Kautoga v Minister for Immigration and Anor

[2020] FCCA 1385

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUTOGA v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1385

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal to cancel a Temporary Work Visa – whether the Tribunal erred in failing to consider that the Applicant might be subject to a bar of up to three years on applying for another visa under the Migration Regulations 1994 Schedule 4, clause 4013 (PIC4013) – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48, 116

Migration Regulations 1994 (Cth), Sch 4 cl.4013, Sch 8 cls.8107 and 8303

Cases cited:

Hands vMinister for Immigration and Border Protection (2018) 267 FCR 628; [2018] FCAFC 225
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Applicant: RATU PIO TIKOVAKAYALEWA KAUTOGA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 762 of 2017

Judgment of: Judge Barnes

Hearing dates:

17 April 2019

21 November 2019

Date of Last Submission: 9 December 2019

Delivered at: Sydney

Delivered on: 2 June 2020

REPRESENTATION

Counsel for the Applicant: Mr Poynder (direct access)

Counsel for the Respondents: Mr Kay Hoyle

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 762 of 2017

RATU PIO TIKOVAKAYALEWA KAUTOGA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the First Respondent to cancel a Subclass 401 Temporary Work (Long Stay Activity) visa. 

2. After an initial visit to Australia from December 2012 to March 2013, the Applicant, a citizen of Fiji, arrived in Australia in May 2013 as the holder of a Subclass 401 visa in the sports stream based on sponsorship by a rugby union club in Sydney.  On 16 January 2014, Mr Kautoga was granted a further Subclass 401 visa based on sponsorship by a rugby union club in Queanbeyan.  Mr Kautoga’s wife was also granted a Subclass 401 visa as a member of his family.  Mr Kautoga’s visa was to expire in December 2015.  It was subject to certain conditions including, relevantly, conditions 8107 and 8303. 

3. On 2 July 2014 Mr Kautoga was arrested by NSW police and charged with two counts of sexual intercourse without consent, one count of assault with an act of indecency and one count of assault occasioning actual bodily harm.  The charges were alleged to relate to three incidents in early 2013 involving three different women.

4. Mr Kautoga’s visa was cancelled by a delegate of the First Respondent on 2 July 2014 on the basis that he had not complied with condition 8303 to which his visa was subject. Condition 8303 in Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations) provided that “the holder must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community”.

5. The Subclass 401 visa held by Mrs Kautoga was automatically cancelled in consequence, pursuant to s.140(1) of the Migration Act 1958 (Cth) (the Act).

6. Mr Kautoga sought review of the delegate’s decision by the former Migration Review Tribunal (the predecessor to the Administrative Appeals Tribunal).  The Tribunal affirmed the decision to cancel his visa on the basis that he had breached condition 8107 of his visa which, relevantly, imposed restrictions on the work that could be undertaken by a visa holder, including preventing the visa holder from working for an employer other than his or her sponsor.  That decision was quashed on judicial review.  After remittal, the Tribunal (now the Administrative Appeals Tribunal) affirmed the cancellation on 6 November 2015 on the basis that there had been a breach of condition 8107.  Mr Kautoga again successfully sought judicial review.  The matter was remitted by consent.

7. On further remittal, the Tribunal was constituted with the division head and a senior member of the Migration and Refugee Division.  The Tribunal recorded that this was because the matter had the potential to raise significant issues about the application and operation of the cancellation provisions in circumstances where an applicant had been charged with a criminal offence, but not convicted, and where the term of the visa that was cancelled would have expired by the effluxion of time.  Mr Kautoga’s visa would have expired on 31 December 2015, had it not been cancelled on 2 July 2014. 

8. Mr Kautoga pleaded not guilty to the criminal charges in October 2014.  He was committed to stand trial.  The trial was delayed on a number of occasions.  It had not taken place at the time of the Tribunal decision. 

9. On 6 February 2017 the Tribunal affirmed the decision to cancel the visa.  It is that decision that is the subject of these proceedings. 

The Tribunal Decision

1. In its reasons, the Tribunal referred to the background to the application, Mr Kautoga’s immigration history, the earlier proceedings, the legislative framework, the procedures it had adopted and to submissions made by Mr Kautoga’s former representatives at various times. 

2. The Tribunal was satisfied that the review should focus on s.116(1)(b) of the Act. It provides that the Minister may cancel a visa if satisfied that the holder has not complied with a condition of the visa.

3. The Tribunal pointed out that if the ground for cancellation in s.116(1)(b) was made out, the decision-maker had a discretion whether to cancel the visa having regard to all the relevant circumstances. It noted that the Act and Regulations did not specify any mandatory considerations that should be taken into account by the decision-maker when exercising this discretion and that the Minister had not issued any directions under s.499 of the Act as to factors that had to be considered. Nonetheless, it observed that the Tribunal should have regard to all relevant matters, including, but not limited to, matters identified in the Department’s Procedures Advice Manual (PAM3). It identified matters that it saw as of relevance to how the discretion should be exercised.

4. In addition to a discussion of procedural issues and the powers of the Tribunal (matters that are not in issue in these proceedings), the Tribunal outlined factual matters relevant to the review which had been addressed in submissions, documents or statements provided by Mr Kautoga and his representatives. 

5. The Tribunal found that the Subclass 401 Temporary Work visa granted to Mr Kautoga on 16 January 2014 involved sponsorship by the Queanbeyan Rugby Union Football Club (QRUFC) and was to be valid until 31 December 2015.  It was subject to conditions 8107 and 8303.

6. The Tribunal recorded that after the grant of the visa Mr Kautoga had initially played rugby with QRUFC, but had sustained an injury in about March 2014.  He had told the Migration Review Tribunal that he continued to attend training and matches although he could not play. 

7. While the holder of the visa, Mr Kautoga had worked as a courier with an employer other than his sponsor QRUFC.  He asserted that this was agreed with QRUFC because he had not been paid by the club to play rugby.  He claimed that the Department was aware of this at the time his Subclass 401 visa was granted and that he therefore believed that he was entitled to work for an employer other than QRUFC.

8. The Tribunal referred to Mr Kautoga’s arrest in July 2014, to the four sexual assault offences alleged to have taken place in Sydney between January and March 2013 and to the fact that his visa had been cancelled on the basis of a breach of condition 8303.

9. The Tribunal recorded that Mr Kautoga had initially been refused bail, but was subsequently granted bail subject to conditions.  However, upon release he had been taken into immigration detention.  In 2015, while in detention, Mr Kautoga had committed an offence of destroying Commonwealth property to which he had pleaded guilty. 

10. After several applications (and judicial review applications) Mr Kautoga was granted a Bridging visa.  The Tribunal recorded that one of the matters raised in support of the Bridging visa application was that Mrs Kautoga’s sister (who had lived in Australia) had recently died and before her death had asked that Mr and Mrs Kautoga look after her children. 

11. The Tribunal acknowledged that Mr Kautoga had denied all the criminal charges against him and that under the criminal justice system he was innocent until proven guilty.  It recorded that his trial was due to commence on 26 February 2017. 

12. Based on the information provided to it, the Tribunal accepted that Mr and Mrs Kautoga were living in his late sister-in-law’s house providing support to her five children and three grandchildren.  At the time of the Tribunal decision two of the five children (including a nephew of the late sister who was said to have been informally adopted by the late sister) were under 18.  In addition, the oldest daughter of the late sister had three young children.  The Tribunal observed that there was no evidence as to why the late sister’s oldest daughter, who was 22 years old, could not look after her own three children.  Nonetheless, it accepted that the presence of Mrs Kautoga, at least, was likely to be a support to her late sister’s family.

13. The Tribunal described a submission to it by Mr Kautoga’s former representative that the best interests of the children should be a primary consideration in relation to the Tribunal’s exercise of its discretion as to whether to cancel the visa and that it was in the best interests of the children for Mr and Mrs Kautoga to remain in Australia.  It had been submitted that this would be facilitated by the Tribunal setting aside the original decision to cancel the visa because, even though the visa had expired, if the cancellation was set aside Mr Kautoga would not be “barred” from making a new visa application in Australia and may be entitled to a Bridging visa giving him permission to work pending consideration of any such new application.  It had also been submitted to the Tribunal that while possible applications for a Parent or Carer visa would be likely to fail because Mr Kautoga would not satisfy the criteria for either visa, this approach would delay the matter until his criminal trial had been finalised.  It had been suggested to the Tribunal that if

    
    

    Mr Kautoga were to be acquitted, any application for ministerial intervention would be more favourably received. 

14. The Tribunal accepted that Mr Kautoga had worked as a courier while sponsored by QRUFC, that he sustained an injury but continued to train and watch rugby games with his club and that he believed that he was entitled to work.  It also accepted that he had committed an offence of destroying Commonwealth property whilst in immigration detention, but noted that the court had not found the offence sufficiently serious to warrant that a conviction be recorded.  An 18 month good behaviour bond and a $500 fine had been imposed.

15. The Tribunal considered the nature of the review. It was of the view that s.116(1)(b) of the Act contemplated the consideration of factual matters prior to and at the time of cancellation and that whether there was non-compliance with a visa condition must be assessed at the time the cancellation decision was made, whereas the discretion to cancel the visa must be assessed at the time of the Tribunal’s review decision.

16. The Tribunal remarked that the review of a visa cancellation became complicated where there was a significant delay between the time of cancellation and the review, particularly where, as here, the visa would have expired by the time of the review decision.  It noted that in such a case setting aside the cancellation decision would not alter the fact that the visa had expired, or would have expired if it had not been cancelled, and that the visa holder would remain unlawful and subject to detention and removal from Australia unless another visa was in effect or granted. 

17. The Tribunal considered whether a ground for cancellation existed. It noted that the delegate had cancelled the visa under s.116(1)(b) of the Act because he was satisfied that Mr Kautoga had breached condition 8303. The delegate had not identified a breach of condition 8107 as a ground for cancellation or considered s.116(1)(e) of the Act (which at the time of cancellation required an established risk to the health, safety or good order of the Australian community, but which was subsequently amended).

18. However the Tribunal was of the view (explained elsewhere in its decision) that it was not bound by the delegate’s findings and, “subject to procedural fairness, may raise a new ground as the basis for cancellation provided it is based on the same exercise of power”. The Tribunal also noted that, as had been advised to Mr Kautoga and his former representative, it had not proceeded on the basis of cancellation under s.116(1)(e) of the Act.

19. The Tribunal found that Mr Kautoga had not breached condition 8303 at the time of cancellation, based on the then pending sexual assault charges.  It found that the charges of July 2014 (in relation to alleged events in 2013) did not of themselves give rise to a breach of condition 8303 because that condition was prospective in nature and only applied from 16 January 2014 (the date on which the visa was granted).  The offences were alleged to have taken place prior to the grant of Mr Kautoga’s visa and the imposition of condition 8303.  The Tribunal also found that the criminal offence committed by Mr Kautoga in detention occurred after the time of cancellation, when condition 8303 was no longer in effect, but that the existence of that offence may be relevant to the exercise of discretion.

20. The Tribunal considered whether there was a breach of condition 8107 at the time of cancellation of Mr Kautoga’s visa.  Condition 8107 relevantly provided in paragraph 8107(4)(e) that the visa holder must not engage in work or an activity for an employer other than the employer identified in the most recent nomination in which the visa holder was identified.

21. The Tribunal had regard to Mr Kautoga’s written statement of 24 August 2014 in which he acknowledged that while holding the visa he had worked in casual jobs, sometimes two to three days at a time and sometimes once a week, and that after his injury he worked with his wife assisting with courier deliveries. 

22. The Tribunal noted that on 26 August 2014 Mr Kautoga’s then representative had conceded that Mr Kautoga had breached condition 8107(4)(e), but had submitted that the breach had occurred in extenuating circumstances and that the visa had been granted by the Department with the knowledge that Mr Kautoga would be working outside QRUFC.  It referred to an October 2015 submission that there was uncertainty about the “legal impact” of circumstances in which the Department was on notice that multiple employers may be involved in Mr Kautoga’s sponsorship.  It had also been submitted that, even if there was a breach, the question of whether the breach was intentional was relevant to the exercise of the discretion.  The Tribunal observed that this submission was consistent with the submission made to it by the Applicant’s representative in September 2016.

23. The Tribunal rejected the submission that there was any legal uncertainty as to whether condition 8107(4)(e) had been breached in the circumstances of this case, but accepted that the fact the breach was unintentional may be relevant to the exercise of its discretion. 

24. The Tribunal was of the view that condition 8107(4)(e) was not ambiguous and was clear in its terms in providing that the visa holder must not engage in any work or activity with an employer other than the employer identified in the most recent nomination.  In this case that was QRUFC.  The Tribunal noted that there was no other employer identified.  It found that there was a clear breach of condition 8107(4)(e).

25. The Tribunal accepted that the Department was on notice of a letter of 16 January 2014 from QRUFC to the effect that the club would arrange employment for Mr Kautoga with a local business in the Queanbeyan area, but observed that the letter did not state that employment by other employers would be involved.  However it accepted that there may have been some confusion on Mr Kautoga’s part that may be relevant to the exercise of the discretion, but not to the question of whether there was a breach.

26. The Tribunal found that Mr Kautoga had engaged in work or an activity for an employer (within reg.2.72A(8) of the Regulations) other than the employer identified in accordance with reg.2.72A(7)(a) in the most recent nomination in which Mr Kautoga was identified. It found that Mr Kautoga had breached condition 8107(4)(e) and hence was satisfied that the ground for cancellation in s.116(1)(b) of the Act existed.

27. As s.116(1)(b) did not require mandatory cancellation, the Tribunal considered whether the power to cancel the visa should be exercised. The Tribunal acknowledged that PAM3 identified matters that should be considered by decision-makers in the exercise of the discretion and found that while not all were relevant to the facts of the case, some were apposite.

28. The Tribunal accepted that the purpose of Mr Kautoga’s travel to and stay in Australia was to play rugby, relevantly with QRUFC, until 31 December 2015.  However it observed that this contract had expired and that Mr Kautoga’s visa would have expired by 31 December 2015 had it not been cancelled.  Hence the Tribunal found that this matter (the purpose of travel to and stay in Australia) did not weigh against cancellation of Mr Kautoga’s visa. 

29. The Tribunal acknowledged that, apart from the finding that Mr Kautoga had not complied with condition 8107(4)(e), there was no evidence that he had breached any other conditions.  Given that Mr Kautoga’s visa had been cancelled within six months of it being granted, the Tribunal was of the view that little could be drawn from this, other than that Mr Kautoga had generally complied with the conditions of his visa, but not with all conditions.  It accepted that the breach was unintentional.  The Tribunal found that these matters weighed against cancellation. 

30. The Tribunal stated that other relevant matters referred to in PAM3 were hardship, mandatory legal consequences of the cancellation (including consequential cancellations), international obligations (such as non-refoulement and the best interests of children, which were to be treated as a primary consideration) and also any other relevant matters.

31. The Tribunal identified (at paragraph 55 of its reasons) the following nine matters as relevant to those issues and therefore to the exercise of its discretion:

    (1) Mrs Kautoga’s visa is cancelled as a consequence of the cancellation of Mr Kautoga’s visa under the provisions of s 140 of the Migration Act;

    (2) If Mr Kautoga’s visa remained cancelled, in the absence of the grant of another visa, both Mr and Mrs Kautoga would be unlawful and may have to leave Australia; unless they make an application for another visa or are granted another visa;

    (3) Even if the decision to cancel the visa was set aside, in the absence of the grant of another visa, both Mr and Mrs Kautoga would be unlawful due to the expiring of the Sports visa and would have to leave Australia;

    (4) Even if the visa remained cancelled Mrs Kautoga would not be barred from making an application for a visa in Australia;

    (5) Mr Kautoga could apply for Ministerial intervention at any time based on the asserted needs and interests of [his sister-in-law’s] family, some of whom include children, irrespective of whether the visa remains cancelled;

    (6) Mr Kautoga’s visa has expired and the only utility in setting aside the decision after its expiry would be to remove any legislative bar or disadvantage to Mr Kautoga of his visa having been cancelled under the Migration Act;

    (7) There was no visa identified by Mr Kautoga or his representative that Mr Kautoga could apply for in Australia that would meet the requirements to allow him to remain in Australia to assist [his sister-in-law’s] family;

    (8) Mr Kautoga has been sentenced for a criminal offence while in detention, although the nature of his offending was not considered sufficiently serious to warrant a conviction being recorded; and

    (9) There is no evidence to suggest that cancellation would result in the removal of Mr Kautoga to a country where he would face persecution or significant harm. 

1. The Tribunal acknowledged that the first two of these factors weighed against cancellation, but found that the matters referred to in paragraphs 3 to 9 either weighed in favour of cancellation or were neutral.  It found that the matters in paragraphs 3, 5, 6 and 7 were of particular relevance to this case.

2. The Tribunal accepted the claims of support to Mr Kautoga’s sister’s family and stated that it had considered the best interests of the children as a primary consideration.  However it found it relevant to this claim to consider whether the cancellation had the effect of removing this support or, conversely, whether setting aside the cancellation would have the consequence of allowing this support to continue.  It found that neither would be the case. 

3. The Tribunal acknowledged that a further issue was the impact on Mrs Kautoga, but pointed out that if the decision to cancel Mr Kautoga’s visa was set aside and substituted with a decision that the visa should not be cancelled, in the absence of another visa Mrs Kautoga would still have to leave Australia. It also observed that, because the visa had expired, but for the provisions of s.48 of the Act (which restricts certain onshore visa applications), the impact would be the same, regardless of whether the visa remained cancelled or the cancellation was set aside.

4. In paragraph 57 of its reasons the Tribunal acknowledged that s.48 of the Act provided that certain applicants who had their visas cancelled may only apply in Australia for certain classes of visas (as prescribed in reg.2.12 of the Regulations). It pointed out that otherwise visa holders whose visas had been cancelled “may apply for a visa offshore, although relevantly there may be a time restriction of three years preventing the grant of certain visas for Mr Kautoga”, that Mrs Kautoga would not be similarly restricted and that a grant of a fresh visa to Mr Kautoga may be made within three years if there were compelling reasons affecting Australian citizens to warrant the grant.

5. The Tribunal continued at paragraphs 58 and 59 of its reasons:

   58. This issue is significant because it would weigh against cancellation but cannot be usefully considered in the abstract. The question is whether there is any identifiable hardship or disadvantage arising from the cancellation or indeed advantage in setting aside the cancellation decision and, in particular, whether there is any visa that Mr Kautoga could now apply for in Australia that would be barred as a consequence of the cancellation. At the directions hearing, [Mr Kautoga’s representative] could not identify any visa other than a Parent or Carer visa, neither of which he conceded would apply to Mr Kautoga. It was also conceded that Mr Kautoga was not barred from making an application for Ministerial intervention and that this could have been made at any time. It was, however, submitted that such application would be unlikely to succeed while Mr Kautoga has serious criminal charges pending. Relevantly, these charges are expected to be resolved within the two months. The oral submission made was to the effect that it would be preferable to delay the hearing or to set aside the cancellation to preserve Mr Kautoga’s options to remain in Australia. This submission was highly speculative and in the absence of information identifying hardship or indeed anything other than a speculative advantage or disadvantage, this matter does not weigh against cancellation. 

   59. The submission in effect seeks to identify the visa applications that cannot succeed as a mechanism to obtain a bridging visa and permission to work and delay an unfavourable outcome pending Mr Kautoga’s criminal trial.  The proposition of setting aside the cancellation to allow Mr Kautoga to make an application for a visa that has no credible basis for the purposes of delay cannot be a justification to support the exercise the (sic) discretion in Mr Kautoga’s favour.  In this regard we note that there are other options available, for instance law enforcement agencies may apply for a criminal justice stay certificate or warrant or Mr Kautoga could apply for Ministerial intervention on this basis.

   (error in original)

6. In conclusion, the Tribunal observed that the issue that gave rise to the cancellation was the serious sexual assault charges that had been laid against Mr Kautoga in July 2014 relating to conduct that was alleged to have occurred prior to the grant of the Subclass 401 visa in issue. It acknowledged that the delegate had not proceeded on the basis of s.116(1)(e), but found that the delegate had “wrongly” proceeded on the basis of a breach of condition 8303.  The Tribunal continued (at paragraph 60 of its reasons):

   … Given the imminent criminal trial which will determine Mr Kautoga’s guilt or innocence and the fact the visa has expired, the Tribunal has not proceeded on this basis.  We have nonetheless found there was a breach of a visa condition and that the discretion to cancel is therefore enlivened.  Mr Kautoga’s representatives submitted that a reason to exercise the discretion in favour of Mr Kautoga and set aside the cancellation decision would be to avoid hardship to Mr and Mrs Kautoga and to [the sister-in-law’s] family.  However, for the foregoing reasons there is no credible evidence or submissions pointing to this, other than the submissions made by Mr Kautoga’s representative referred to at [22(4)] and [58].  As already noted, we reject these submissions for the reasons set out at [58] and [59].             

7. The submission referred to in paragraph 22(4) of the Tribunal’s reasons is described at [22] above. Paragraphs 58 and 59 of the Tribunal decision are set out at [45] above.

8. The Tribunal concluded that, considering the circumstances as a whole, Mr Kautoga’s visa should be cancelled.  It affirmed the decision to cancel Mr Kautoga’s Subclass 401 visa.  It found that it had no jurisdiction with respect to Mrs Kautoga. 

These Proceedings

1. Mr Kautoga sought review by application filed on 13 March 2017.  Mrs Kautoga is not a party to these proceedings.

2. At the time of the hearing Mr Kautoga (who was represented by counsel on a direct brief basis) relied on an amended application.  In light of issues that arose during the hearing, I made orders giving the Applicant leave to file and serve a further amended application and further submissions.  Mr Kautoga filed a further amended application on which he now relies.  He did not take the opportunity to file post-hearing written submissions. The First Respondent filed post-hearing written submissions in accordance with the orders.  The Applicant did not file any written submissions in reply.

3. The only ground of review is now as follows:

   The second respondent failed to complete its task of reviewing the decision of the first respondent when it failed to consider or to make any findings in relation to a relevant consequence of the cancellation of the applicant’s visa; namely, that the applicant might be barred for up to three years from applying for a visa to return to Australia by reason of Public Interest Criterion 4013(1)(a) and (2)(a) in Schedule 4 to the Migration Regulations 1994.

   Particulars

   The second respondent failed to give real consideration to the human consequences arising from the possibility that the applicant would be barred from applying to return to Australia for up to three years, with particular reference to the effect of such a bar on the applicant’s wife and her family, and the five children aged 4, 15, 17, 19 and 20 years entrusted into the care of the applicant and his wife by the sister of the applicant’s wife.    

4. In support of this ground (which as previously drafted was unparticularised and suggested that a relevant consequence of cancellation was that the Applicant and his wife “would effectively be barred for three years from applying for a visa”) counsel for Mr Kautoga drew attention to the criteria for a Subclass 401 visa at the relevant time, as then set out in Schedule 2 to the Regulations.  Clause 401.611 required that a Subclass 401 visa granted to a primary visa holder must be subject to condition 8107.

5. Condition 8107 in Schedule 8 to the Regulations relevantly provided that:

   (4) …  the holder must not:

   …

   (e) engage in work or an activity for an employer other than the employer identified … in the most recent nomination in which the holder is identified.

6. It was not disputed that Mr Kautoga was only authorised to work for the employer identified in the most recent nomination and that by working for another employer he was in breach of condition 8107, as had been found by the Tribunal.  

7. The Applicant observed that under s.116(1)(b) of the Act the Minister “may” cancel a visa if the visa holder has not complied with a condition of the visa.  It was acknowledged that there were no prescribed matters to which the decision-maker must have regard in considering whether to cancel a visa under this provision, but pointed out that PAM3 stated that:

   It is policy that delegates take into account the following ten matters, if relevant, when deciding whether to cancel a visa; they should consider each of these nine matters, even if not specifically raised by the visa holder.  The matters that should be considered evolved from a body of case law relevant to visa cancellations and are designed to afford fairness to a visa holder.  The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting.  Generally, matters must be weighed in favour of the visa holder, not against the visa holder …

8. Counsel for the Applicant referred to the fact that one of the matters listed in PAM3 was: “Whether there are mandatory legal consequences to a cancellation decision”. In pre-hearing submissions it was suggested that Public Interest Criterion 4013 (PIC4013) in Schedule 4 to the Regulations would apply to Mr Kautoga if his visa remained cancelled.

9. PIC4013 is as follows:   

   (1)  If the applicant is affected by a risk factor mentioned in subclause (1A), (2), (2A) or (3):

   (a)  the application is made more than 3 years after the cancellation of the visa or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or

   (b)  the Minister is satisfied that, in the particular case:

   (i)  compelling circumstances that affect the interests of Australia; or

   (ii)  compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa within 3 years after the cancellation or determination.

   (2)  A person is affected by a risk factor if a visa previously held by the person was cancelled under section 116, 128 or 133C of the Act:

   (a)  because the person was found by Immigration to have worked without authority; or

   (b)  if the visa was of a subclass specified in Part 2 of this Schedule—because the person did not comply with a condition specified in that Part in relation to that subclass; or

   (c)  if the visa was a Subclass 773 (Border) visa and, at the time of grant of the visa, the person was apparently eligible for a substantive visa of a subclass specified in Part 2 of this Schedule—because the person did not comply with a condition specified in that Part in relation to that subclass of substantive visa; or

   (ca)  because the person held a student visa and the Minister was satisfied that a ground mentioned in paragraph 116(1)(fa) of the Act applied to the person; or

   (d)  because the Minister was satisfied that a ground prescribed by paragraph 2.43(1)(ea), (i), (ia), (j), (k), (ka), (kb), (kc), (m), (o), (oa), (ob), (s) or (t) applied to the person.

10. The Applicant submitted that as his visa had been cancelled under s.116 of the Act because he had been found to have worked “without authority” (within PIC4013(2)(a)), he was affected by a risk factor, thus enlivening the restrictions in PIC4013(1).  In pre-hearing written submissions counsel for the Applicant submitted that, accordingly, a “mandatory legal consequence” of the cancellation decision was that Mr Kautoga was prevented from applying for a further visa for three years unless he could satisfy the Minister that there were relevant compelling or compassionate circumstances. 

11. It was submitted that in finding (at paragraph 57 of its reasons) that “relevantly there may be a time restriction of three years preventing the grant of certain visas” for Mr Kautoga, the Tribunal had erred in that it either did not understand the effect of PIC4013 or was not referring to PIC4013, because a bar under that provision would be mandatory in this case and Mr Kautoga would be prevented from applying for a visa to return to Australia within three years. 

12. The Applicant submitted that the Tribunal had failed to engage with PIC4013 in failing to consider the impact of the imposition of a three year “bar” on an application by him to return to Australia.  It was contended that the evidence before the Tribunal was that Mr Kautoga and his wife were living with and caring for five children of his wife’s then recently deceased sister.  According to the Tribunal, at the time of the Tribunal decision the children were aged 16, 19, 20 and 22 and there was an informally adopted nephew aged 6.  There was also said to be evidence before the Tribunal that these children had been entrusted by Mrs Kautoga’s late sister to Mr and Mrs Kautoga because they were most closely bonded to them, that Mr Kautoga was seen by the children as a father figure (their natural father having died) and that there was no other family member who could look after the children.  It was suggested that there was also a “cultural element” to the entrusting of the children to Mr and Mrs Kautoga, given the close involvement of the extended family in the decision that the children should stay with the Kautogas. 

13. The Applicant submitted that had the Tribunal engaged with the impact of the imposition of a three year bar, it would have addressed the fact that the children would lose their carer and father figure against the wishes of their late mother.  It was submitted that the prospect of a three year wait before Mr Kautoga could apply to return to Australia was highly significant in this case and yet the Tribunal had made no reference to this consequence.  It was acknowledged that there was some consciousness on the part of the Tribunal as to the effect of PIC4013, but submitted that it either did not look closely at PIC4013 or that it had  misunderstood the effect of this provision.

14. Counsel for Mr Kautoga conceded at the hearing that Mrs Kautoga would not be subject to a PIC4013 bar (as had been pleaded) and also that the effect of PIC4013 was not to prevent or make invalid a visa application, but rather to limit the grant of a visa to a person who was affected by a risk factor.  It was also acknowledged that if PIC4013 applied, the Minister may exercise a discretion to grant a visa within three years of cancellation under PIC4013(1)(b) if satisfied that compelling or compassionate circumstances existed.  It appeared to be conceded that the Tribunal was not incorrect to state that there may be a time restriction of three years preventing the grant of certain visas to Mr Kautoga if the visa cancellation was upheld.

15. However, the Applicant maintained that what was “missing” from the Tribunal’s consideration of its discretion was any discussion of what was said to be the “very real and serious” effect that the removal of the Applicant from Australia and his inability to return for at least three years would have on the family, in particular on the children and his wife. 

16. The Applicant submitted that in failing to give real consideration to the human consequences of cancellation of the Applicant’s visa, the Tribunal had erred in the manner discussed by Allsop CJ in Hands vMinister for Immigration and Border Protection (2018) 267 FCR 628; [2018] FCAFC 225 at [47]-[52].

17. The Applicant also referred to the remarks of Allsop CJ (with whom Markovic and Steward JJ agreed) in Hands at [3] that:

    … where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

18. In this case there was said to have been a failure by the Tribunal to take into account the representations to it about the effect of the removal of the Applicant from Australia on the children who had been entrusted into his care and on his wife and the extended family.   The Applicant contended that even though the Tribunal may have been referring to the effect of PIC4013 in paragraph 57 of its reasons, this was no more than a mechanical or formulaic reference which completely failed to engage with the human consequences of the removal of the Applicant from Australia.  It was submitted that in failing to engage with such consequences when determining whether to exercise its discretion, the Tribunal had failed to carry out its task.

19. The First Respondent pointed out that the legislation did not expressly identify any mandatory consideration that must be taken into account in the exercise of the discretion to cancel the visa under s.116(1) of the Act, although it was accepted that a range of considerations may be relevant in relation to how a decision-maker should exercise that discretion. It was also noted that there was no mandatory ministerial direction pursuant to s.499 of the Act in respect of the matters to be considered. Further, the guidelines in PAM3 were said to contain matters which should in an appropriate case be given weight, but were not legally binding and could not be understood as relevant considerations in the Peko-Wallsend sense (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40; Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 645; [1979] AATA 179; and El Ess v Minister for Immigration and Multicultural Affairs (2004) 142 FCR 43; [2004] FCA 1038 at [45]).

20. In particular, the First Respondent submitted that, contrary to the Applicant’s pre-hearing submission, it was not a “mandatory legal consequence” of the cancellation decision that Mr Kautoga would be prevented from applying for a further visa for three years. 

21. The First Respondent submitted that the Tribunal had referred to and considered the fact that applicants who had a visa cancelled may apply offshore for another visa, but that there may be a time restriction of three years preventing the grant of certain visas to Mr Kautoga if his Subclass 401 visa remained cancelled.  This was said to reflect what the impact of PIC4013 would be if it was a criterion for a subclass of visa for which Mr Kautoga made a future application.  It was pointed out that the Tribunal had noted that this issue was significant because it might weigh against cancellation but, as explained in paragraph 58 of its reasons, had found that this issue could not usefully be considered in the abstract. 

22. It was contended that the ground of review in the amended application did not reflect the actual reasons of the Tribunal.  The First Respondent submitted that the Tribunal’s reasons clearly indicated that it considered the consequences of leaving the cancellation decision in place, including that the Applicant and his wife would be unlawful non-citizens because at the time of the Tribunal decision they would no longer have a subsisting visa (as it would have expired).  It was said to be inaccurate to suggest that the Tribunal had found that there were no consequences because the visa had already expired.  Rather, the Tribunal considered the consequences of cancellation in light of the fact that because the visa would have expired by the effluxion of time, the Applicant would be unlawful even if the cancellation was set aside. 

1. At the hearing counsel for the First Respondent contended that in oral submissions counsel for the Applicant had either expanded or conflated what was actually pleaded in the ground in issue.  It was reiterated that it was not a mandatory legal consequence of cancellation or of PIC4013 that an applicant was prevented from making a visa application.

2. The First Respondent submitted that the Tribunal had been correct to proceed on the basis that there was no “necessary outcome” that the Applicant would in fact be prevented from returning to Australia for a period of three years.  The applicable statutory provisions were said not to dictate such an absolute conclusion.

3. It was also submitted that the Tribunal was not in a position to determine whether the three year bar in PIC4013 would in fact be applied in relation to any future visa for which the Applicant might apply and that all it could reasonably do was to conclude that it may be the case that such a bar would apply (if Mr Kautoga applied for a visa subject to PIC4013).

4. In these circumstances, the First Respondent submitted that the aspects of the decision in Hands to which the Applicant referred, which had not, in any event, been the basis for that decision (see Hands at [42] and [52] per Allsop CJ), did not arise.

5. The First Respondent submitted that if the Applicant intended to reframe the case in some other way, this should be clarified in a further amended application and the parties should have the opportunity to file post-hearing submissions. 

6. At the hearing the First Respondent also submitted that even if the court was satisfied that a jurisdictional error was established on the basis contended for by the Applicant, the court should exercise its discretion not to grant relief as it would be futile.  This submission was put on the basis that in so far as PIC4013 imposed a three year restriction after the cancellation, it would no longer apply in this case as it was now some five years since Mr Kautoga’s visa was cancelled, so that he would no longer be subject to such a bar.  In other words, it was submitted that to the extent that there was any impediment to Mr Kautoga by reason of PIC4013 (assuming that it applied to any visa for which he might apply), it would not in fact operate as such a bar.  However counsel for the First Respondent also conceded that the issue of whether the exercise of the discretion to remit would be futile was complicated by the fact that on any reconsideration the Tribunal would consider afresh whether in all the circumstances the visa should be cancelled. This submission was not repeated in post-hearing submissions.

7. As indicated, after the hearing the Applicant filed a further amended application containing the ground of review as set out at [51] above. He did not file post-hearing submissions.

8. In post-hearing written submissions, the First Respondent addressed the amended ground of review on the basis that the Applicant now argued that the relevant consequence of the cancellation that the Tribunal had allegedly failed to consider was that he “might” be barred from applying for a visa.  In other words, the Applicant was understood to be contending that the Tribunal had failed to consider properly that there was a possibility that he may be placed in a position as the result of the cancellation of his visa where he would be unable to apply for a visa to return to Australia for a period of three years.  Such formulation was said to indicate that the Applicant had abandoned any suggestion that it was a “mandatory” consequence that he would be prevented from applying for any visa within three years of the cancellation.   

9. The First Respondent acknowledged that the particulars added to the ground of review alleged that the Tribunal had failed to consider the “human consequences arising from the possibility that the applicant would be barred from applying to return to Australia for up to three years” (emphasis added by the First Respondent).  However it was stated that, for the avoidance of any confusion, the First Respondent proceeded on the basis that this was a clear disavowal by the Applicant of any suggestion that the Tribunal had failed to consider or to meaningfully engage with the evidence about the Applicant’s relationship with the five children “as a stand-alone claim”. 

10. It was submitted that, on the Applicant’s claim as reformulated, the need to consider or to engage with the evidence about the children only arose because of the possibility that the Applicant may not be able to return to Australia for a period of three years.  The First Respondent submitted that this distinction was important and that for the Applicant to succeed he must demonstrate that the Tribunal’s treatment of the intermediate step (the possibility of being barred) was erroneous.  It was contended that if it was not erroneous, then no issue would arise about the Tribunal’s consideration of the evidence about the children. 

11. The Applicant did not take the afforded opportunity to reply to this submission. 

12. The First Respondent also reiterated that as the alleged mandatory consequence was not in fact mandatory on a proper construction of PIC4013, it also followed that the Applicant’s reliance on the reference in PAM3 to any mandatory legal consequence of cancellation fell away. It was submitted that given that the Applicant accepted that there were no prescribed matters to which the Tribunal had to have regard in considering whether to cancel a visa under s.116 of the Act, it was difficult to see what meaningful content could now be given to the phrase “relevant consequence” in the ground of review. 

13. The First Respondent suggested that, as now pleaded, the Applicant accepted that the Tribunal was correct when it stated at paragraph 57 of its decision in respect of the Applicant’s position that “there may be a restriction of three years preventing the grant of certain visas” to Mr Kautoga (emphasis added by First Respondent).

14. In light of this, the critical issue was said to be whether the “possibility” that Mr Kautoga “may” not be able to be granted a visa for a period of three years after the cancellation was a “relevant consequence” which the Tribunal had failed to consider.

15. It was submitted that the possibility of the Applicant not being in a position to be granted a visa for a fixed period was not in any sense a mandatory consideration, let alone in the sense understood in authorities such as Peko-Wallsend at 39-40. There was said to be no “obligation” on the part of the Tribunal to consider the possibility of the Applicant not being in a position to be granted a visa for a fixed period. 

16. In any event, it was pointed out that the Tribunal did consider the possibility that Mr Kautoga may be prevented from being granted a visa offshore for a period of three years after the cancellation of his visa but, critically, found (correctly) that this was simply a possibility (“a potential state of affairs”) that this “may” occur. 

17. There was said to be nothing before the court to support the view that PIC4013 would necessarily apply to every visa for which the Applicant could apply.  In addition, it was submitted that the abstract nature of the position that “may” apply to the Applicant meant that the Tribunal was neither able, nor obliged, to determine in what circumstances it “might” apply. It was submitted that such a speculative exercise was well beyond the reach of the Tribunal’s statutory task in exercising its discretion under s.116 of the Act, that it was for the Applicant to demonstrate that such a possibility would actually arise or would be likely to arise and that this had not been done.

18. The First Respondent submitted that it would only have been if the Tribunal had been confronted with meaningful evidence that the Applicant would necessarily be placed in the position of not being able to return to Australia for a period of three years after cancellation if he was removed from or departed Australia, that it would have been required to consider the consequence of that position.  In other words, it was contended that it was only if the Tribunal had made a finding that Mr Kautoga would be prevented from returning to Australia for a period of three years that it would have been “required” to consider the impact of that on the care of the children.

19. It was submitted that the Applicant had put forward no basis for the Tribunal to make such a finding, that the Tribunal did not need to consider the mere possibility that this may occur and that there was also no obligation on it to undertake any form of inquiry as to what combination of circumstances could lead to the possibility of PIC4013 actually applying.  This, in effect, was said to be the conclusion reached by the Tribunal at paragraphs 56 to 59 of its decision.

20. The First Respondent also submitted that Hands was not germane, because Hands said nothing about circumstances in which a decision-maker failed to engage with or give meaningful consideration to a claim.  It was also pointed out that the appellant in Hands would be sent to New Zealand if his visa cancellation was not revoked, so that on any view the impact of that event on him and his family had to be addressed.  This was said to differ from to the present case, in that the intermediate event (the Applicant being prevented from returning to Australia) was never more than a theoretical possibility. 

Consideration

1. As indicated, the Applicant did not file any post-hearing written submissions and took no issue with the basis on which the First Respondent understood the ground in the further amended application.  In particular, the Applicant, who was represented, did not respond to the submission that his approach amounted to a clear disavowal of any claim that the Tribunal had erred in failing to consider or meaningfully engage with the evidence about his relationship with the children as a stand-alone claim. 

2. In these circumstances I have proceeded on the basis that, under the reformulated ground of review, it is not contended that the Tribunal erred in failing to engage with the evidence about Mr Kautoga’s relationship with the children as a stand-alone claim.  Further, the Applicant does not dispute that, under the ground as pleaded, the issue of the need for the Tribunal to consider or engage with the evidence about the children would arise only if the Tribunal’s treatment of the possibility of Mr Kautoga being barred for up to three years by PIC4013 from applying for a visa to return to Australia was shown to be erroneous.  I agree with the First Respondent’s submissions that the Tribunal has not been shown to have erred in that respect.

3. First, the Tribunal understood that the matters identified in PAM3 were matters which should be considered if relevant, but were not legally binding or necessarily relevant considerations in the Peko-Wallsend sense.  It had regard to the fact that a relevant matter referred to in PAM3 was whether there were any mandatory legal consequences of the cancellation (and whether there would be any consequential cancellations).  In that context it accepted that under s.140 of the Act, Mrs Kautoga’s visa would be cancelled as a consequence of the cancellation of Mr Kautoga’s visa.  As the Applicant conceded at the hearing, and as reflected in the further amended application, there was otherwise no “mandatory” legal consequence that had to be considered by the Tribunal in the exercise of its discretion to cancel the visa. 

4. As indicated, the Tribunal accepted the claims of support to Mrs Kautoga’s sister’s family and stated that it had considered the best interests of the children as a primary consideration.  However it found it relevant to this claim to consider whether the cancellation had the effect of removing this support or, conversely, whether setting aside the cancellation would have the consequence of allowing this support to continue.  It found that neither would be the case. 

5. The Tribunal understood, correctly, that if Mr Kautoga’s visa remained cancelled, a consequence would be that in the absence of the grant of another visa, both Mr and Mrs Kautoga would be unlawful and “may” have to leave Australia, unless they applied for or were granted another visa.  It acknowledged that this factor weighed against cancellation.

6. However the Tribunal also understood, and had regard to, the fact that Mr Kautoga’s visa would have “expired” had it not been cancelled because it had been granted for a limited time which had passed.  The Tribunal recognised that in these circumstances, in the absence of the grant of another visa, both Mr and Mrs Kautoga would be unlawful due to the expiry of the visa and would have to leave Australia, although Mr Kautoga could apply for ministerial intervention “based on the asserted needs of [his sister-in-law’s] family, some of whom included children” at any time and irrespective of whether the visa had been cancelled.  In this way the Tribunal recognised and had regard to possible consequences of cancellation (or non-cancellation) of Mr Kautoga’s visa for the children.  

7. In these circumstances the Tribunal was of the view that the only utility in setting aside the cancellation decision after the expiration of the visa would be to remove any legislative bar or disadvantage to Mr Kautoga of his visa having been cancelled under the Act.  It again addressed the interests of the children in noting that Mr Kautoga had not identified any visa that he could apply for in Australia for which he would meet the requirements, so as to allow him to remain in Australia to assist his sister-in-law’s family. 

8. The Tribunal considered the impact of cancellation or setting aside the cancellation having regard to its express acceptance of the claim of support to Mr Kautoga’s sister-in-law’s family.  It stated that it had considered the best interests of the children as a primary consideration.  However it had regard to the practical consequences of cancellation or setting aside the cancellation where the visa in question had expired, in finding, in effect, that the cancellation would not remove support that could otherwise have continued and that setting aside the cancellation would not have the consequence of allowing such support to continue.  Similarly the Tribunal found that even if the cancellation was set aside, Mrs Kautoga would still have to leave Australia (if she had not made an application for a visa in Australia, as she was able to do). 

9. The Tribunal also addressed the future implications if Mr Kautoga’s visa remained cancelled. First, it considered the limits on on-shore applications under s.48 of the Act. Relevantly, while the Tribunal did not expressly refer to PIC4013, it also had regard to Mr Kautoga’s future circumstances at paragraph 57 in finding that:

   … visa holders who have had their visas cancelled may apply for a visa offshore, although relevantly there may be a time restriction of three years preventing the grant of certain visas for Mr Kautoga. Mrs Kautoga would not be similarly restricted and a grant in relation to Mr Kautoga may be made if there are compelling reasons affecting Australian citizens to warrant the grant. 

10. The parties understood this to involve a reference to PIC4013. 

11. It is the case that a criterion for the grant of a Subclass 401 visa was that the Applicant satisfy PIC4013 (under subclause 401.216(1)).  However, in so far as the Applicant maintained a submission that PIC4013 would apply in the future, that would only be so if the particular class or subclass of visa for which he made any fresh offshore visa application was one to which the criterion in PIC4013 applied.  The fact that PIC4013 was a criterion for the visa granted to Mr Kautoga in January 2014 meant that it had to be met for that visa to be granted, not that it would apply to either a subsequent application for or the grant of some other visa at a later time.  There is no evidence that PIC4013 would necessarily apply to any future class or subclass of visa for which Mr Kautoga might apply offshore.  In any event, the Tribunal correctly recognised that the restriction in PIC4013 may apply to a visa for which Mr Kautoga may apply in the future.

12. Furthermore, contrary to the Applicant’s submission, PIC4013 does not prevent a person who has had a visa cancelled from “applying” for a further visa for a period of three years.  Rather, it may (if PIC4013(1)(a) applied) mean that the criterion was not met if an application was made within that time, so that the visa would not be granted.  In so far as the ground of review refers to a bar on a visa application, it is not made out. 

13. Further, as the Applicant appeared to acknowledge at the hearing and as was recognised in the further amended application, it was (at the time of the Tribunal decision) only a possibility that PIC4013 might apply to a future visa application by Mr Kautoga.  

14. More generally, the Tribunal has not been shown to have failed to consider the potential impact of PIC4013 or to have misunderstood the law in considering the possible consequences of cancellation.  It has not been established that the Tribunal failed to consider that the Applicant “might be barred for up to three years” from being granted a visa “offshore” after the cancellation.  For this criterion to be satisfied, an application for a visa of a class subject to PIC4013 would either have to be made more than three years after the cancellation (for the visa to be granted) or the Minister would have to be satisfied that there are circumstances within PIC4013(1)(b) justifying the grant of the visa within three years after the cancellation.  While not using the exact words of PIC4013(1)(b), the Tribunal recognised that the Minister may be satisfied that there were compelling reasons (in fact compassionate or compelling circumstances) affecting the interests of Australian citizens to justify granting a visa within three years after the cancellation. 

15. The Tribunal understood that the effect of s.48 of the Act and the possibility of a three year restriction on the grant of a further visa to Mr Kautoga was significant and would weigh against cancellation. Reading the Tribunal decision fairly and as a whole, it can be inferred that this acknowledged the support the Tribunal accepted that Mr and Mrs Kautoga provided to her late sister’s family and the fact that the best interests of the children were a primary consideration. However the Tribunal also understood that such matters could not usefully be considered “in the abstract”. In that context it had regard to the concession by Mr Kautoga’s representative that he could not identify any visa Mr Kautoga could successfully apply for in Australia. In other words, setting aside the cancellation would not facilitate the provision of care to the children (except on the basis of delay which was rejected by the Tribunal in paragraph 59 of its reasons, as set out at [45] above).

16. In the absence of any indication or evidence that Mr Kautoga would necessarily be prevented from returning to Australia for a period of three years after the cancellation, it has not been established that the Tribunal erred in failing to consider further the consequences if he was to apply for a visa subject to PIC4013 within three years of the cancellation, whether in terms of the effect on or interests of the children or otherwise.  It was also not for the Tribunal to determine or to engage in speculation as to whether there would be compassionate and compelling circumstances should such a future offshore application be made by Mr Kautoga.

17. No jurisdictional error has been established in the Tribunal’s consideration of the possibility of Mr Kautoga being barred from being granted a visa were he to apply offshore within a period of three years after the cancellation, such that it was necessary for the Tribunal to consider further the potential impact of such a bar on the children and Mrs Kautoga and her family.  It did not fall into jurisdictional error in the manner contended for in the ground of review.

1. As it has not been established that the Tribunal fell into jurisdictional error, it is unnecessary to consider the First Respondent’s submission that remittal would be futile because more than three years have passed since the cancellation, so that were PIC4013 to apply to any future visa application by Mr Kautoga the criterion in PIC4013(1)(a) would be met.

2. The application should be dismissed.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:     2 June 2020