Dy v Minister for Immigration and Multicultural

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FEDERAL COURT OF AUSTRALIA

Dy v Minister for Immigration and Multicultural
Affairs [2006] FCA 676

LIN 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 APPELLANT

THIDA CHIM
SECOND APPELLANT

RACHANA CHIM
THIRD APPELLANT

VEASNA CHIM
FOURTH APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL  AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

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 APPELLANT

THIDA CHIM
SECOND APPELLANT

RACHANA CHIM
THIRD APPELLANT

VEASNA CHIM
FOURTH APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL  AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

NORTH J

DATE:

3 MAY 2006

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. 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

  2. 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.

  3. 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. 

  4. 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…

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Details
Case
[2006] FCA 676
Decision Date

CaseChat Overview and Summary

The case of Dy v Minister for Immigration and Multicultural involves an appeal against a decision made by Federal Magistrate McInnis on 31 January 2006, which dismissed an application for review of a decision by the Migration Review Tribunal (the Tribunal) affirming the cancellation of the General (Residence) (Class AS) subclass 801 visa held by the appellant, a Cambodian national who had applied for a visa on the basis of her marriage to an Australian citizen. The Tribunal's decision was based on the appellant's alleged breaches of the Migration Act 1958 (Cth) by providing incorrect information about her marital status, providing false documents, and failing to inform the Department of changes in her circumstances. The appellant's visa cancellation also affected her children, who held dependent visas. The primary legal issues were whether there was actual bias in the Tribunal's decision-making process, whether the appellant's belief in the truth of her answers at the time they were given could negate non-compliance, and whether the Tribunal correctly interpreted and applied the relevant sections of the Act. The Federal Magistrate rejected these arguments, and the appellant subsequently appealed to the court.

The court considered the appeal, noting that the appellant's grounds of appeal were not clearly set out in the notice of appeal or written submissions. The court emphasised the importance of clear and concise arguments in legal proceedings to ensure proper notification and understanding by all parties involved. The court further indicated that leave to appeal would only be granted if there was sufficient doubt about the correctness of the decision and potential injustice if the order were allowed to stand. However, the court found that the appellant's arguments did not provide a proper foundation for exercising discretion in favour of granting leave to appeal. The court dismissed the appeal and ordered that the appellant pay the first respondent's costs of the appeal. Additionally, the court noted that the Federal Magistrate's characterisation of the application as seeking disclosure of the Tribunal's decision-making process was incorrect, as the application was actually seeking production of any record of evidence given during the hearing.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NORTH J
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.

Ratio Decidendi

Legal Principle Established

Established by: NORTH J

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.