Elhamid v Minister for Immigration (No.2)
[2012] FMCA 740
•27 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ELHAMID v MINISTER FOR IMMIGRATION (No.2) | [2012] FMCA 740 |
| MIGRATION – Review of an offshore delegate’s decision – cancellation of a Spouse (Migrant) (Applicant Offshore) (BC100) visa under Subdivision F of Part 2, Division 3 of the Migration Act 1958 (Cth) – no reviewable error – application dismissed. |
| Federal Court of Australia Act1976 (Cth), s.61 Migration Amendment Regulations 2009 (No.7) (Cth) |
| Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 Cheaib v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 308 Chhuon v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 198 ALR 500 Elhamid v Minister for Immigration and Citizenship (No. 1) [2011] FMCA 386 Harrington v Andrews, Minister for Immigration and Citizenship (2007) 97 ALD 96 Hu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 63 Kelly v Temple [2011] FMCAfam 683 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 Noeung v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 125 FCR 503 Paul v Minister for Immigration and Multicultural Affairs(2001) 113 FCR 396 Re Minister for Immigration and Multicultural Affairs; Ex Parte MIAH (2001) 206 CLR 57 Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 Sagar v O’Sullivan (2011) 193 FCR 311 Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 Singh v Minister for Immigration [2006] FMCA 1163 SZFDZ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 482 Tickner and Ors v Chapman and Ors (1995) 57 FCR 451 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 |
| Applicant: | MOHAMAD YASIN ABRAHIM ABD ELHAMID |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 138 of 2011 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 1 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Godwin |
| Counsel for the Respondent: | Ms R. Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Amended Application filed on 20 May 2011 is dismissed.
The Applicant is to pay the Respondent’s costs and disbursements of and incidental to the Application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 138 of 2011
| MOHAMAD YASIN ABRAHIM ABD ELHAMID |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the court orders made on 22 February 2011, the solicitors for the Respondent were required to file a bound volume which was to be indexed, labelled and paginated containing all the documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”). On the date of the hearing the Court Book was marked Exhibit “A”. I refer to my earlier judgment in this matter (Elhamid v Minister for Immigration (No.1) [2011] FMCA 386) which dealt with a claim of Public Interest Immunity. In that judgment I set out the background of this matter as follows:
2. The Applicant is a citizen of Egypt who arrived in Australia in 2004 and married an Australian citizen in Australia in 2006. They honeymooned in Egypt from 16 October 2006 for four months. The Applicant applied for a spouse visa on 29 October 2006. The Applicant’s wife returned to Australia in February 2007. The Applicant did not take up residence in Australia until 19 June 2007. The couple initially lived with the wife’s mother until 19 November 2007 when the couple moved to their own accommodation. The Applicant obtained a job at “Kleen Heat Gas” while the wife did not gain employment until 18 July 2010.
3. On 18 August 2009 the couple moved to a more suitable residence. The Applicant wife had adult children from a previous marriage. One of those children moved into the couple’s house on 25 June 2010. On 10 August 2010 the Applicant was granted a Spouse (Migrant) (Applicant Onshore) (BC100) Visa. On 23 October 2010, the Applicant returned to Egypt to see his family. His wife did not accompany him as she had only recently started her new job. He had a return ticket to Australia for a flight departing Egypt on 3 December 2010. On 2 December 2010 the Applicant was contacted by the Australian Embassy in Egypt and invited to come to an interview. He was told that he had to attend immediately as his flight was departing the following day. The Applicant attended an interview on 2 December 2010, conducted by Mary Antoniou [sic], the Minister’s Delegate.
4. At the end of that interview the Delegate informed the Applicant that his visa had been cancelled under s.128 of the Migration Act 1958. The Delegate then handed the Applicant a letter dated 2 December 2010 advising him that his visa had been cancelled because:
“you were not in an ongoing relationship with your sponsor at the time of granting your visa and failed to notify the department of your change of circumstances” (CB 9)
5. The letter notified him that he had until 30 December 2010 to show why the ground of cancellation did not exist and/or to give reasons whey the visa should not have been cancelled. Attached to the letter was a “decision record” of the visa cancellation under s.128 of the Migration Act 1958.
In relation to the claim of public interest immunity over four statutory declarations provided in this matter, I have formed the following view:
30.… for an abundance of caution the document should not be released and the Application for public interest immunity should be granted. This decision is not to be taken as any form of criticism of Mr Godwin who requested access on a confidential basis for his review only and no reference to his client or parties facilitating his brief. There is material within the evidence before the Court that does provide the basis for drawing an inference as to the identity of the informant as referred to by the Minister’s Delegate Mary Antoniou [sic] in Egypt on 2 December 2010. This cannot be avoided but does not detract from the gravity of the public interest immunity claim.
The present proceedings commenced by the Applicant move on the Applicant’s Amended Application filed on 20 May 2011 seeking judicial review of the decision of Mary Antoniou, a Delegate of the Minister for Immigration and Citizenship who holds the office of Senior Migration Officer in the Australian Embassy in Cairo, Egypt.
The Applicant was originally granted a Temporary Spouse visa which was lodged on 29 October 2006. He was subsequently granted a Spouse (Migrant)(Application Offshore)(BC100) visa which he was notified on 10 August 2010. A provision of the visa was that it provided a return facility which allowed him to travel in and out of Australia as a permanent resident for a period of five years from the date of the visa grant.
Ground 1
Ground One of the Amended Application the Applicant seeks the following:
1. The Decision of the respondent on 2 December 2010 made under s.128 of the Act to cancel the applicant’s visa was affected by jurisdictional error as:
(a) The decision maker failed to take into account all the matters relevant to whether it was appropriate to cancel the applicant’s visa. In particular, the delegate failed to consider the merits of cancellation under any other division other than subdivision F.
(b) The decision maker took into account an irrelevant consideration that the applicant would seek to enjoy the rights available to any holder of a permanent resident visa if he returned to Australia.
Applicant’s Submissions on Ground 1
Mr Godwin, appearing for the Applicant, referred the Court to the decision in Singh & Anor v Minister for Immigration & Anor [2006] FMCA 1163 per Driver FM which sets out the statutory scheme that is also applicable to the matter before this Court. That decision was handed down on 27 October 2006 with the statutory scheme set out at [28]-[54]. A review of those provisions of the Act reveal that no legislative changes have occurred. As [28]-[54] of the decision in Singh (supra) is an accurate and convenient reproduction of the relevant sections being ss.97-131 of the Migration Act 1958 (Cth) (“the Migration Act”) at the time of the matter before the Court I do not believe that it is necessary to reproduce those sections again in this decision.
Mr Godwin, in his written submissions, submits that as a matter of general importance it needs to be appreciated that the cancellation decision in this case was based upon the assertion that the Applicant failed to notify the Department of a change of circumstance in his visa application before his visa was granted. This failure was said to have contravened s.104 of the Migration Act, and in turn, this is said to have enlivened s.116(d) and s.128 of the Migration Act. If the Applicant was in Australia this ground could also have been the basis of cancellation under subsection C. Section 128 of the Migration Act only enables a visa to be cancelled where the delegate is satisfied that it is appropriate to cancel it in accordance with Subdivision F. Even if the delegate considers that it would be appropriate to cancel the visa there remains a discretion not to do so having regard to the circumstances of the case generally: Hu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 63 at [16].
The framework of Subdivision C of Division 3 – Visas For Non Citizens of Part 2 – Control of Arrival and Presence of Non-Citizens in which s.107 generally works is that a notice can be issued to a person in Australia in respect to the matters set out in ss.101, 102, 103, 104 or 105 that happened before their visa was granted. If a notice is issued there are a series of things that the delegate has to give to the person who holds the visa informing them as to what the matter is that they are said not to have done properly before they got their visa, and providing them information as to how they are to respond. At the time that a notice is given to the visa holder, their visa remains in force. When given the notice they are told “You can respond to it within a nominated period of time.” Then, under s.108 the Minister is to make a decision whether there has been non-compliance, considering those matters before the visa was granted. Under s.109 if there has been non-compliance and all matters contained in the response to the s.107 notice have been considered, then the Minister can cancel a visa. That cancellation power is not limited to temporary visas, as it also applied to permanent visas. The framework of Subdivision D contains another cancellation power in s.116. The focus of this cancellation power is what happened after the visa was granted. In s.116(1)(a):
…any circumstances which permitted the grant of the visa no longer exist; or
In effect it is something that has happened since the grant of the visa that would have, had it happened before the grant of the visa, meant that the visa could not have been granted. In s.116(1)(b);
…its holder has not complied with a condition of the visa; or
In s.116(1)(d) being the one that was identified by the Delegate in this case:
…if its holder has not entered Australia or has entered but has not been immigration cleared – it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
Mr Godwin contends that the circumstances of the Applicant’s case are confusing because he had been in Australia beforehand. On reading s.116(1) in its plain terms it would not appear to apply to the Applicant in this case because he has entered Australia and been immigration cleared beforehand. However, a Full Court has subsequently held that; because the definition of “enter” incorporates “re-entry”, it does actually apply to an Australian – someone who has previously entered, as long as they are outside of Australia: Cheaib v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 379 per Lockhart, O’Loughlin and Merkel JJ. Mr Godwin submits that the balance of s.116 either does not apply to this case or is procedural in nature.
Section 117(2) of the Migration Act provides for a permanent visa, being the relevant status of the Applicant’s visa, states:
(2) A permanent visa cannot be cancelled under section 116 if the holder of the visa:
(a) is in the migration zone; and
(b) was immigration cleared on last entering Australia.
Mr Godwin argues that if the Applicant had come back to Australia with his permanent visa, then there was no power under s.116 to cancel his visa.
Subdivision F of Part 2, Division 3 contains s.128, which is the first of the critical sections under which the decision was made in this case, states:
If:
(a) the Minister is satisfied that:
(i) there is a ground for cancelling a visa under section 116; and
(ii) it is appropriate to cancel in accordance with Subdivision; and
(b) the non-citizen is outside Australia
the Minister may, without notice to the holder of the visa, cancel the visa.
Mr Godwin referred to what happened in Singh’s case, in that there was a long series of applications by the two sisters to come to Australia from Fiji. In the end after numerous actions in this Court and the Tribunal, they eventually were granted the visas, and then the Minister discovered that there was information within the papers that showed that the applicants had been engaged, and that they had not be been declaring this in the course of their respective visa applications. The delegate of the Minister stated:
I consider that there are grounds for cancellation under s.109 of the Migration Act. Ms Singh has made a false declaration on her application for visa to Australia. Ms Singh had declared that there was no material change in her circumstances when it is clear that she had been engaged.
The path followed by the Minister’s delegate in Singh was under s.128 where there has to be a ground under s.116(d). So under s.116(d) if the provisions in Subdivision C are met, which includes s.109 and if one of the pre-granted visa reasons for cancellation are met, then cancellation under s.116(d) can occur. Consequently, in the matter before this Court the pre-granted visa reason in s.101 - failure to inform the Department of that matter before the grant of the visa – was applied. At [13(c)] in Singh it stated:
The delegate also gives reasons why she decided to cancel the applicants’ visas without notice under s.128. Specifically the delegate states in identical terms in each case:
The Department’s movement records show that the applicant is correctly outside Australia. I am concerned that there is a possibility that the applicant may attempt to enter Australia if she was given prior notice of any cancellation.
Mr Godwin submits that it was that reasoning that his Honour Driver FM found the delegates decision in Singh to be in error.
Mr Godwin submits that in this case the Delegate indicated that “The reasons I consider it appropriate to cancel without notification under section 128 as there is a likelihood you may travel to Australia and seek to remain there permanently” (CB 11). In Singh (supra) the delegate’s decision being reviewed reasoned that it was appropriate to cancel the visa as at [13] “[The delegate is] concerned that there is a possibility the applicant may attempt to enter Australia if she was given prior notice of any cancellation”.
In Singh (supra), his Honour Driver FM found jurisdictional error at [99]-[103]:
99. Section 128 of the Migration Act, when read with s 118, confers a broad discretion to cancel unfettered by the constraints otherwise imposed upon cancellation decisions by subdivisions of the Act other than subdivision F. The discretion to cancel or not to cancel is available even in circumstances where cancellation would otherwise be mandatory. Further, the opportunity to cancel a visa under subdivision F does not exclude the possibility that it would also be appropriate to cancel under a different subdivision. The obligation under s 128(a)(ii) is to reach a state of satisfaction that the exercise of the broad and draconian power of cancellation so conferred is “appropriate”. It would be an invalid exercise of the power to limit one’s consideration to the fact that the visa holder is outside Australia. That is a separate and necessary criterion for the exercise of the power pursuant to s 128(b). It would be relevant to consider the possibility that the visa holder might seek to re-enter Australia but a proper consideration of that issue necessitates a consideration of the consequence of that possibility occurring. If the relevant ground relied upon was, for example, the ground in s 116(1)(e) the consequence of a visa holder entering Australia would be obvious. In other cases the consequence may not be obvious and may require express consideration.
100. In my view, it would not be “appropriate” to cancel under subdivision F if it would be more “appropriate” to cancel under subdivision C or subdivision D. There was no consideration of the relative merits of cancellation under any division other than subdivision F. Moreover, although the delegate stated that she was “concerned” that there was a possibility that the applicants might attempt to enter Australia if they were given prior notice of any cancellation she did not explain why she was concerned. What harm would result from the applicants’ re-entering Australia? The delegate’s decision is silent. It surely could not be a sufficient basis for the delegate’s concern that the applicants would seek to enjoy the rights available to any holder of a permanent resident visa. Indeed, that right is, in my view, protected by Art 12 of the International Covenant on Civil and Political Rights which provides:
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.
101. The answer must, in my view, lie in the operation of s 117(2) and s 128. If the applicants had been given notice of an intention to cancel and as a result entered Australia lawfully, cancellation would have become impossible under s 116. However, that would not of itself have affected the power to cancel under s 128 as that power is, as I have already noted, is unaffected by the limitations on the power conferred under s 116. The first delegate’s concern is only explicable (in the absence of any evidence of any concern relating to the applicants themselves should they enter Australia) as a concern that giving notice (as would be required if the cancellation procedure under subdivision C was followed) would probably result in the loss of the ability to cancel without notice under s 128, which relevantly depended upon the availability of a ground of cancellation under s 116 and the absence of the applicants from Australia. The delegate’s concern must have been that the presence of the applicants in Australia would render unavailable both the power of cancellation under s 116 (because of the operation of s 117(2)) and under s 128 (because of the requirement in s 128(b) that the non citizen be outside Australia.
102. If those were the only available powers of cancellation then the applicants could have no cause for complaint. It would be “appropriate” to exercise the power under s 128 if it appeared likely that otherwise there would not no power to cancel at all. But if the applicants had entered Australia the power of cancellation under subdivision C would have remained available It could not be “appropriate” to cancel a visa without notice if (as appears here) the only consequence of a failure to do so is that the non citizen would be able to enjoy procedural protections Parliament has afforded, and a right enjoyed under international law. There must be some other reason for the exercise of the power that undoubtedly exists, if it is not to be seen to be exercised capriciously and arbitrarily.
103. Seen in this light, it is probably open to me to conclude that the decision of the delegate was perverse, illogical and unreasonable in the Wednesbury sense. But it is unnecessary for me to reach such a dramatic conclusion. The first delegate was exercising a discretionary power. The power had to be exercised lawfully. It is well established that a decision maker will fall into jurisdictional error if he or she fails to give any meaningful consideration to something that the decision maker is bound to consider: NAJT v Minister for Immigration [2005] FCAFC 134 at [212]. The delegate was bound to consider whether the exercise of power was “appropriate”. That consideration, in the context of this case, where the applicants presented no apparent risk should they have re-entered Australia, was manifestly inadequate. That establishes jurisdictional error.
Mr Godwin submits that as the statutory provisions relied upon in Singh (supra) are identical to those utilised by the Delegate in this matter, the reasoning of his Honour Driver FM is directly applicable. It is not “appropriate” to cancel the applicant’s visa outside Australia to prevent him enjoying procedural protection Parliament has afforded, and the right to enjoy under international law. The Delegate’s consideration of the appropriateness of the cancellation was manifestly inadequate.
Mr Godwin argues that for a holder of a permanent visa (that is what happened in Singh as they were holders of permanent visas) one cannot use s.116 when the holder comes back to Australia. Rather, s.128 should be used while they are out of Australia except s.116 is being applied via Subdivision D. The reason why his Honour Driver FM thought that reliance on Subdivision D was not in those circumstances sufficient was that the use of Subdivision D meant that the visa could have been cancelled under Subdivision C, because that subdivision applies both to temporary and permanent visas. The Minister has the power when the permanent visa holder comes back to Australia to cancel under s.109. This is a critical difference if the s.116(d) power to cancel is used under s.128. The power is being exercised using a reason to cancel the visa that could also be used in Australia to cancel a visa. The difference being that if it is done overseas no notice is given as the visa cancellation is immediate. If it is done in Australia notice is given with time to seek professional advice about the notice to cancel.
Mr Godwin submits that in circumstances where a person’s ability to exercise their rights is far less constrained than it would be if located offshore without access to advice. In Singh his Honour, Driver FM, found that the visa applicant should have had the chance to get advice and make submissions before the cancellation. His Honour held that it was not an adequate or proper assessment by the delegate of the appropriateness of cancellation simply to say that they were concerned with the possibility that the applicant may attempt to enter Australia if she (Ms Singh) was given prior notice of any cancellation. The real concern of the delegate was once she was in Australia with a permanent visa s.116 was no longer applicable and there was no cancellation power. However this issue does not apply where s.116(d) is used because there is still a cancellation power under s.109 so to simply focus on preventing a person from coming back to Australia implicitly to exercise that right that is given under s.109 if that is how it is to be cancelled that is not a lawful assessment of the appropriateness of cancellation.
Mr Godwin referred to the matter before this Court and to the “Decision Record of Visa Cancellation Under Section 128 of the Migration Act 1985 – Part C Grounds For Cancellation” (CB 11) where it states:
[“Subparagraph 128(a)(i) of the Act”]
The reason I consider it appropriate to cancel without notice under section 128 as there is a likelihood you may travel to Australia and seek to remain there permanently.
Mr Godwin argues that in no material sense is that different to what the delegate said in Singh. In the matter before the Court where the Applicant is a holder of a permanent visa and what is being said by the Delegate is that they are trying to prevent the Applicant coming back to Australia to reside permanently as their visa entitles them. Mr Godwin contends that this is exactly the same difficulty as the delegate fell into in Singh because the Applicant is going to want to come back to Australia to exercise his rights to respond in accordance with a s.107 notice prior to cancellation. This has the same defect as the delegate decision in Singh in that they chose to rely on s116(d). Even though the Applicant has a permanent visa, that visa could still be cancelled in Australia under s.109.
Mr Godwin referred to Departmental letter (CB 9) where it states:
I wish to advise that your subclass BC100 Visa granted on 10 August 2010 was cancelled on 2 December 2010 under section 128 of the Migration Act 1958 (“the Act”) because you were not in an ongoing relationship with your sponsor at the time of the grant of your visa and failed to notify the Department of your change in circumstance.
Mr Godwin claims this is why the decision fails particularly in respect to s.104. However, if the spousal relationship had ended before the grant of the visa and had not recommenced subsequently, then s.116(1)(a) could have been used as the circumstances that permitted the grant of the visa no longer existed, but the Delegate chose to use the pre-visa circumstances, and thereby the situation whereby there would be a power to cancel in Australia. Had the Delegate chosen the post-visa circumstances in s.116(1)(a) then there would have been no power to cancel in Australia, and the decision to simply prevent the Applicant getting back to Australia to exercise his rights as a permanent resident would make sense but not where s.116(1)(d) was being used.
Respondent’s Submissions on Ground 1
Ms Francois, in her written submissions, indicates that the Applicant alleges that the Delegate failed to give meaningful consideration as to whether the use of the power under s.128 of the Act was appropriate: Singh at [103]. Unlike Singh, the material upon which the Delegate relied has not been reproduced to this Court due to the initial non-disclosure decision and the subsequent public interest immunity: (CB Index No. 6). In addition, unlike Singh, the reason given by this Delegate was that “there was a likelihood [the Applicant] may travel to Australia and seek to remain there permanently” (CB 11).
Ms Francois submits that the paucity of the material relied upon by the delegate in Singh clearly influenced his Honour Driver FM (see [1], [110] and the statement at [103]) that the consideration given was “manifestly inadequate”. In this case the confidential information available to the Delegate demonstrates that the Applicant had obtained his visa by a deliberate fraud designed to enable him to reside permanently in Australia. Contrary to the assertion of the Applicant, there is no basis to infer that the Delegate was acting to frustrate the Applicant’s rights in Australia. Rather, the circumstances indicate that the Delegate was acting to prevent the Applicant’s achievement of a fraudulent scheme to remain permanently in Australia. As material is not available it cannot safely be concluded in the circumstances of this case that the Delegate failed to give genuine consideration to whether it was “appropriate” to cancel a visa under s.128: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 per Madgwick J (with whom Conti J agreed) at [212].
Ms Francois refers to Singh which deals with the adequacy of the reasons given as to why it was appropriate to cancel the visa offshore. Ms Francois contends that the argument advanced by Mr Godwin seemed to put a proposition that unless public safety is involved, a delegate can never cancel offshore if there is a corresponding power to do so onshore, and he takes the reasoning of his Honour Driver FM in Singh essentially to support that proposition. Ms Francois indicated that on behalf of the Minister she did not read his Honour’s decision in that way, but alternatively based on the material before the Court if it can be satisfied that the decision maker did not engage in a genuine process then that decision can be set aside. In Singh at [52] it states that s.128 requires the Minister’s satisfaction that it is appropriate to cancel in accordance with this Subdivision. What his Honour found in Singh, based on the material before him, was that there had been no genuine consideration given to the question by the delegate. His Honour’s decision was not on the basis of the sentence that the applicant was offshore and may seek to come back onshore, or words to that effect, but it was the entire circumstances of the case.
Singh was a case where two young women from Fiji had come to Australia and wanted to become part of their parents’ family unit. There was an issue about their relationship with their boyfriends. That issue was dealt with by the Tribunal in the following way at [107]:
… The applicants could not seriously have been expected to rehearse all the information they had previously disclosed to the Minister’s department in the MRT which explained how their circumstances had changed since 2000. Over that period the applicants had been found by a delegate not to be dependent on their father on 2 January 2001 and that decision was reversed by the MRT in its decision made on 3 November 2003. In asserting that there were no changed circumstances the applicants could not possibly have been making an unqualifiable reference to the period between 3 July 2000 and 15 December 2003 because it was patently obvious that the circumstances had changed dramatically. The applicants had been found not to be dependent and had subsequently been found to be dependent.
The MRT decision was based upon the information available to it at the time of its decision, including information based from Monilta that she had a boyfriend and that her parents knew about it. She was contemplating marriage, but there was no commitment on the part of her parents. Monica was less forthcoming than Monilta, but the MRT saw no reason to distinguish between them. Her circumstances were materially the same as Monilta’s, and if she had been as forthcoming as Monilta there still would have been no basis to distinguish between them…
In the light of this, and notwithstanding information about possible marriage of Monilta, the MRT found that applicants were neither married or engaged in the cultural context in which they lived and it could be expected they would remain living at home.
(footnotes omitted)
Ms Francois submits that in this context the Department stated “you haven’t told us about a change in circumstance”, the MRT had considered that information. Consequently what his Honour Driver FM was saying was it was bad faith because the MRT had had all the information the Department now said wasn’t disclosed to it and specifically took into account in the finding that they were not dependent. This alleged change in information was why his Honour was prepared to say at [103]:
…[I]t is probably open to me to conclude that the decision of the delegate was perverse, illogical and unreasonable in a Wednesbury sense…
Taking into account everything that was before his Honour he says there is just no general consideration. “Knowing all the material, I can conclude that there was no general consideration given, in light of all the circumstances, to why it was appropriate to cancel offshore and not when they were in Australia”. His Honour saw it was an opportunistic way for the Department to get its way in contrast to what the MRT had found. His Honour appears to be persuaded that the Department was acting in bad faith and that explains his decision.
Ms Francois argues that his Honour’s decision is not based upon the formulaic use of the words that the person is offshore and might seek to return to Australia, it is based upon all the material that was before his Honour for the Court to reach a level of satisfaction that there had been no genuine attempt by the decision maker to reach a level of satisfaction, that he’s not done just by reviewing the words used by the decision maker, it looks at it in all of the context. His Honour was satisfied that, in fact, there was a desire of this delegate in Singh to deprive the applicant of rights, because the information available to him indicated that. However, there is no such information in the matter before this Court and Mr Godwin cannot point to it. His argument is “it’s roughly the same wording used, therefore your Honour should reach the same conclusion”. However, this is not the situation in the matter before this Court because the evidence is not before it to enable the Court to be satisfied that this Delegate has not acted genuinely. Ms Francois submits a proper consideration and a proper satisfaction is reached if a delegate had sufficient information before it that an applicant has given false information to obtain a visa, then in order to frustrate that applicant achieving their goal of living permanently in Australia it is an appropriate way to cancel their visa while they are offshore.
Ms Francois contends that it comes down to whether or not the Applicant is being genuine and acting in good faith. In this matter, there is not enough information before the Court, because of the non-disclosable information decision and the subsequent ruling of public interest indemnity, to make that determination. Consequently, this ground must fail and the mere use of words does not bring this case in line with Singh (supra) which must be considered on its own facts which were highly unusual and disappointing in terms of the delegate’s behaviour.
Consideration – Ground One
This ground of review depends on whether the Delegate had before her sufficient information which was duly and adequately considered to reach a level of satisfaction to adopt the cancellation method used in the Decision Record. An assessment of that approach is different for this Court because of the non-disclosable information decision and the subsequent public interest indemnity granted over the material held by the Department. The issue recorded in “Part B – Consideration of Visa Cancellation” in the Decision Record (CB 10) states:
Grounds for Cancellation: The relationship between Mr Abd Elhamid and his sponsor terminated prior to the grant of the permanent entry visa.
Evidence of grounds for cancellation: The Department received information stating that Mr Abd Elhamid was not in a spousal relationship with his sponsor at the time of the grant of his second stage visa, subclass BC100.
Mr Abd Elhamid was interviewed 3.46pm 2 December 2010 where upon he stated that his circumstances had never changed. Given the information available to me I am not satisfied that Mr Abd Elhamid’s circumstances are those stated at time of visa grant.
(emphasis added)
The “Index to Court Book” No 6 states:
Four Statutory Declarations provided to DIAC
Date N/R (Public Interest Immunity)
This is the result of an earlier decision of this Court in Elhamid v Minister for Immigration and Citizenship (supra) which was handed down on 26 May 2011. Consequently the author or authors and the respective dates of the preparation of those statutory declarations are not before this Court.
Ms Francois, in her written submissions, indicates that in the absence of the public interest immunity material it cannot be safely concluded that the Delegate failed to give genuine consideration to whether it was appropriate to cancel the visa, referring the Court to the decision in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (supra) per Madgwick J (with whom Conti J agreed) at [212] where his Honour stated:
212. There was no independent requirement on the delegate so to check. Nevertheless, given the potential importance of the letter and the delegate’s fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], a ‘decision-maker may be aware of information without paying any attention to it or giving it any consideration’. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration – had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in ‘an active intellectual process’ in relation to the letter – yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.
There is however some assistance found in the Case Notes dated 3 December 2010 recorded by the Delegate during the interview with the Applicant (CB 5-8). There are three items in those notes that have been excised and marked N.D.I. (non-disclosable item). The details of these items are as follows:
(a)Delegate: Have you maintained contact with Ms Al- Mazjoub while you have been away?
Applicant: Yes, she just gave me a call, two hours ago just before the Embassy called.
Delegate: How many times have you called her while you’ve been away?
Applicant: Every week so she usually calls me.
Delegate: How often does she call you?
Applicant: Every week.
Delegate: Are you able to show me any other calls?
Applicant: Missed call on 22 November 2010.
(Number of words excised and marked (N.D.I.) (CB 6)
(b)Delegate: Will you resume your residence with your wife in your return to Australia?
Applicant: Yes.
(Next sentenced excised and marked (N.D.I.) (CB 6)
(c) At the end of the initial interview the following occurs;
Delegate: Ok, I’ll take a few minutes to consider your claims and I will be back shortly. I went into the office and called (three full lines of print excised) anything further (excised material marked (N.D.I.) below) (CB 7)
During the interview once the details of the Applicants current status was established to the effect that he was in Egypt to visit his family in Qualibiya the questioning then turns to the spousal relationship. The two questions above (a) and (b) could be inferred to contain material (excised) that may contradict the response and could identify the source. While (c) indicates that a call was made to possibly verify a statement or statements made by the Applicant and again possibly indentify the source. Contrary to the situation in Singh the whole of the interview was focused on one specific issue of the status of the spousal relationship. In effect, this is a very narrow issue and regardless of how that status in expressed in the statutory declarations the outcome is that it either exists or it does not.
The reason for the enquiry conducted by the Department of Immigration and Citizenship is that it “received information stating that Abd Elhamid was not in a spousal relationship with sponsor at the time of the grant of his second visa stage.” That information is not before the Court because of the grant of a public interest immunity. However the Court Book Index indicates that four N.D.I. statutory declarations have been provided to the Department and it must be assumed that one or more of those statutory declarations detail the breakdown of the spousal relationship which is the key issue in the cancellation of the visa. Unlike the circumstances in Singh (supra) the single focus of the Delegate in the case before this Court is specifically the status of the spousal relationship. The author or authors of the N.D.I. statutory declarations are unknown however reading the sections of the Delegate’s recorded notes and particularly in the context surrounding the excised sections marked N.D.I. it appears that those portions identify the author or authors of the N.D.I. statutory declarations. In those circumstances I believe it is difficult to maintain an argument that the Delegate failed to give genuine consideration to whether it was appropriate to cancel the visa under s.128.
I acknowledge and agree with Ms Francois submissions that in the absence of the public interest immunity material it cannot safely be concluded that the Delegate failed to give genuine consideration to the material available before making the decision to cancel. However, on the material that was available to the Delegate at the time of the decision that concerns the issues of the spousal relationship and its status at the relevant time being the date of the grant of the visa. Consequently the ambits of the decision are considerably narrowed.
The date of the grant of the subclass BC100 Visa was 10 August 2010 (CB 4, 9 and 10). At the interview at the Australian Embassy on 3 December 2010 the Delegate states:
The Department has been informed that your relationship with your sponsor has ceased prior to you being granted your permanent visa. (CB 6)
It must be assumed that the source of that information is contained in one or more of the four N.D.I. statutory declarations that have been provided to the Department and have been ruled as non-disclosable information and subsequently granted public interest immunity. The author or authors and the dates of execution of those N.D.I. statutory declarations are also not before the Court. However it may be assumed that the information is specific enough to indicate that the spousal relationship had ceased and that occurred at some time prior to 10 August 2010. The description of the status of the spousal relationship by the Delegate is very specific and without qualification. There is no terminology of the nature that it is “suspected, suggested or rumoured” that the spousal relationship has ceased. Similarly the statement by the Delegate is specific in that the event or events must have occurred prior to 10 August 2010. Again the statement is made without qualification.
As the information provided to the Department is not available it cannot safely be concluded in the circumstances of the case that the Delegate failed to give genuine consideration to whether it was appropriate to cancel the visa under s.128. However I believe that on the material that is available that this case can be distinguished from the facts of those in Singh. As I have indicated above the issue is narrow and specific in nature. It consisted of two distinct elements, that the spousal relationship had ended and that had occurred before a specific date. All of the information that is available focuses on these two elements and nothing else. In these circumstances I am satisfied that Ground 1 cannot be sustained and should be dismissed.
Grounds 2(a) and 2(c)
In Grounds 2(a) and 2(c) of the Amended Application the Applicant seeks the following:
2. The decision made by the respondent on 9 January 2011 under s.131 not to revoke the cancellation of the applicant’s visa was affected by jurisdictional error as:
(a) the decisionmaker (sic) failed to comply with the requirements of s.129 of the Act as adequate particulars of the ground of cancellation and of the information (not being non-disclosable information) because of which the ground was considered to exist were not provided to the applicant;
(c) the decision maker failed to afford the applicant procedural fairness as adequate particulars of the information upon which the decision not to revoke the cancellation was based were not provided to the applicant for his comment;
Applicant’s Submissions for Ground 2(a) and 2 (c)
Mr Godwin submits that, as a preliminary matter, it is important to keep in the forefront of the mind the fact that the cancellation was based upon the Applicant’s failure to notify a change of circumstances before the grant of his visa on 10 August 2010. Section 129 – Notice of Cancellation, provides:
(1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:
(a) stating the ground on which it was cancelled; and
(b) giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and
...
Although s.129 contains further subsections Mr Godwin was advancing his argument on the significance of subsections 1(a) and 1(b). Mr Godwin also drew to the Court’s attention that reg. 1.15A was repealed and substituted by item 29 in schedule 1 of the Migration Amendment Regulations 2009 (No. 7) (Cth) effective 1 July 2009. Regulation 3.2 of that regulation provides that “subject to this regulation, the amendments made by Schedule 1 apply in relation to an application for a visa made on or after 1 July 2009”. As the Applicant applied for his visa prior to 1 July 2009 it is the pre-repealed version of the reg. 1.15A which applies to him.
It is submitted that the applicable law which the Tribunal had to apply was the pre-repealed version of reg. 1.15A and it was required to apply the definition of spouse in that regulation. Regulation 1.15A, at the time of the application for the visa, provided the definition of “spouse” for the purposes of the Act:
1.15A Spouse
(1) For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:
(a) in a married relationship, as described in subregulation (1A); or
(b) in a de facto relationship, as described in subregulation (2).
(1A)Persons are in a married relationship if:
(a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(b) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A) live together; or
(B) do not live separately and apart on a permanent basis.
The notice given by the Minister’s Delegate, Ms Antoniou, on 2 December 2010 at the Australian Embassy in Egypt, stated the following under the heading “Consideration of visa cancellation”:
Ground for cancellation: The relationship between Mr Abd El Hamid and his sponsor terminated prior to the grant of the permanent entry visa.
Evidence of grounds of cancellation: The Department received information that Mr Abd El Hamid was not in a spousal relationship with his sponsor at the time of the grant of the second stage visa, subclass BC 100.
Mr Godwin submits that the grounds for cancellation given in the notice were in fact deficient because they are different to the actual grounds of cancellation – which was a failure to notify of the change of circumstances. The fact that the spousal relationship had ended was in itself insufficient to justify a visa cancellation based on the stated ground. Mr Godwin submits that the particulars are manifestly inadequate in any event. The requirements for a valid notice under s.129 were explained in Noeung v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 125 FCR 503 per Allsop J at [72] – [73] where his Honour stated:
72. The question is whether there has been sufficient or substantial compliance here such that it can be said that the purpose of the section has been fulfilled. It is necessary to appreciate what s 129 requires. The notice must:
(a) state the ground or grounds on which the visa was cancelled;
(b) give particulars of the ground;
(c) give particulars of the information because of which the ground was considered to exist; and
(d) invite a response as to the matters in pars 129(1)(c)(i) and (ii) within the prescribed time.
73. The tripartite division of information in (a), (b) and (c) above will not always be easy to apply, such that what is involved in each integer can be seen to be separate. Sometimes, it will be straightforward to say: the ground is section X of the Act; particulars of the ground are as follows (being in all likelihood the elements of the section of the Act in question); and the information as to why the ground is considered to exist is as follows. If the underlying proposition is simple, there may be little to differentiate (b) and (c) - particulars of the ground and particulars of the information because of which the ground was considered to exist. Also, if the evidentiary material before the delegate is voluminous, it may not be necessary to exhaustively recount it all, identifying every detail of it. What is required are particulars of the information because of which the ground is considered to exist. As I said in Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [104] and [116], in discussing not dissimilar words in s 424A of the Act, being words evincing a similar statutory purpose to those in par 129(1)(b):
104. The evident purpose of s 424A is to play its part in the provision of a procedural analogue to the common law of procedural fairness. I think s 424A should be looked at with a purpose in mind of ensuring that the claimant is fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it. The extent of particulars of any information should be looked at in a common sense way in the context of the matter in hand and with fairness to the applicant in mind. A consideration of these matters is obviously affected by the chosen approach of the Tribunal. Particulars of information need to be provided to the applicant so that the applicant understands what is the relevant information to the review. This very much depends upon what the Tribunal takes to be relevant
………
116. The question as to whether information would be the reason or a part of the reason for affirmation is ultimately decided, in my view, by whether it can be characterised as sufficiently important to the reasoning process in the rejection of the appellant's claims, for fairness to warrant that the applicant be told of it so that he or she can understand and be able to meet the integers or elements that make up the Tribunal's reason or conclusion thusfar reached (hence "would") for finding adversely to the applicant.
Mr Godwin contends that in order to facilitate a meaningful response the Applicant needs to know precisely what the change of circumstances were and when that had occurred. At a minimum the notice should have identified which integers of the definition of spouse were no longer met and when this occurred. However, no such particulars were given in this case. It is contended that the Applicant was left guessing as to what evidence he needed to adduce. What specific time period was it alleged that the spousal relationship had ended? Was it days, weeks, months or years before the date of cancellation? This is not a mere technicality, the available evidence (in terms of both witness and objective documentation) might differ considerably depending on when the relationship is said to have ceased to exist. Importantly the evidence before the decision maker may in fact have spoken as at the present time, and not at, or prior to the date of the grant of the visa. Further, some aspects of the spousal relationship may appear to have broken down, but, in fact only done so fleetingly – for example, a couple may have separated briefly at one point in time and then reunited prior to the grant of the visa.
Mr Godwin submits that then there is the issue of what aspect of the definition of spouse was alleged to no longer exist – was it alleged he had decided to live separately – or was he alleged to be in a relationship with another woman? Had they stopped being intimate? Should the Applicant adduce evidence of their cohabitation? Or that they remain validly married? Or that their relationship was genuine and continuing? Or of a mutual commitment to a shared life as husband and wife? The description of the information upon which the ground is based is simply a repetition of the (erroneously particularised) ground. In fact, there is no description of any information, other than that the Department had received information that the spousal relationship had ceased. If this general description of the information was accurate, how could the Delegate have lawfully cancelled the visa? A bare assertion by a member of the public that the spousal relationship had ceased does not provide a proper basis for determining that one or more of the requirements of reg. 1.15A were no longer satisfied at the time of, or prior to the grant of, the visa.
Mr Godwin indicated that it should be noted that under s.128(3) a failure to give notice under s.129 does not have any consequence to the cancellation but what the decisions referred to by his Honour Allsop J in Noeung v The Minister of Immigration (supra) establish that if no notice is given under s.129 then there is no power to consider revocation under s.131 and therefore there is failure to comply with the statutory scheme in terms of the cancellation so, by that route jurisdictional error is committed in the cancellation decision. The other significance is that an inadequate notice under s.129 is the same as giving no notice at all. Consequently a finding that the s.129 notice was deficient then the revocation provisions are not enlivened so the statutory scheme fails and the cancellation decision fails as well. What is required is that s.129 notice is adequate to elect a meaningful response to the reasons for cancellation.
Mr Godwin submits that the applicant must assume that the information must have had greater detail and focussed on specific aspects of reg. 1.15A’s definition at a particular time, otherwise there has been a clear failure to lawfully consider the revocation of the cancellation decision. That more detailed information was provided can be inferred from the fact that:
a)There were four statutory declarations in evidence before the Delegate at the time of the cancellation; and
b)The revocation decision asserts that the “Department has received information which contradicts the claims made by you in your response”.
Mr Godwin acknowledges the absence of requirements in s.129, noting the non-disclosable information provision, this case would be over. Mr Godwin argues the substance of what was in those statutory declarations, the author or authors and date of execution, was relevant information the Applicant needed to properly meet the allegation because that is how s.129 reads. Mr Godwin indicated that this raises the question of how the exception for non-disclosable information worked, particularly in respect to information given to the Department. Does it mean the whole of the document, and everything it contains become non-disclosable information? If that is the case then there is no duty under s.129 to provide notice of it to the Applicant. The Applicant should have been given sufficient details of the information so that he could address the circumstances.
Mr Godwin referred the Court to the decision in Harrington v Andrews, MP, Minister for Immigration and Citizenship (2007) 97 ALD 96 per Besanko J which addresses the question in respect to the treatment of non-disclosable information under s.129 of the Migration Act. In that case the applicant was a British citizen, was granted permanent residency when he arrived in Australia in 1974. Upon pleading guilty to charges of indecent assault he was sentenced to imprisonment for 6 years and 6 months. He was released from gaol on 15 June 2006. In July 2006 the applicant was given notice by letter that the Minister was giving consideration to the cancellation of the applicant’s visa. The notice indicated that material which the Minister would take into account included reports of the Parole Board of South Australia. The contents of the reports were not disclosed to the applicant as they fell within the definition of non-disclosable information in s.5(1) of the Migration Act. At [20] of the decision it states:
The letter stated the Department had reports of the Parole Board of South Australia, but that those reports had been classified as “non-disclosable information” pursuant to section 5(1) of the Act. The letter stated the reports could not be released to the applicant, however, the applicant was invited to comment.
Mr Godwin indicates that his Honour Besanko J is not cavilling with the characterisation of the reports as non-disclosable information but notwithstanding, then states at [60]:
In this case, there clearly was information in the Parole Board reports which was adverse and was not provided by the applicant or to him from other sources. That information related to concerns about where the applicant proposed to live in relation to his victim. The substance of that information should have been disclosed to the applicant…
Mr Godwin submits that Besanko J’s characterisation of what needed to be disclosed under s.129 is also the characterisation the High Court gave non-disclosable information under s.359A in its decision in Minister for Immigration and Citizenship v Kumar [2009] HCA 10. In that case the parties did get access to the non-disclosable information and the characterisation of the s.359A letter was not challenged as being the substance of what was in that letter. At [34] of that decision the High Court indicated that the Tribunal complied with s.359A(1) by notifying Mr Kumar that it had received information in confidence which stated his marriage was contrived for the sole purpose of his migration to Australia and invited his response.
Their Honours referred to their earlier decision in Applicant VEAL of 2002 v Minister of Immigration, Multicultural and Indigenous Affairs (2005) 225 CLR 88. In Kumar at [32] their Honours stated:
However, although spoken in the application of general law principles of procedural fairness rather than in the application of s.359A the following passage from VEAL points to the answer in this appeal:
To give the appellant a copy of the letter or tell him who wrote it would give no significance to the public interest in the proper administration of the Act which, as pointed out earlier, required that those entitled to a visa be granted one and those not entitled be refused. It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations.
(footnotes omitted)
Mr Godwin submits that the above authority establishes that you have to have the substance of the allegations. In VEAL at [27] it states:
27... It follows that to conduct the review with procedural fairness, the appellant had at least to know the substance of what was said against him in the letter. Only then could he attempt to answer the suggestion made by the author of the letter that the applicant had reasons other than Convention reasons to absent himself from Eritrea and that he did not have a well-founded fear of persecution for a Convention reason.
Mr Godwin contends that is the detail that the applicant in VEAL was entitled to know to be enabled to make a meaningful response. Mr Godwin maintains that in the actual notice in the matter before this Court (CB 10) where it states:
Ground for Cancellation: The relationship between the applicant and his sponsor terminated prior to the grant of the permanent entry visa
This is not actually a proper description of the ground. The ground is a failure to notify of the change in circumstances.
Respondent’s Submissions on Grounds 2(a) and 2(c)
Ms Francois submits that in this case, the notice of cancellation was given by letter dated 2 December 2010 which also attached a “Decision Record”. The letter clearly stated that the Applicant’s visa had been cancelled “because [the applicant was] not in an ongoing relationship with [his] sponsor at the time of the grant of [his] visa and failed to notify the Department of [his] change in circumstances” (CB 9). This was then explained further in part B of the Decision Record being that “The relationship between [the applicant] and his sponsor terminated prior to the grant of his permanent entry visa”.
Ms Francois submits that the letter clearly stated the ground and the basis for it, being that he was no longer in a relationship with his sponsor. This was the same allegation as had been put to him during the interview with the Delegate (CB 6). At no time did the Applicant complain that he could not answer the allegation or that he did not understand it. He knew the way to meet it was to prove he was in the relationship, and that is what he tried, unsuccessfully, and notably without the assistance of the most important person, to prove. The level of information which the Applicant now claims he needed to know is inconsistent with his behaviour at the time of the notification, his response to the notification and common sense: Noeung v Minister for Immigration & Multicultural & Indigenous Affairs (supra) per Allsop J at [73]. Further, there is absolutely no doubt that the Applicant knew that the critical evidence he needed was from his wife. Even if that was not obvious, the Delegate expressly told him so (CB 7). A failure to provide such evidence had the obvious and inevitable consequence.
Ms Francois submits that insofar as it is asserted that the Delegate gave no meaningful consideration to the grounds of cancellation because there was no detailed explanation of why the Applicant no longer met the definition of “spouse”, such an assertion is difficult to understand from a practical perspective. The allegation against the Applicant was that his relationship had ended (“ceased” or “terminated”) prior to the grant of his visa. The Applicant was in no doubt about and sought to rebut it by saying he was in the relationship. In these circumstances, how more detailed information stated that this meant the Delegate believed the Applicant and his spouse did not have “a mutual commitment to each other to the exclusion of all others” and that the “relationship was not genuine and continuing” would have further assisted the Applicant or made the conclusion any more genuine is unclear and contrary to common sense. Ms Francois submits that no authority is cited in support of this ground of review.
Ms Francois submits that in respect to the decision in Noeung v Minister (supra), she takes a slightly different emphasis to that advocated by Mr Godwin. At [71] it states:
… Whilst the assessment of the adequacy of the notice is to be objective, due account must be taken of the contents in which the particular notice is sent to the recipient. What is a clear notification of relevant matters to one person may not be to another if one has regard to the contents of the parties giving and receiving the notice in question.
Ms Francois acknowledges very complex factual circumstances in this case to do with different spouse, children and a range of other issues. His Honour, Allsop J, quotes himself in Paul (supra) at [73] which states:
… Particulars of information need to be provided to the applicant so that the applicant understands what is the relevant information to the review. This very much depends upon what the Tribunal takes to be relevant.
Ms Francois contends that the touchstone of what this Court is being asked to do is something pragmatic in the context of all of the circumstances and is not technical. Part of the problem is that all of the circumstances are not before the Court because the Court is not entitled to have regard to the statutory declarations upon which the notification was based. Consequently, the Court is not able to properly assess all these matters because the key information is not before the Court, however, the Court has to be satisfied that the Applicant knew enough of what was before the decision maker in order to be able to respond.
As the Court is not able to have regard to what was in the statutory declarations this Court cannot do what happened in every other case advanced by Mr Godwin which is to compare what was before the decision maker and what was put to the Applicant. This Court is deprived of that opportunity and that is just not an analysis that can now be undertaken.
In Noeung (supra) at [79] his Honour, Allsop J, states:
… This is not a case where to identify the source of the information would be either oppressive or tangential.
So his Honour considered that the identity of the people who were giving information and the circumstances in which they were giving it was important for the Applicant to know in order to be able to respond. Ms Francois acknowledges that there is no doubt the matter before this Court the Applicant would have been assisted to know the identity of the persons who were giving information to the Department, but that is not something he was entitled to know due to the public interest immunity. Consequently, Noeung is not the same type of case as is the case before this Court which is truncated because the information that the Department received is protected.
Ms Francois contends that it is apparent the effect that that has upon an Applicant and is demonstrated in the decision of Sagar v O’Sullivan (supra) at [59] where his Honour, Tracey J, starts the consideration of the grounds of review. The first ground was that there were no facts that exist which could justify the adverse security assessment. At [64] his Honour states:
64. In the present case the Director-General’s reasons for making the adverse assessment are not known. For reasons which I have given, it is not open to him to expose his reasons to scrutiny. In these circumstances neither the general denial proffered by the applicant nor the Director-General’s failure to disclose his reasons permit the inference to be drawn that no facts exist which support the judgment to which the Director-General came to in each case.
Ms Francois acknowledges that this context is different from the matter before this Court. However, importantly, the issue could not be properly established because the fundamental information upon which the decision is based is not before the Court for assessment.
Ms Francois then drew the Court’s attention to the notice itself and referred to the comments of Allsop J in Noeung (supra) where his Honour stated that you read these notices pragmatically and not technically. In the covering letter to the decision record (CB 9) the first paragraph states:
I wish to advise that your subclass BC 100 Visa granted on 10 August 2010 was cancelled on 2 December 2010 under section 128 of the Migration Act 1958 (“the Act”) because you were not in an ongoing relationship with your sponsor at the time of the grant of your visa and failed to notify the department of your change in circumstance.
Ms Francois acknowledges that Mr Godwin is correct that the grounds for cancellation (CB 10) do not fully identify what the grounds are, being failure to notify, but the first page and first paragraph of the notification letter give that information. Ms Francois contends that it is not as if this notice failed to inform the Applicant of why he had had visa cancelled as it told him in the first paragraph it was because he had failed to notify the Department of his change in circumstances which is probably a reference to s.116(a) of the Migration Act. Ms Francois referred the Court to the decision of Allsop J in Noeung (supra) at [74] where his Honour notes that there was a failure to refer to s.104 and then states:
… I do not think, however, that the failure to nominate the section or sections of the Act is fatal, so long as the notice, read fairly, indicates what the grounds were…
Ms Francois argues that the first paragraph of the letter to the Applicant clearly states what the ground is: “You were not in any ongoing relationship with your spouse” and you “failed to notify the Department of your change in circumstances”. Then, in terms of the evidence of the grounds of cancellation, the difficulty for this Applicant in challenging this aspect of the notice is, of course, that the Court cannot review the information that was before the Delegate because all of that is subject to the public interest immunity. It is a difficulty the Applicant faces but if the claim for public interest immunity is properly made then that is the Applicant’s difficulty. It is unfortunate, but that is the best information he can get and it clearly tells him what he has to do to prove otherwise. He knows that what he has to meet is that he is not in a relationship at the time of the grant of his visa.
Ms Francois argues that the Applicant understood the type of information necessary is quite clear from the evidence that he then filed. He submitted a range of evidence trying to establish that, even at the time that he left Australia, he was still in the relationship. All of the information that he put before the Delegate used to establish the proposition he said in the interview, which is, “I am still in a relationship”. Ms Francois contends that this matter is not a complex case where maybe the relationship ended two months after the grant of the visa, or there is a de facto in Cambodia, and children and other parties in other locations. The Applicant knows what he had to establish, so there is no doubt that the Applicant was disadvantaged by not knowing what information the Delegate had before her, but once public interest immunity is established then the Applicant is simply not entitled to know that and what he is told is the gist of that information and that is what he then addressed. The Applicant is in a similar situation to that in Sagar (supra) who had adverse ASIO security assessments and was severely limited in dealing with their challenge to those decisions because they could not see the underlying information.
Consideration of Ground 2(a) and 2(c)
In respect of the preliminary point raised by Mr Godwin that reg 1.15A was repealed effective 1 July 2009 however as part of the scheme of amendment by Schedule 1 applies in relation to the application of visa made on or after 1 July 2009. The Departmental letter contained in the Court Book (CB 1-3) indicates that the application for a Spouse visa was lodged on 23 October 2006. In reg 1.15A “spouse” is defined in 1.15A(1)(a) as in a married relationship. The relationship is evidenced by the Marriage Certification dated 13 July 2006 which is in the Court Book (CB 37). I do not believe that any issue arose from this point.
The substantial thrust of Mr Godwin’s argument was that the amount of information released by the Department in both the interview and the s.128 notice letter were inadequate. As a result of that failure the Applicant was not in a position to be able to give a suitably detailed response. In s.5;
Interpretation
“non-disclosable information"means information or matter:
(a) …
(b) …
(c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;
and includes any document containing, or any record of, such information or matter.
It has to be assumed that the person or persons that forwarded the statutory declaration have requested that the contents be kept confidential or, alternatively, the Department upon reviewing the contents has formed the view that the information should not be disclosed. In circumstances such as these there are possibly numerous sources of information that would require that it be treated in confidence. This would include people who have made their own observations, those who have been confidentially consulted on a professional or personal basis, those who have some statutory obligation to report or a party themselves and possibly family members. Mr Godwin makes reference to a bare assertion by a member of the public that the spousal relationship had ceased, however, I do not believe such a source in this case is likely because of the initial approach by the Delegate and the subsequent application made by the Department at the initial hearing of the matter.
In all of these possible sources the nature of the details that would be required to be contained is such that any information disclosure may immediately identify the source and be contrary to the intention of the informant and expose them to some form of retaliation or abuse. The volume and nature of the contents of each statutory declaration is unknown but it is not unreasonable to form the view that the entire contents of each declaration is devoted to the relaying of one or more incidents that specifically address the breakdown of the spousal relationship. It is not difficult to envisage a number of situations where the release of any detail or summary of detail would immediately expose the informant and breach the non-disclosable information status of the material. Unfortunately, Mr Godwin is in the same position as the Court in that the precise contents of the statutory declarations is unavailable so any submission that the failure to provide sufficient details of the contents of the statutory declarations cannot be sustained.
I agree with the written submissions made by Ms Francois that the letter issued by the Department, signed by the Delegate Ms Antoniou dated 2 December 2010 and handed to the Applicant on that date (CB 9) clearly stated the ground of cancellation and the basis for it, being that he was no longer in a relationship with his sponsor. At no time did the Applicant complain that he could not answer the allegation or that he did not understand it. The letter stated the way that he could answer the allegation as follows:
The Act gives you the opportunity to show why you think the ground for cancellation does not exist and/ or give reasons why your visa should not have been cancelled.
(CB 9)
The Applicant knew that the critical evidence he needed in order to respond to the Delegate was from his wife. Even if that was not obvious, the Delegate expressly told him so at the interview:
Delegate: You have 28 days to respond to this letter. If you have any evidence to disprove the information that have been tendered we are able to revoke the visa cancellation.
Applicant: I love my wife and I want to stay with my wife and I live with my wife.
Delegate: Sir, I understand that you are shocked but you have 28 days to provide us with any information that we have received is incorrect.
Applicant: I love my wife and she was pregnant twice and she had a miscarriage. I tell her I will come back. Let me talk to my wife.
Delegate: Sir, if you are able to provide evidence that the information that we have that your relationship is ongoing and has been ongoing.
Applicant: What evidence do you need?
Delegate: Any evidence that you deem appropriate. I suggest that you speak to your wife and if you can show joint evidence that your relationship has not ended or did not end prior to the visa grant, the visa cancellation can be revoked.
That is what the Applicant attempted to do by retaining the services of Mr Toufic Laba Sarkis who forwarded a letter dated 21 December 2010 (CB 14-16) accompanied by statutory declarations from Wael A. Salim Ahmed and Amir Elgohary, both friends of the Applicant. Mr Toufic Laba-Sarkis is well know in this Court and has been assisting migration applicants in various ways ranging from the preparation of various visa applications, written submissions, seeking to be recognized as a McKenzie friend and attempt to be a lay advocate. In SZFDZ v Minister for Immigration and Multicultural Affairs [2006] FCA 1366 per Moore J, his Honour made the following observations regarding Mr Laba-Sarkis at [7] and [8]:
7. Mr Laba-Sarkis described himself as a "community volunteer" who was involved with a number of community organisations. He is a former registered migration agent. At the hearing, he said he had practised as a migration agent between 1983 and 1996. He denied that he had ever been deregistered as a migration agent and said he had simply chosen not to renew his licence. In 1992, Mr Laba-Sarkis applied to be registered as a migration agent under the new statutory scheme for registration of migration agents which commenced operation in that year. The Department (which is now the Department for Immigration and Multicultural Affairs) referred the question of whether Mr Laba-Sarkis was not fit to be registered as a migration agent to the Migration Agents Registration Board on 6 November 1993. On 17 June 1996, the Board wrote to Mr Laba-Sarkis advising him that his application for registration had been refused. He was also directed to cease holding himself out as available to give migration assistance. On 15 July 1996, Mr Laba-Sarkis lodged an application for review of the Board's decision with the Tribunal. On 23 October 1997, the Tribunal affirmed the Board's decision, making adverse findings in relation to two of the seven complaints before it. The Tribunal found that Mr Laba-Sarkis was not a fit and proper person to give immigration assistance and therefore was not a person who could be registered as a migration agent under s 296 of the Act, as it then was. Merkel J of this Court dismissed an appeal from the Tribunal's decision on 15 June 1998: Toufic Sarkis v Migration Agents Registration Board [1998] FCA 719.
8. Since at least 2005, Mr Laba-Sarkis has, as he conceded, provided assistance in a number of migration proceedings in this Court and the Federal Magistrates Court, to parties seeking to challenge the relevant Tribunal's decision. The Minister's submissions identified fifteen examples of proceedings in 2005 and 2006 in which Mr Laba-Sarkis had provided such assistance. In his written submissions, Mr Laba-Sarkis' identified five additional cases (four from the Federal Magistrates Court and one from this Court) in which he had given or was still giving assistance.
Despite the problems that Mr Laba-Sarkis has experienced with formal requirements of the Office of the Migration Agents Registration Authority (OMARA) and the Courts in the years that he has been involved in assisting various individuals in respect of immigration issues particularly the matter before this Court he must be well aware of the critical material that would have to be produced to a senior migration officer to assist in the resolution of his clients situation. The crucial material would be a signed statement or statutory declaration from the wife indicating that the spousal relationship had not ceased. In Mr Laba-Sarkis’ letter dated 21 December 2010 to the Delegate it states:
I have spoken with his wife, Nouran on [mobile number] who assured me that since they return form Egypt until his departure from Australia on 23 October 2010 the couple continued to live together under the same roof. Nouran strongly denied the she ever made any complaint against her husband and she assured me that since they started living together she had never made any complaints.
(CB 14)
Significantly, no statement in respect of the spousal relationship or any form of supporting statement or statutory declaration from the wife was provided. Mr Laba-Sarkis did provide four statutory declarations from friends of the husband that claimed from their observations that the spousal relationships appeared to be ongoing but importantly nothing from any friend or relative of the wife. That failure to provide such evidence had the obvious and inevitable consequence.
The argument that the absence of a more detailed explanation by the Delegate of why the Applicant no longer satisfied the definition of spouse and was the result of the Delegate not undertaking a meaningful consideration is inconsistent with the Applicant immediate response at the interview at the Australia Embassy in Cairo on 2 December 2010. The response was to rebut the suggestion of any change in the relationship:
Delegate: What can you tell me to substantiate that claim that you are still in a relationship?
Applicant: I still live with her and we live together and we’ve been married now for over four years and we still live together
(CB 5)
Further into the interview the Applicant made other statements that their spousal relationship was ongoing. After the Delegate advised the Applicant that his visa had been cancelled under the provision of s.128 and that he had 28 days to respond to the notification letter with a possibility of the cancellation the Applicant responded:
Let me talk to my wife.
This is inconsistent with a claim that there was no detailed explanation by the Delegate that the relationship had broken down.
I agree with Ms Francois that the factual matrix of this matter is far less complex than that found in Noeung v Minister (supra) and the passage at [71] of that decision (see [56] above) applies in this matter. The notice contains two distinct elements:
a)The spousal relationship had ended;
b)Prior to the grant of his visa;
And do not require further explanation to be understood. The desire to know the source and nature of the details contained in the information would not prevent the Applicant in the understanding of these two elements.
I am satisfied that Ground 1 cannot be sustained and should be dismissed.
Ground 2(b)
In Ground 2(b) of the Amended Application the Applicant seeks the following:
2. The decision made by the respondent on 9 January 2011 under s.131 not to revoke the cancellation of the applicant’s visa was affected by jurisdictional error as:
(b) there was no meaningful consideration of the issues of whether a ground for cancellation existed or whether there was any other reason to revoke the cancellation;
There could well be an element within the information subject to the non-disclosable information that could not be detailed within the information given under s.129(1)(b). The above decision also indicates the lack of value that the material provided by Mr Laba-Sarkis including the statutory declaration from the Applicant’s four friends.
The argument raised by Mr Godwin that no attempt has been made by the Delegate in the revocation decision to identify how the Applicant and his wife’s circumstances had changed prior to the grant of the visa so that the definition in regulation 1.15A no longer applied to them. The restrictions that apply to the original notice apply equally to the revocation decision. In both documents the description of the circumstances is quite clear despite the details of the author or authors of the statutory declarations and the dates of their execution being non-disclosable information.
Accordingly I am satisfied that the notice under s.129 and s.131 had been given in the prescribed way observing the ruling in respect to the non-disclosable information decision covering the four N.D.I. statutory declarations. I am also satisfied that the procedural fairness has been accorded as required under s.127A that applies to the respective sections of Subdivision F of this Part and Division: Minister for Immigration and Multicultural Affairs v Lay Lat (supra). I am satisfied that Ground 2(b) cannot be sustained and should be dismissed.
Ground 2(d)
Ground 2(d) of the Applicant’s Amended Application is:
2. The decision made by the respondent on 9 January 2011 under s.131 not to revoke the cancellation of the applicant’s visa was affected by jurisdictional error as:
(d) there was an apprehension of bias and that the decision was not made in good faith as:
(i) the decision was made by the same person who made the cancellation decision; and
(ii) the decision maker placed unwarranted emphasis upon the absence of a statutory declaration from the applicant’s wife to the exclusion of consideration of the statutory declarations and submissions supplied by the applicant.
Applicant’s submissions on Ground 2(d)
Mr Godwin submits that the Applicant provided four statutory declarations from supporting witnesses corroborating his evidence that he and his wife continued their spousal relationship up until his departure from Australia. Other objective documentary material was either provided or offered to support the claim that the Applicant and his wife continued to live together and the wife was financially supported by the husband. No attempt was made in the revocation decision to address this material other than an assertion that it was contradicted by other evidence from the non-disclosable source.
Mr Godwin submits that the Delegate’s notes of the interview say “I suggest that you speak to your wife and if you can show joint evidence that your relationship has not ended and did not end prior to the visa grant, the visa cancellation can be revoked”. The implication is that the only satisfactory corroboration that the Delegate would accept is directly from the wife. The same Delegate then made the decision on the revocation application. In that decision the Delegate said that significant weight was placed upon the absence of statutory declarations from the wife. It is submitted that there is an apprehension that the Delegate had committed herself to her decision and was incapable of persuasion other than by evidence from the Applicant’s wife.
Respondent’s Submissions on Ground 2(d)
Ms Francois submits that it is important to recall that the Delegate was required to have an open mind, not an empty mind. The factual issue was simple - whether two people were in a relationship. The decision maker fairly informed the Applicant that, to count the evidence available to the Department, the best evidence would be from the other person he alleged was in the relationship. The failure of the applicant to call evidence from that person had the natural and obvious adverse effect. In the simple circumstances of the issue in this case, the conduct of the Delegate was not such as to indicate a mind “incapable of alteration”: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 or where a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”; Ex Parte H (2001) 179 ALR 425 cited by Kenny J in VFAB v Minister for Immigration [2003] FCA 872. Rather, the conduct of the Delegate was to fairly assist the Applicant to understand the type of evidence that would be required to counter the information that had been given to the department.
Ms Francois referred the Court to the Department’s notice titled “Notification of decision not to revoke visa cancellation under section 128 of the Migration Act 1958” (CB 38). Ms Francois acknowledges that the Court is again hamstrung in considering because obviously the only issue the Delegate could properly put was that the Applicant was not in a relationship at the time of the grant of the visa. All of the information that the Applicant had put forward is to say he was and still is in that relationship. The Delegates states:
…the Department has received information which contradicts the claims made by you in your response…
Ms Francois contends that in some ways that is self-evident because obviously the information the Department had was that he was not in a relationship. The Applicant put forward a range of information that was ultimately not accepted, however, the reasons for non-acceptance are compelling:
…In considering your claims I have placed significant weight on the fact that you have not provided a statutory declaration or any other document from your spouse, verifying the ongoing nature of your relationship…
Ms Francois contends that what the Delegate said to the Applicant was “the information that I have says that you are not in any relationship and it’s serious enough, in effect, for me to tell you that what you really need to do is prove the relationship you say you’re in by getting something from your wife”. Ms Francois submits that the Applicant was told this and that does not raise a question of bias, as that is a question of a Delegate trying to assist an Applicant to understand the type of information that would contradict what was before the Delegate and the level that was required to contradict that information. The Delegate then says that that is part of the reason why she had difficulty accepting what the Applicant had said, because what is before still effectively remains not fully contradicted by what he has submitted in support of his position. His information is not sufficient to outweigh what the Delegate had before her. He was told, as far as possible, having regard to the non-disclosable information decision, what the information was; that he was not in a relationship prior to the time of the grant of his visa. In oral interview he was told the type of information he needed to contradict the information that could not be disclosed. He was unable to do so and the non-revocation followed.
Consideration of Ground 2(d)
This ground is advanced on the basis of apprehended bias on the part of the Delegate, Mary Antoniou, Senior Migration Officer, Australian Embassy in Cairo. The regularly quoted authority of apprehended bias is stated to exist where “… a fair minded lay observer, who is properly informed as to the nature of proceedings, the matters in issue and the conduct of [the decision maker], would not apprehend that [the decision maker] might not bring an impartial mind to the resolution of the question to be decided”: Refugee Review Tribunal, Re; Ex Parte H (2001) 75 ALJR 982 at [27]; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at [293]-[294]. Typical examples of apprehended bias are:
a)The applicant has been overborne or intimidated by the decision maker: Re; Ex Parte H (supra) at [31]; and/or
b)The fact finding by the decision maker was conducted in a manner which was:
i)substantially unreasonable;
ii)the nature of the mere assertion that lacked rational or reasonable foundation ;
iii)at times plainly and ex facie wrong; and/or
iv)selection of material going one way: NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 at [115].
A determination as to whether an administrative decision is affected by apprehended bias should be informed by the following considerations:
a)Natural justice does not require the decision makers mind to be absent of any predisposition or inclination for, or against, an argument or conclusion. All that is required is for the decision maker to be open to persuasion: Minister for Immigration & Multicultural Affairs v Jia Legeng (supra) at [72] and [86]; and
b)In the context of an administrative decision maker, it is not intended with the strictures that apply in a case of judicial pre-judgment: Jia Legeng (supra) at [179]-[187]; 244-245; NADH of 2001 (supra) at [19].
This difference is described by his Honour Allsop J (Moore and Tamberlin JJ agreeing) in NADH of 2001 (supra) at [19]:
…The Tribunal does not administer public justice. The elements which effect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which maybe seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transportable as strict obligations of administrative decision-makers acting in private. The Tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expression of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.
The factual issue in the matter before this Court was simple, as the question was whether two people were in a spousal relationship. The material that had been provided to the Department was apparently of the nature that enabled the Delegate to form the view and inform the Applicant that the spousal relationship had ceased to exist at some time prior to the grant of the permanent BC100 visa. That information was provided to the Applicant in that direct form without any qualification. There is no suggestion in the message delivered by the Delegate that she was in the position of information that led her to believe or the material indicated that the spousal relationship may have ceased. The exact nature of the information that was before the Delegate was not disclosed and has subsequently been the subject of a public interest immunity order dated 26 May 2011.
At the time of the hearing at the Embassy the Delegate informed the Applicant that she would issue him with a letter that would state that his visa had been cancelled together with the reason for the cancellation. The Applicant was told that he would be provided with an opportunity to provide evidence to the Department to disprove the information that had been tendered. If that evidence was satisfactory then the Department was able to revoke the visa cancellation. At this point the Applicant raised the question “what evidence do you need?” The Delegate responded “Any evidence that you deem appropriate. I suggest that you speak to your wife and if you can show joint evidence that your relationship has not ended or did not end prior to the visa grant, the visa cancellation can be revoked” (CB 7). During this session of the interview the Applicant was handed a letter from the Department setting out these details and requesting a response for 30 December 2010 (CB 9). Throughout the interview an interpreter, Mr Bossem Barsoum, was present to ensure that the Applicant understood what was being discussed and at the end of the interview the interpreter was asked to read the letter to the Applicant as the Applicant indicated that he had a limited ability to read and comprehend English. It is then recorded that the letter was translated to the Applicant. At this stage I am satisfied that the Delegate had been open and fair with the Applicant by initially setting the breach within the parameters that she had been given the information apparently with some specific request for confidentiality by the source or because of the nature of the material contained in the information. Despite that restriction the nature of the breach is comprehensible. It is difficult to contemplate that the properly informed lay observer could from a view that the approach and actions of the Delegate could raise an apprehension of bias.
An element of the criticism of the Delegate advanced by Mr Godwin was that the decision to cancel the visa under s.128 and the decision in respect to the possible revocation of that initial decision were both made by the same person. No authority was advanced to support this proposition. An extensive review of authorities did not reveal any decision that would support this proposition.
As discussed elsewhere in this decision the Applicant retains the services of Mr Laba-Sarkis as the Applicant’s authorised recipient (CB 25-27). Mr Laba-Sarkis appears to have adopted an expanded role by preparing two letters (CB 14-16 and 31-32) in which he sets out various information on behalf of the Applicant. In addition he has obtained four statutory declarations from friends of the Applicant. The statutory declarations contain very little detailed material other than an emphasis on what occurred on the date of the Applicant’s departure from Sydney on 23 October 2010. None of the material marshalled and forwarded by Mr Laba-Sarkis addresses the advice given to the Applicant by the Delegate during the interview on 2 December 2010. Significantly there is no documentation from the Applicant’s wife, her relatives or friends stating her position. In the “Notice Of Decision Not To Revoke Visa Cancellation” issued by the Delegate on 9 January 2011 it states :
After considering your response, I have decided not to revoke the cancellation of your visa under section 131 because the Department has received information which contradicts the claims made by you in your response. In considering your claims I have placed significant weight on the fact that you have not provided a statutory declaration or any other documentation from your spouse verifying the ongoing nature of your relationship or that the relationship was ongoing at the time you were granted a permanent subclass BC100 visa. You were specifically asked at the interview held on 2 December 2010 to provide such a document in your response to the allegations put to you.
(CB 38)
I agree with Ms Francois’ submissions that the Applicant was advised of these requirements and that does not raise a question of bias as that is a question of the Delegate trying to assist an Applicant to understand the type of information that could contradict what is before the Delegate and the level that is required to contradict that information. At that stage the Delegate was treating the contents of the statutory declarations forwarded to the Department as non-disclosable information, however, regardless of this content the requirements to contest the validity of that non-disclosable material had been clearly articulated by the Delegate. Further the material marshalled and forwarded by Mr Laba-Sarkis was not sufficient to outweigh what the Delegate had before her. In circumstances where the requirements of the material to meet the allegations contained in the non-disclosable information is so clearly articulated it is difficult to maintain the claim that the decision maker had placed unwarranted emphasis upon the absence of a statutory declaration from the Applicant’s wife. In these circumstances this ground cannot be sustained and should be dismissed.
Grounds 2(e) and 2(f)
Grounds 2(e) and 2(f) of the Applicant’s Amended Application were:
2. The decision made by the respondent on 9 January 2011 under s.131 not to revoke the cancellation of the applicant’s visa was affected by jurisdictional error as:
(e) the decision maker failed to take into account all the matters relevant to whether it was appropriate to cancel the applicant’s visa. In particular the delegate failed to consider the merits of cancellation under any other division other than subdivision F; and
(f) the decision maker took into account an irrelevant consideration that the applicant would seek to enjoy the rights available to any holder of a permanent resident visa if he returned to Australia.
Applicant’s submissions on Grounds 2(e) and 2(f)
Mr Godwin in his written submissions indicated that he repeats his submissions in answer to Ground One. Further in reply Mr Godwin referred the Court to Chhuon v MIMIA (supra) which Mr Godwin contends that his Honour Mansfield J found two errors. The first is that the delegate’s stated reasons were inadequate in the sense that the delegate referred to obligations upon the applicant that clearly didn’t exist in relation to her sponsor’s martial status. There were clearly difficulties in the reasoning process of the delegate and his Honour found that the notice was inadequate. The second ground, which Mr Godwin is requesting this Court to apply to the facts of this case, is addressed at [57] of the decision:
[57] In my view, the conclusion is fortified by the absence of any apparent appreciation of the significance of the material submitted by the applicant through a migration agent…
The alternative nature of the ground is confirmed by his Honour in [61]:
…Both the reasons given for the second decision and the failure to address the material submitted by the applicant in response, accept by generic and fleeting reference, indicate the delegate did not really address what was required… But in the peculiar and particular consequences of this case, the brief and fleeting reference to the applicant's response to the s 129 notice indicates in my view that the factual issues which it raised (those confronting the applicant following the first decision) were not identified and considered by the delegate of the respondent, in a real sense…
Mr Godwin indicated that it is that aspect of Chhuon v MIMIA (supra) that he relies upon together with the other aspects about the capriciousness, or irrationality or unreasonable process of the delegate. Mr Godwin argues that the matter before this Court is a very different situation then was the case in Sagar v O’Sullivan (supra) where no reason at all was given because it was an adverse security assessment and the new material relied upon by the decision maker was subject to a public interest immunity order. Whereas in this matter we do have some reasons. The complaint is that, even thought a public interest immunity claim has been made in relation to the access to the documents, that is not enough to have excused the Delegate from complying with the requirements of s.129.
Mr Godwin contends that the High Court decisions in Minister for Immigration and Citizenship v Kumar (supra) and Applicant VEAL of 2002 v MIMIA (supra) and the Federal Court decision in Harrington v Andrews, Minister for Immigration & Citizenship (supra) all make it clear that even though there is non-disclosable information, provided that the Delegate does not breach the confidence which makes it non-disclosable material, he has to provide the substance of the information contained in the documents provided to him. Mr Godwin acknowledges that it is quite clear that in this case the Delegate could not reveal the name of the person who provided the information; however, there is no evidence before the Court that provides the substance of the documents without revealing the person who had provided the information. The name of the informant was confidential but that is about all. The Delegate’s reason is effectively a recitation of the statutory ground and nothing further. The information from which the background is said to have existed is just not given. All that is before the Court is the statement contained in the “Notification of the Decision Not To Revoke The Visa Cancellation” which states:
After considering your response, I have decided not to revoke the cancellation of your visa under section 131 because the Department has received information which contradicts the claim made by you in your response.
Mr Godwin contends that the point is that the Delegate’s decision was made in relation to the breakdown in relationship prior to the grant of the visa. The information that the Applicant provided was both in relation to that and in relation to the ongoing nature of the relationship after the grant of the visa. There was no attempt by the Delegate to address that aspect of what the Applicant put to the Delegate in his response.
Mr Godwin then referred to the characterisation of his Honour’s decision in Singh & Anor v Minister for Immigration & Anor (supra) and the need to appreciate the structure of the reasons in that case. Under the heading “Did the Applicants give an incorrect answer?” at [105] the delegate in that case relied on s.101 and the answer that the applicants gave was incorrect because they had been engaged previously. Then at [107] addressed the issue of whether or nor there was, in fact, an incorrect answer and his Honour’s analysis of it was a completely different ground of review then what is indicated by the heading.
Did the first delegates’ exercise of discretion under s.128(a)(2) miscarry?
Mr Godwin contends that one issue is that in fact there was no incorrect answer, so there was no basis for any cancellation at all. While the other issues, if there was a basis for cancellation, was the discretion to cancel incorrectly exercised? Completely different things in the argument advanced for the applicant in that case at [97] provided that context in which Driver FM’s reasons in relation to the exercise of discretion ground had to be considered. At [97] his Honour states:
… the delegate was concerned that there was a possibility that the applicants might attempt to enter Australia if they were given prior notice of any cancellation.
This is similar to the concern of the Delegate in the matter before this Court in that the Applicant might try to return and live permanently in Australia. His Honour continues at [97]:
… The reason for the delegate’s concern was unstated but clear. If the applicants had been within the migration zone at the time their permanent residence visas could not have been cancelled under s.128 or s.116 if they were immigration cleared: see ss.117(2) and 128(b). The applicants complain that this decision lacked any rational basis and was "perverse" and illogical and unreasonable in the Wednesbury sense. They contend that it cannot be appropriate to exercise the power of cancellation under s.128 simply because a visa holder may wish to exercise a right of entry which inheres in that visa…
Mr Godwin indicates that is the irrationality in that you cannot say it’s appropriate to cancel a visa simply to prevent an individual coming to Australia where they can exercise their right as a visa holder. That is the irrationality that was the focus of Driver FM’s subsequent reasons. His Honour [97] continues:
…They further contend that there must be some justification for withholding from a visa holder the procedural rights of prior notice of an intention to cancel that they would otherwise enjoy where a cancellation is contemplated pursuant to s.116(1)(d) of subdivision C.
Mr Godwin argues that some justification for depriving a visa holder of those rights must be considered by the delegate. Contrary to the argument advanced on behalf of the respondent that the Applicant’s case was that a delegate always had to say it was inappropriate to cancel a visa offshore unless there was some public safety issue involved. Mr Godwin confirms that is not what was being advanced on behalf of the Applicant. What is being said on behalf of the Applicant is that there has to be something extra, apart from the fact that the person might want to go back to Australia to exercise their rights, whatever that might be, the extra thing has to be additional to any express desire to return to Australia to exercise their rights. Mr Godwin argues that it is unknown what circumstances might arise that make it inappropriate for someone to be allowed to go back to Australia to exercise their rights but it does not have to be in all cases public safety. That does not mean that s.128 can never be exercised to cancel a visa using s.116(1)(b) unless there is a public safety concern. This is addressed by his Honour Driver FM in Singh (supra) at [99] where he states:
…It would be an invalid exercise of the power to limit one’s consideration to the fact that the visa holder is outside Australia. That is a separate and necessary criterion for the exercise of the power pursuant to s.128(b). It would be relevant to consider the possibility that the visa holder might seek to re-enter Australia but a proper consideration of that issue necessitates a consideration of the consequence of that possibility occurring. If the relevant ground relied upon was, for example, the ground in s.116(1)(e) the consequence of a visa holder entering Australia would be obvious. In other cases the consequence may not be obvious and may require express consideration.
At [100] in Singh (supra) his Honour states:
100. In my view, it would not be "appropriate" to cancel under subdivision F if it would be more "appropriate" to cancel under subdivision C or subdivision D. There was no consideration of the relative merits of cancellation under any division other than subdivision F. Moreover, although the delegate stated that she was "concerned" that there was a possibility that the applicants might attempt to enter Australia if they were given prior notice of any cancellation she did not explain why she was concerned. What harm would result from the applicants’ re-entering Australia? The delegate’s decision is silent. It surely could not be a sufficient basis for the delegate’s concern that the applicants would seek to enjoy the rights available to any holder of a permanent resident visa.
The balance of his Honour Driver FM’s reasoning in Singh (supra) is set out in [101]-[103]:
101. The answer must, in my view, lie in the operation of s.117(2) and s.128. If the applicants had been given notice of an intention to cancel and as a result entered Australia lawfully, cancellation would have become impossible under s.116. However, that would not of itself have affected the power to cancel under s.128as that power is, as I have already noted, is unaffected by the limitations on the power conferred unders.116. The first delegate’s concern is only explicable (in the absence of any evidence of any concern relating to the applicants themselves should they enter Australia) as a concern that giving notice (as would be required if the cancellation procedure under subdivision C was followed) would probably result in the loss of the ability to cancel without notice under s.128, which relevantly depended upon the availability of a ground of cancellation under s.116 and the absence of the applicants from Australia. The delegate’s concern must have been that the presence of the applicants in Australia would render unavailable both the power of cancellation under s.116 (because of the operation of s.117(2)) and under s.128 (because of the requirement in s.128(b) that the non citizen be outside Australia.
102. If those were the only available powers of cancellation then the applicants could have no cause for complaint. It would be "appropriate" to exercise the power under s.128 if it appeared likely that otherwise there would not no power to cancel at all. But if the applicants had entered Australia the power of cancellation under subdivision C would have remained available It could not be "appropriate" to cancel a visa without notice if (as appears here) the only consequence of a failure to do so is that the non citizen would be able to enjoy procedural protections Parliament has afforded, and a right enjoyed under international law. There must be some other reason for the exercise of the power that undoubtedly exists, if it is not to be seen to be exercised capriciously and arbitrarily.
103. Seen in this light, it is probably open to me to conclude that the decision of the delegate was perverse, illogical and unreasonable in the Wednesbury sense. But it is unnecessary for me to reach such a dramatic conclusion. The first delegate was exercising a discretionary power. The power had to be exercised lawfully. It is well established that a decision maker will fall into jurisdictional error if he or she fails to give any meaningful consideration to something that the decision maker is bound to consider: NAJT v Minister for Immigration [2005] FCAFC 134 at [212]. The delegate was bound to consider whether the exercise of power was "appropriate". That consideration, in the context of this case, where the applicants presented no apparent risk should they have re-entered Australia, was manifestly inadequate.
That establishes jurisdictional error.Mr Godwin argues that, on the above reasoning, it is advanced on behalf of the Applicant the same irrational reasoning occurred in the matter before this Court. What then falls under the next heading in relation to whether or not there was, in fact, an incorrect answer does not bear upon the irrationality issue that his Honour was considering in the previous paragraphs. It was the fact that the Delegate stopped the Applicant coming to Australia for that reason alone, without any other additional reason as to why it would not be appropriate to return to Australia. That calls the decision to be found to be a jurisdictional error.
Respondent’s Submissions on Grounds 2(e) and 2(f)
Ms Francois in her written submissions maintains for the reasons given above the argument advanced under this ground must fail. In oral submissions Ms Francois indicates that in the decision in Singh & Anor v Minister for Immigration & Anor (supra) his Honour indicates that there was a lack of general consideration by going through the rubric of saying that if there is an invalidity to cancel in Australia and an invalidity to cancel overseas, there must be some material to satisfy him that the approach adopted was appropriate. In considering the decision as a whole his Honour was satisfied that the delegate in that matter was not being genuine. His Honour makes that decision in the context of all the matters that he is aware of and has dealt with. Ms Francois contends that Mr Godwin has Chhuon v MIMIA (supra) and particularly [61] where Mr Godwin advances the argument that his Honour Mansfield J has two strands of reasoning. Ms Francois submits that is not correct. There are two parts of evidence that lead to a conclusion that there was no genuine consideration. In the passage relied upon by Mr Godwin it states:
…Reasons given for the second decision, and the failure to address the material submitted by the applicant in response to a notice under s.129 except by a generic and fleeting reference, indicate the delegate did not really address what was required…
Ms Francois submits that the reference is to two lots of evidence that indicate one thing, being that the delegate did not really address what was required. It is not through two separate grounds of review but rather two strands of reasoning that his Honour comes to the conclusion of no genuine consideration. It is not that the reasons by themselves are sufficient to give rise to judicial review not that the illogicality and the way in which the delegate’s reasons are separate, it’s that both those things lead to the one conclusion of it not being a genuine consideration.
Consideration – Grounds 2(e) and 2(f)
In respect to this ground I have formed a view that these issues have been clearly canvassed and ventilated in the earlier grounds. However, I note the reliance by Mr Godwin on the decisions in Minister for Immigration & Citizenship v Kumar (supra) and Applicant VEAL of 2002 v MIMIA (supra) and the Federal Court decision in Harrington v Andrews, MP, Minister for Immigration & Citizenship (supra) which all address the issue that even though there is non-disclosable information, provided the Delegate does not breach the confidence of that information the Delegate has to provide the substance of the information contained in those documents. As discussed above the Delegate has indicated to the Applicant that the non-disclosable information reveals that his relationship with his sponsor, being a spousal relationship, had ceased at some point prior to the issue of his permanent visa. In the absence of access to the information it can only be assumed or speculated as to nature and content of that non-disclosable information. Beyond the two basis elements relating to the breakdown of the relationship and the time that had occurred relevant to the grant of the permanent visa the balance of the information may be so specific as to deny any attempt to summarise the content without exposing the author or authors. The very positive statement by the Delegate of the situation together with the complete absence of any qualification or qualifying words which suggest that the information was supplied by a party that had detail knowledge of the relationship and that the request for confidentiality would be reinforced by this proximity.
In the absence of the non-disclosable information it does not permit me to be satisfied that the decision maker is not genuine. I have been given a number of authorities in respect to the process to be adopted in a situation when non-disclosable information is present but these have to be distinguished on the facts. There are numerous scenarios that come to mind that would allow the quoted authorities to be followed and the decision maker’s process to be questioned however there are numerous other scenarios that can be envisaged where any attempt to summarise or provide peripheral material would immediately lead to a breach of the non-disclosable information restriction. In these circumstances I’m not in a position to be satisfied that the decision maker was not genuine and this ground cannot be sustained and should be dismissed.
Conclusion
I am satisfied that none of the grounds of review contained in the Applicant’s Amended Application filed on 20 May 2011 seeking judicial review of the decision of the Delegate of the Minister can be sustained. Consequently, the Amended Application should be dismissed and the Applicant should pay the Respondent’s costs.
I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 27 August 2012
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