opposed.
Counsel for the appellant accepted that in order to obtain leave to appeal, he needed to demonstrate, first, that there was sufficient doubt about the correctness of the decision to warrant consideration by the appellate court. Second, the appellant needed to demonstrate that there would be injustice if the order were allowed to stand. In the course of argument, the Court indicated that it would be highly unlikely that the application for leave would succeed where, as was the case, the solicitor for the appellant had been present during the hearing, and there had been no explanation for the inability of the solicitor to provide an account of what happened in the Tribunal.
Further, even if there were doubt about the correctness of the decision of the Federal Magistrate and the appellate court were asked to exercise its own discretion, the application did not demonstrate any proper foundation for such discretion to be exercised. The reasons for decision of the Tribunal appear to set out the evidence which was given at the hearing. On the basis of this discussion, counsel for the appellant did not persist with his application for leave to appeal. In my view, such a course was well-advised. Nonetheless, I should indicate that the Federal Magistrate was, in my view, in error in one respect, namely, in characterising the application as seeking disclosure of the process of decision making of the Tribunal. It was clear on the face of the application that it related only to production of any record of evidence given.
In relation to the review application, the Court called upon counsel for the appellant to indicate precisely the scope of the arguments which were to be advanced under grounds 7 to 10 of the notice of appeal. It became apparent in the course of this discussion that the notice of appeal did not adequately set-out the arguments which counsel for the appellant sought to agitate.
Similarly, when the Court took counsel for the appellant to the written submissions filed by the appellant, it was apparent that the submissions also were not adequate to describe the arguments which were really in contention. This is a most regrettable situation. The purpose of the notice of appeal and of the written submissions is to both notify the other side and to allow the Court to understand what arguments are to be put prior to the hearing. Ultimately, as far as I can understand them, the arguments which were advanced on the appeal were as follows.
The first argument seemed to relate to the fact that the departmental investigation referred to in the notice covered the period from 2000 to 2003. The visa was first granted in January 2001. It seemed that counsel for the appellant contended that the power to cancel a visa could not arise in relation to a non-compliance known to the department at the time when the visa was granted. If this was the argument then it is answered by the decision of the Full Court in Minister for Immigration & Multicultural Affairs v Jalal (2000) 102 FCR 63 at [18] and [19], where it was held that the power to cancel for non-compliance remains even if the department knows of the non-compliance at the time of grant of the visa. This argument was not raised before the Federal Magistrate. I would refuse leave to raise it now on the basis that it was bound to fail.
Counsel for the appellant sought to argue yet another point which was not included in the notice of appeal or in the written submissions, or raised before the Federal Magistrate. Again, this is a regrettable situation. As best I can understand this argument, it relied on the words - … non-compliance by the visa holder in the way described in the notice in s108(b).
The non-compliance required by these words before a visa can be cancelled, is non-compliance described in the notice served in relation to s 109. It was submitted that the notice alleged that the incorrect answer constituting the non-compliance was that the appellant was a married person. Therefore, the Tribunal erred by not determining whether the appellant was in fact married or whether, under Cambodian law in the circumstances at the time, she was in fact not married. The argument is confused. The notice alleges a breach not in relation to the answer to the question whether the appellant had been married or not married, but ...by providing incorrect information about your marital status. It was clear from the notice that the incorrect statement constituting the alleged non-compliance with s 101, related to the death of the appellant’s husband. This argument is bound to fail. Leave to rely on this ground at this stage of the process is refused.
The final argument, as I understood the muddled course which the argument followed, concerned [108] of the decision of the Tribunal which stated:
While it is immaterial at law whether non-compliance is deliberate or inadvertent, the Tribunal would give favourable consideration to an inadvertent non-compliance in exercising its discretion. The Tribunal takes into consideration the matters discussed in paragraph 91. (sic) The Tribunal takes into consideration that there are no photographs of the funeral. The Tribunal takes into consideration that review applicant’s information that while her spouse was suddenly presumed dead in November 1997 in uncertain circumstances, she left her children, some of whom were minors, to visit Australia. The Tribunal takes into consideration that the review applicant is an intelligent and educated person who on the information before the Tribunal immediately accepted the presumed death of her spouse without further investigation. After considering the totality of the information before it, the Tribunal is not satisfied that the review applicant’s non-compliance has been inadvertent.
Again, this argument was not raised before the Federal Magistrate, not included in the notice of appeal, and not foreshadowed in the written submissions. Consequently, the appellant requires leave to raise the ground on appeal.
It was contended that the Tribunal’s view that the non-compliance was not inadvertent pervaded the whole of the consideration of the prescribed circumstances under reg 2.41. It was argued that whilst the advertence was not an irrelevant matter, it needed to be separately balanced with each of the other considerations under reg 2.41 and other relevant considerations separately. By adopting this approach, it was submitted, the Tribunal failed to act in accordance with the requirements of the Act and the Regulations. This argument has no basis whatsoever. The terms of the Tribunal’s decision do not demonstrate the alleged wrong approach. In any event, it is doubtful that such approach would amount to jurisdictional error. Again leave is refused for this ground to be argued on appeal.
The appeal must be dismissed with costs.
I certify that the preceding thirty two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 3 May 2006
Counsel for the Applicant: Mr T Fernandez Solicitor for the Applicant: Nathan Legal Practitioner Counsel for the Respondent: Mr W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3 May 2006 Date of Judgment: 3 May 2006
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