KELLY v Minister for Immigration
[2011] FMCA 557
•22 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KELLY v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 557 |
| MIGRATION – Applicant included false information in application – intention to obtain a visa by deception – discretion to withhold relief even if technical error established in decision of Tribunal. |
| Migration Act 1958 (Cth), ss.99, 101, 102, 103, 104, 105, 107, 109, 359, 476(2)(a), 474 Migration Regulations 1994, r.2.41 |
| Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 Applicant WAEE vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 Lu v Minister for Immigration & Multicultural Affairs [2000] FCA 178 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR Minister for Immigration v Petrovski (1997) 154 ALR 606 Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199 Patel v Minister for Immigration & Anor [2001] FMCA 223 Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 Re Ruddock & Anor; Ex parte S154/2002 (2003) 201 ALR 437 Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389 SZEHN v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1389 Tan v Minister for Immigration and Citizenship [2007] FMCA 753 Tickner v Chapman (1995) 57 FCR 451 Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 Vargas v Minister for Immigration and Multicultural Affairs [2001] FCA 1025 VQAB v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 104 | ||
| Applicant: | ALAN KELLY | |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 339 of 2011 |
| Judgment of: | F. Turner FM |
| Hearing date: | 11 July 2011 |
| Date of Last Submission: | 11 July 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 22 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Burchell |
| Solicitors for the Applicant: | RJH Partners Pty Ltd |
| Counsel for the First Respondent: | Mr Mosley |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application for judicial review filed on 11 March 2011 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 339 of 2011
| ALAN KELLY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision by the Migration Review Tribunal (the “MRT”) dated 9 February 2011 to affirm the decision of the delegate of the Minister on 27 October 2010 (Court Book “CB” 34) to cancel the applicant’s Subclass 417 (Working Holiday) visa.
The applicant arrived in Australia on 4 December 2008 on a Subclass 417 (Working Holiday) visa valid for twelve months. The applicant was granted a Subclass 417 Working (Temporary) (Class T2) visa on 11 November 2009 valid until 4 December 2010 (CB 36).
The delegate of the Minister cancelled the latter visa by decision dated 27 October 2010 (CB 34).
The grounds in the application for judicial review of the decision dated 9 February 2011 are as follows:
(1)The decision of the Tribunal is affected by jurisdictional error in that the Tribunal failed to take into account relevant considerations.
Particulars
(a)The Tribunal failed to take into account the applicant’s response to the section 107 notice about non-compliance. In particular, the applicant’s claim in relation to his skills and qualifications, his resume, the claim that the applicant’s conduct was out of character and the corroborative statements and character references.
(b)The Tribunal failed to take into account all of the relevant factors for the purposes of the prescribed circumstances set out in regulation 2.41 of the Migration Regulations.
(2)Further and in the alternative, the Minister be estopped from cancelling the applicant’s subclass 417 (working holiday) visa by reason of the representations made by the delegate of the Minister between 3 September 2010 and 22 September 2010 that the Department would not cancel the applicant’s Subclass 417 visa provided the applicant made an application for a subclass 457 (temporary business sponsorship) visa within a reasonable period of time.
Particulars
Between 3 September 2010 and 22 September 2010, ‘Marjorie’ of the New South Wales Visa Cancellation Unit of the Department represented to the applicant that the Department would not cancel the applicant’s subclass 417 visa provided the applicant made an application for a subclass 457 visa within a reasonable time.
Ms Burchell appeared for the applicant at the hearing on 11 July 2011, and Mr Mosley for the first respondent.
Section 101 of the Migration Act 1958 (the “Act”) provides:
Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
Section 107 of the Act provides:
Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)giving particulars of the possible non‑compliance; and
(b)stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
1.if the holder disputes that there was non‑compliance:
A. shows that there was compliance; and
B. in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
1.if the holder accepts that there was non‑compliance:
A. give reasons for the non‑compliance; and
B. shows cause why the visa should not be cancelled; and
(c)stating that the Minister will consider cancelling the visa:
1.if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
1.if the holder gives the Minister a written response within that period—when the response is given; or
1.otherwise—at the end of that period; and
(d)setting out the effect of sections 108, 109, 111 and 112; and
(e)informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)requiring the holder:
1.to tell the Minister the address at which the holder is living; and
1.if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A) The period to be stated in the notice under subsection (1) must be:
(a)in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)otherwise – 14 days.
(1B) Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)visas of a stated class; or
(b)visa holders in stated circumstances; or
(c)visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
Section 109 of the Act provides:
Cancellation of visa if information incorrect
(1)The Minister, after:
(a)deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
Regulation 2.41 of the Migration Regulations 1994 (the “Regulations” provides:
Whether to cancel visa — incorrect information or bogus document (Act, s 109 (1) (c))
For the purposes of paragraph 109 (1) (c) of the Act, the following circumstances are prescribed:
(a)the correct information;
(b)the content of the genuine document (if any);
(c)the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;
(d)the circumstances in which the non‑compliance occurred;
(e)the present circumstances of the visa holder;
(f)the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g)any other instances of non‑compliance by the visa holder known to the Minister;
(h)the time that has elapsed since the non‑compliance;
(j)any breaches of the law since the non‑compliance and the seriousness of those breaches;
(k)any contribution made by the holder to the community.
Note Under s. 109 of the Act, the Minister may cancel a visa if there was non‑compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.
The Minister has a discretion to cancel a visa if an application has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act (s.109).
The delegate cancelled the visa pursuant to s.109 of the Act because the applicant did not comply with s.101. That section requires the non-citizen to complete their application form in such a way that “(b) – no incorrect answers are given”.
Section 107 provides that if the Minister considers that a visa holder, who has been immigration cleared, has not complied with ss.101, 102, 103, 104, 105 or 107(2), the Minister must give notice of intention to consider cancelling their visa. The giving of a s.107 notice is a statutory pre-condition to the exercise of the power to cancel under s.109.
The applicant was given notice of intention to consider cancelling his visa on 11 August 2010 (CB 2). The applicant was advised that:
“By operation of s.99 of the Act not only must there be no incorrect answers on the application form itself, there must also be no incorrect answers in any information that a non-citizen gives, causes to be given, or that is given on his or her behalf (whether in writing or orally) to the Minister, or an officer, or a person or a tribunal… in relation to the non-citizens application for a visa.
You did not comply with s.101(b) of the Act because you supplied an incorrect answer in support of your online application lodged on 9 November 2009”. (CB 2)
The applicant supplied “details of specified work undertaken”, which on enquiry by the Department was found to be incorrect (CB 3).
The applicant was given an opportunity to comment on the possible non-compliance and to give a written response why his visa should not be cancelled (CB 3).
The applicant’s lawyer responded to the s.107 notice including that:
“the applicant does not deny that (he) provided incorrect information on the form. The applicant did not work for Fruit of Freedom and does not know who Ms Nawirridj is”. (CB 109)
The applicant appeared before the MRT on 19 January 2011 to give evidence and present arguments, and was represented by a registered migration agent (CB 111).
The applicant stated to the MRT when he responded to the s.107 notice, that he had a conversation with the Department (“Marjorie”) and was told that “they would consider an application for sponsorship and a 457 visa application from him and she would withhold cancelling a visa before considering that”. The applicant stated that he “lodged an application for a 457 visa on 20 September 2010, that the associated nomination had been approved (according to his adviser), and that he assumed that everything was OK”. (CB 111 [29])
The decision of the MRT contains extracts from submissions made on behalf of the applicant after he had been notified that his visa had been cancelled under s.109 (CB 112 – 118).
The submissions include a submission to the effect of:
“the delegate either expressly told the applicant, or led him to the understanding, that his visa would not be cancelled providing (sic “provided”) an application for a s.457 visa was lodged in a reasonable period (and more specifically, within a week) (CB 117 [5.2]). In reliance on this undertaking, the applicant lodged such an application and that the delegate is estopped from acting in a way contrary to those representations”.
Submissions for the Applicant
Ms Burchell stated that the incorrect information as to employment was inserted into his application by the applicant himself, and lodged online on 11 November 2009 (CB 2.10). A friend had given him the details of the alleged employer (Transcript “T” p.2, l.40).
Details of the incorrect information, and of Departmental investigations, are set out at Court Book 108 [18 – 20]. Ms Burchell says that the information was inserted in “error” (T p.9, l.8). The Court rejects that description if it is intended to convey that it was inserted by mistake without knowing that it was incorrect; to include information that the applicant knew was incorrect was deliberately deceptive. It was clearly a deliberate attempt to mislead the Department. To this Ms Burchell responds that the applicant did not mislead the MRT because he was always upfront with the Tribunal that there was non-compliance (T p.10, l.30). The Court rejects that explanation. The applicant did not admit his attempt to mislead until after the Department put the results of its enquiries to him on 11 August 2010 (CB 108), including that the applicant had provided “incorrect information” (CB 109.5).
Ms Burchell submitted that the applicant had a telephone conversation with the delegate (“Marjorie”) at the New South Wales Visa Cancellation Unit on 10 September 2010, when the applicant was told that the delegate would hold off consideration of cancelling his working holiday visa provided he lodged an application for a subclass 457 visa within a week. The wording is set out in para.9 of the applicant’s affidavit sworn on 9 March 2011 as follows:
“provided you lodge your subclass 457 visa application within a week, I will not cancel your working holiday visa”. (para.9)
The applicant claims that the delegate, and thereby the Minister, are estopped from acting in a way that is contrary to that representation. The Court finds that the stipulation of “within a week”, replaced the stipulation on 3 September 2010 of “within a reasonable period of time”. The Court returns to the question of estoppel below.
Ms Burchell submits that the delegate cancelled the applicant’s working holiday visa because “he did not satisfy s.101 of the Act in providing incorrect information on his application”.
Grounds 1(a) and 1(b)
Ms Burchell submits that the MRT’s decision is affected by jurisdictional error in that it failed to take into account the applicant’s response to the s.107 notice about non-compliance, in particular the applicant’s claim in relation to his skills and qualifications, his résumé, the claim that the applicant’s conduct was out of character and the corroborative statements and character references.
Ms Burchell submits that three steps are required under s.109 of the Act in order for a decision maker to exercise their discretionary powers (whether to cancel a visa).
Ms Burchell submits that:
The Minister, after:
a)deciding under s.108 whether there was non-compliance by the holder of a visa; and
b)considering any response to the notice about non-compliance given in a way required by s.107(1)(b); and
c)having regard to any prescribed circumstances;
may cancel the visa.
Ms Burchell states that only steps (b) and (c) are under scrutiny in this matter. It is not contested by her that the applicant provided incorrect information in his application.
Ms Burchell referred to reg.2.41 of the Regulations which sets out the prescribed circumstances for the purposes of s.109(1)(c).
Ms Burchell stated that “the applicant is critical of (e) and (k) from the Tribunal’s decision”. The Court understands this to mean that the applicant asserts that the MRT failed to give due and proper consideration to material relevant to paragraphs (e) and (k) of reg.2.41 (CB 113.10).
Details of the s.107 notice to the applicant are set out at Court Book 108. Details of the response by the applicant’s lawyer are set out at Court Book 109 to 110. Details of the applicant’s statement in response to the s.107 notice are set out at Court Book 110 to 111. The applicant stated therein:
“I do not deny that I provided incorrect information on the working holiday form. I did not work for Fruit of Freedom and I do not know who Mrs Nawirridj is”. (CB 110.7)
Ms Burchell is critical of the way the MRT “merely recites the applicant’s lawyer’s submissions” (CB 109) and “sets out the applicant’s statement” (CB 110) but “fails to set out or note that the applicant had also in that response… provided a résumé and had provided character statements…” Ms Burchell submits that “those pieces of material (which the Court decided are “pieces of evidence”) were required to be taken into account by the Tribunal in exercising its discretion under s.109(1)(b)”.
The Court refers to the following decisions:
In VQAB v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 104, the Full Court decided at [25]:
“The primary judge had another basis for rejecting this first ground. He concluded that the failure to make a finding regarding the passport claim could not amount to a jurisdictional error. That was because there was no claim that being refused a passport amounted to persecution. The claim that he had been refused a passport was merely a piece of evidence to bolster the claim of persecution by reason of the appellant’s political opinion. His Honour referred to a passage in the judgment of Allsop J in Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79] in which a distinction was drawn between an element or integer of a claim, and a mere piece of evidence”. (emphasis added)
And at [31]:
“The first ground is singularly uninformative. The primary judge dealt with the complaint that the Tribunal had not addressed the passport claim correctly, and to the extent that this ground seeks to agitate that point, it is without merit. In addition to Paul, and the cases cited therein, regard should be had to Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46]- [47], VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 447, Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 509, and Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533”.
SZEHN v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1389 at [58]
“It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [47]; (2003) 75 ALD 630 at 641 at [47]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173”. (emphasis added)
Failure to take a relevant consideration into account can only be made out where the Tribunal failed to take into account a consideration which it is bound under the Act to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Where the elements of the claim have been considered, the failure to mention expressly part of the applicant’s evidence does not show jurisdictional error: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] per Allsop J; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]; MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314 at [13]-[15] per Middleton J. (emphasis added)
In MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314, Middleton J said at [13]–[15]:
“It is clear that the ground of failure to take into account a relevant consideration is made out only if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making the decision (Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 39 per Mason J).
A failure to deal with a particular piece of evidence is neither a failure to take into account a relevant consideration nor a failure to deal with a claim.
The Tribunal found that the appellant was a Muslim who spoke Tamil, and relied on country information, which the Tribunal found included material that there are no Tamil Muslims in Sri Lanka. However, one piece of country information sourced from the Documentation, Information and Research Branch (‘DIRB’) of the Immigration and Refugee Board (Ottowa) referred to by the Tribunal does indicate that there are Tamil Muslims in Sri Lanka. It seems to me, however, that this does not demonstrate an error of law, and clearly no jurisdictional error, merely because the Tribunal, in this respect, may have made a wrong finding of fact (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ)”. (emphasis added)
Ms Burchell submitted that for a matter to be considered; it must be given “active intellectual consideration”. Ms Burchell submits that “the MRT did not have proper regard to the résumé and the good character references”.
It is clear (from CB 119 – 121) that the MRT gave active intellectual consideration to the matters adumbrated there. Neither the résumé nor the references were required to be considered under reg.2.41, and were “pieces of evidence”. However the Court finds that they were considered (see below).
As stated in SZEHN (supra):
“It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it”.
Failure to take a relevant consideration into account can only be made out where the Tribunal failed to take into account a consideration which it is bound under the Act to consider: Peko-Wallsend Ltd (supra). Where the elements of the claim have been considered, the failure to mention expressly part of the applicant’s evidence does not show jurisdictional error: Paul (supra).
Ms Burchell submits that the résumé and references must be taken into account pursuant to PAM 3 (being the Departmental policy on “General Cancellation Powers” CB 120). The Court decides that as the documents were pieces of evidence, there was no obligation on the MRT to refer to them specifically, and that they were, in any event, taken into account.
Ms Burchell referred to the decision in Tickner v Chapman (1995) 57 FCR 451 at [465] for the meaning of “consider”. As decided above, the MRT considered the matters that it was required to consider.
Ms Burchell referred to the decision in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [212] for the meaning of “have regard to”. The Court finds that the MRT had regard to the matters that it was required to have regard to.
Ms Burchell referred to the decision in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389 at [61] for the meaning of “had regard to a matter”. The Court repeats its finding above.
Ms Burchell referred to the decision in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47] as follows:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point”.
[The Court notes that the issues were identified and considered in the Tribunal’s Reasons and Findings (CB 119 at [47] and 120 at [53]).
“It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked”.
The Court decides that failure to consider the résumé or references in more detail (SZNPG [2010] FCAFC 51; Khadgi (post at [59]); MZYHS (supra at 24]; Htun (supra at 259 [42]); Paul (supra at 423 [79]) does not establish that the MRT failed to deal with an “issue that it was required to deal with”. Failure to deal with a piece of evidence does not establish jurisdictional error.
Ground 1(b)
This ground relates to the alleged failure by the MRT to consider the matters in reg.2.41. This ground has substantially been dealt with above.
Ms Burchell repeats that the MRT did not reach conclusions on various matters but simply set them out. As shown on Court Book 119 – 121, that is not correct. After setting out a summary of the applicant’s evidence and then stating “having regard to all the (above) circumstances” (CB 121.10) the MRT exercised its discretion to affirm the decision to cancel the subclass 417 visa.
No jurisdictional error has been shown.
Ms Burchell referred to the decision in Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145 at [57 – 62] about the requirement to “have regard to” the circumstances set out in reg.2.41 as follows:
[57] Section 109(1)(c) of the Act obliges the Tribunal to “have regard to” the prescribed circumstances set out in reg 2.41. The consideration of those prescribed circumstances is thus a jurisdictional prerequisite to the exercise of the Ministerial discretion to cancel a visa under s 109. In order to comply with that prerequisite, the decision-maker must engage in what has been described as “an active intellectual process” in which each of the prescribed circumstances receives his or her “genuine” consideration: Tickner at 462 (per Black CJ) and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [105] (p 540) (per Gleeson CJ and Gummow J).
[58] In the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for him or her to determine the appropriate weight to be given to them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41 (per Mason J). The failure to give any weight to a factor to which a decision-maker is bound to have regard in circumstances where that factor is of great importance in the particular case may support an inference that the decision-maker did not have regard to that factor at all.
[59]Similarly, a decision-maker does not take into account a consideration that he or she must take into account if he or she simply dismisses it as irrelevant. On the other hand, it does not follow that a decision-maker who genuinely considers a factor only to dismiss it as having no application or significance in the circumstances of the particular case will have committed an error. A decision-maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case. A court would not necessarily infer from the failure of a decision-maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision: Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 at [62] (p 512) (per Hely J). Whether that inference should be drawn will depend on the circumstances of the particular case.
[60] In some cases it may be apparent that amongst the factors to which a decision-maker is bound to have regard, there is one factor (or perhaps more than one) which is critical or fundamental to the making of the decision in question. This was true of the particular matter referred to by Mason J in The Queen v Toohey; Ex Parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 338. As his Honour’s reasons in The Queen v Hunt; Ex Parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329 show, the relevant statutory provisions may make clear that a particular factor is “a fundamental matter for consideration”. But the converse is also true. The relevant statutory provisions may show that a particular matter to which a decision-maker must have regard is not fundamental to the decision-making process in the sense discussed by his Honour: see, for example, Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at [57] (p 164) (per Sackville J).
[61] We respectfully agree with Sackville J in Singh where his Honour pointed out that the expression “have regard to” is capable of different meanings depending on its context. As his Honour said at [54] (p 163):
.... a statutory obligation to have regard to specified matters when making an administrative decision may require the decision-maker to take the matters into account and “give weight to them as a fundamental element in making his [or her] determination”: R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329 per Mason J. Indeed, this is the meaning that was given to the predecessor of s 501(6)(c) of the Migration Act (relating to the character test): Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194. But the phrase “have regard to” can simply mean to give consideration to something (Shorter Oxford English Dictionary). In this sense a direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than treat them as fundamental elements in the decision-making process.
[62] In our opinion, the prescribed circumstances to which the Minister must have regard in the present case are of the latter kind. There are 10 different criteria that are prescribed by reg 2.41 for the purposes of s 109(1)(c) of the Act. It is hard to see why a decision-maker should be required to treat each and every one of them as fundamental for the purposes of s 109. Although the Minister must have regard to each and every one of the prescribed circumstances, not all of them will be central or fundamental to every case in which the Minister is called upon to make a decision under s 109(1) of the Act.
[63] In Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1, at [47]–[54] (pp 7–8), the Full Court held:
(a)In circumstances where a decision-maker is required to have regard to several specified or prescribed mandatory considerations, he or she must genuinely have regard to each and every one of those considerations and must engage actively and intellectually with each and every one of those considerations by thinking about each of them and by determining how and to what extent (if at all) each of those criteria might feed into the deliberative process and the ultimate decision; and
(b)The reasons for decision published by a decision-maker who is obliged to have regard to mandatory considerations should show such an active intellectual engagement with all mandatory criteria although such reasons are:
... meant to inform and [are] not to be scrutinised by over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [see Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259 at 272].
In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, at [46] (p 641), the Full Court held that:
(a)It is not necessary for an administrative decision-maker such as the Tribunal to refer in its written reasons to every piece of evidence and every contention made by an applicant;
(b)It may be that some evidence is irrelevant to the criteria and some contentions misconceived; and
(c)The reasons of a tribunal such as the Tribunal in the present case should not be scrutinised “with an eye keenly attuned to error” nor is it necessary to provide reasons of a kind that might be expected of a court of law.
[65] At [47] of its reasons in WAEE, the Full Court said:
47.The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
[66] Zhong is not authority for any contrary propositions. In Zhong, Lander J held that, in the circumstances of that case, s 107 of the Act had never been engaged. His Honour then held that, if he were wrong in his primary conclusion and if s 107 had been engaged so that the delegate had been entitled to give the notice which was given, the notice failed to comply with s 107 in that it did not particularise the alleged non-compliance. At [81] and [82] (p 460) of his reasons, his Honour said:
81.If I am wrong about s 107 never being engaged and the delegate was entitled to give the notice which was given, the notice in my opinion failed to comply with s 107 in that it did not particularise the possible non-compliance. Because particulars of the non-compliance were not given, it meant that the appellant could not give a written response to the notice disputing there was non-compliance and showing there was compliance as provided for in s 107(1)(b). The giving of a notice which complies with s 107 of the Act is a statutory precondition to the exercise of the Minister's or delegate's power to cancel the visa: cf Tien v Minister for Immigration and Multicultural Affairs [1998] FCA 1552; (1998) 89 FCR 80; Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1078; (2004) 139 FCR 60.
82.In my opinion, for that second reason, the notice given did not comply with s 107. In my opinion, the decision to cancel the visa must be quashed.
[67] Having decided the matter on the bases described at [66] above, Lander J went on to provide yet a further reason why the decision in that case could not stand. His Honour held, probably by way of obiter, that the Tribunal had not given specific consideration to the mandatory criterion specified in reg 2.41(k). Whilst it is true that, in considering this point, his Honour said, at [84]–[86] (p 460) of his reasons:
84.The federal magistrate found that one of the reasons for rejecting the appellant’s arguments was that the positive factors were outweighed by the “extremely adverse findings that the Tribunal has made above regarding the provision of false and misleading evidence and fraudulent documentation”.
85.It might be thought that the federal magistrate was thereby excusing the Tribunal from its statutory obligation to enquire into the question of the appellant’s contribution to the community. Whilst the Tribunal was entitled to make the adverse findings that it made in relation to the appellant’s conduct, that did not relieve it of its obligation to comply with the injunctions under s 109(1)(c) and reg 2.41(k) to specifically enquire into any contribution made by a holder to the community.
86.reading of the Tribunal’s reasons shows that it did not make that enquiry. It was not excused from doing so for the reason given by the federal magistrate. The Tribunal thereby failed to exercise its jurisdiction.
his Honour did not intend to suggest in these passages that the Tribunal had an obligation which was different from that which was mandated by s 109(1)(c). The use by his Honour of the expression “specifically enquire into” in respect of the relevant criterion was not intended to recast the decision-maker’s statutory obligation. What the decision-maker is required to do is to “have regard to” the relevant criterion. In the present context, the expression “have regard to” imposes upon the Minister the obligation to engage with the criteria laid down in reg 2.41 in the manner described by us at [57]–[62] above.
[68] There are ten criteria specified in reg 2.41. The list of factors set out in reg 2.41 is not an exhaustive statement of the factors that the Minister might properly consider to be relevant in any given case. That list contains all of the mandatory criteria and, therefore, constitutes a comprehensive statement of those considerations which must be taken into account. There is nothing in the language of reg 2.41, the terms of s 109 or the context in which reg 2.41 is to be applied which requires that the Minister should give any particular weight to any one factor or group of factors nor is there any indication in any of those materials that one or more factors are to be accorded primacy. The weight to be given to any one factor or group of factors is entirely a matter for the Minister and will vary from case to case. Further, in any given case, facts and matters which might properly be raised under one subparagraph of the regulation may also be quite properly raised under other subparagraphs of the regulation.
[69] It is not essential for the Tribunal, when conducting a review of a delegate’s decision to cancel a visa under s 109(1) of the Act, to compartmentalise its reasons and to set out those reasons by reference to each criterion specified in reg 2.41. That may be a convenient and appropriate method for the Tribunal to adopt in many cases but it is not the only way for the Tribunal to demonstrate that it has had regard to all of the mandatory criteria specified in reg 2.41.
[70] Of course, as the Full Court said in Lafu at [50] (p 8), the Court is entitled to look closely at the structure of the Tribunal’s reasons in order to assess whether it truly has had regard to all mandatory criteria. If, for example, the Tribunal chooses to list each of the reg 2.41 criteria and to make observations and findings in respect of each of those criteria in turn as part of a discrete section of its reasons, the Court which undertakes judicial review of those reasons may be driven to conclude that all of the Tribunal’s reasons concerning the reg 2.41 factors are contained in that section of the Tribunal’s reasons. But that will not necessarily be so. Each case must be looked at and evaluated according to its own particular circumstances.
[71] The question of whether or not a decision-maker has had regard to all mandatory criteria is a question of fact. That question will usually have to be determined by the Court undertaking a close analysis of the decision-maker’s reasons without the benefit of other evidence, for example, from the decision-maker. As the Full Court said in SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25]:
... However, the appellants are obliged to do more than point to material capable of supporting an inference that the Tribunal did not consider the Police letter. It is necessary for the appellants to demonstrate that, having regard to all of the evidence and other material before the Court, it would be appropriate to draw that inference; that is, the appellants must demonstrate, on the balance of probabilities, that the Tribunal did not consider the Police letter”.
The Court notes the decision in para.59 of Khadgi above that:
“A decision maker is entitled to be brief in his or her consideration of a matter which had little or no practical relevance to the circumstances of a particular case”.
And at para.62:
“There are 10 different criteria that are prescribed by reg 2.41 for the purposes of s.109(1)(c) of the Act. It is hard to see why a decision-maker should be required to treat each and every one of them as fundamental for the purposes of s.109”.
(The Court finds that the résumé or character references do not fall clearly within the circumstances listed in reg.2.41(e) or (k) but that, in any event, the Tribunal considered them).
“A court would not necessarily infer from the failure of a decision maker to expressly refer to such a matter in its reasons for decision that the matter has been overlooked”. (Ibid 59)
The MRT had regard to and considered all the circumstances in reg.2.41.
Ground 2
Ms Burchell then addressed “the estoppel claim” and submits that the “Minister should be estopped from cancelling the s.417 visa by reason of the conversations held between the applicant and Marjorie in September, and the state of mind the applicant held in reliance of (sic “on”) those conversations, and where the applicant then made the 417 application within a reasonable time. However, his 417 visa was cancelled, which then had an impact on the second application that was made”.
Ms Burchell submits that if Marjorie (and the Minister) are estopped, the delegate would be required to be remake the decision. By this submission the applicant is seeking an order by the Court that the primary decision is invalid, and that the delegate should remake it. As discussed later, that remedy is not available to the applicant [s.476(2)(a)].
Ms Burchell argued that the applicant is seeking “a writ of prohibition against the Minister acting in accordance with the decision of the MRT until such time as the delegate (Marjorie) has re-determined the matter, having regard to the fact that the delegate is estopped from cancelling the s.417 visa” (T p.21, l.5 – 16).
Submissions for the First Respondent
Mr Mosley submits that there is no dispute that there was non-compliance with s.101(b), as the applicant gave a completely fake answer to the question of where he had worked and the specified work that he had undertaken (CB 11 – 12).
The Court finds that there is no dispute that incorrect information was given, as the applicant admitted this (CB 110.7) as a result of the Department letter to him on 11 August 2010 pointing out that the applicant had provided an incorrect answer in his application, and that the alleged employer had advised the Department that “the applicant was not employed by the company for the time stated, or any other time” (CB 108).
Mr Mosley then made submissions that there are basic principles about “what is a relevant consideration and what is a piece of evidence”. Mr Mosley submits that the MRT will err only if it fails to take into account a relevant consideration and those matters which it is bound by legislation to take into account. Mr Mosley referred to paras.19 to 33 of the first respondent’s Contentions of Fact and Law. The Court accepts the following Contentions therein:
·The Tribunal was not required to expressly record and comment upon each particular piece of information or material before it. NAHI (supra at [14]); Guo (supra at 593)
·“Relevant” information is such that the decision maker is bound by the statute or by law to take it into account. Peko-Wallsend Ltd (supra at [39 – 42])
·The Tribunal is not required to refer to every piece of evidence placed before it Paul (supra at [79])
·The Tribunal is not obliged “to give a line by line refutation of the evidence for the claimant…” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 58 ALD 609; 74 ALJR 405 at [65])
·“The ground of failure to take into account a relevant consideration is only made out if the decision maker failed to take into account a consideration that the decision maker was bound to take into account in making the decision” (Minister for Immigration and Citizenship v MZYHS [2001] 119 ALD 534 at 23 – 24]) adopting Peko-Wallsend Ltd (supra at [39 – 42])
·“A failure to refer to or adequately to consider, evidence, whether or not it might be thought probative, does not give rise to jurisdictional error, even though it might have led to an erroneous finding of fact”. MZYHS (supra at [24]); Htun (supra at 259 [42]); Paul (supra at 423 [79])
·“An error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (20030 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294”. Minister for Immigration and Citizenship v SZNPG(2010) 115 ALD 303 at [28]
·The submission from the applicant’s advisors (CB 109) itself makes reference to both the résumé and the statements. In the submission, the applicant’s skills are referred to and summarised (CB 109.9). The submission further refers to the brief statements from the applicant’s friends and his former Irish employer. The substance of those statements pertains to the applicant’s honesty and integrity and, in the case of the former employer to his honest and hard-working attitude. That is precisely what is referred to also in the submission (CB 110.1). The Tribunal was required to consider the response to the NOICC (Notice of Intention to Consider Cancellation under s.109 of the Act). In doing so, as the authorities make clear, it was not required to refer to every piece of evidence before it in order to complete its jurisdictional task. That is particularly so in the present case where, as discussed, the submission summarised the content of the résumé and statements. Moreover, that was not the only submission from the applicant’s agents before the Tribunal. The applicant’s advisors provided an additional submission to the Tribunal (CB 112 – 118 at [34]). It is patent (“patently clear”) from a reading the relevant part of this submission, that it covers those matters the subject of the résumé (CB 115 – 116).
·It is not correct to contend that the Tribunal did not take account of the character statements or the résumé in considering the response under s.109(1)(b), simply because they were not specifically referred to.
·The Tribunal did not fail to have regard to the two considerations in reg 2.41(e) and (k). The circumstances prescribed pursuant to reg 2.41, are not fundamental elements in the decision making process, but are matter to which regard must be had: Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145 at [57]-[62]. The Tribunal is not required to explain the weight given to each of these considerations: Khadgi at [68], [78], [123]. Moreover, the Full Court in Khadgi cautioned against an overly-stringent approach in considering whether regard has been had to them: Khadgi at [77]-[79].
·In relation to reg 2.41(e), the present circumstances of the applicant were referred to at CB 119 at [47]. The Tribunal noted that he intended to seek work and that he had made application for a 457 visa. The Tribunal noted that the applicant considered that the visa would not be cancelled pending consideration of the 457 application. The Tribunal noted that the applicant’s proposed occupation was on the skilled occupation list and that he still had financial debts in Ireland.
·In relation to reg 2.41(k), arguments advanced regarding any contribution made by the applicant to the community were referred to at CB 120 at [53]. The only material relevant to this issue, was that going to the past and to the present and not future: Khadgi at [120]. His past employment contribution was limited to working as a labourer on building sites in Sydney. In Khadgi, current employment was not considered a factor relevant to reg 2.41(k): Khadgi at [122].
·The Tribunal considered and weighed all those factors identified by the legislation and policy and all of the applicant’s circumstances. These included that he had been in Australia since 2008 and that he considered himself to be well settled and integrated into the community. It further considered whether the adverse circumstances of the applicant outweighed factors favouring cancellation of the visa. It considered his time and work in Australia and that he was now sponsored for a 457 visa and nomination his occupation as a project manager, which if approved would allow him further temporary stay. It referred also to the fact that he did not lie when confronted by the Department with the evidence of his false statement which was made to obtain the visa. It noted that his prospects of securing employment in Ireland were and may continue to be slim and may cause him significant disadvantage. After weighing all the relevant matters it concluded that the preferable decision was to cancel the visa (CB 121 at [56]-[58]). There was no error in that approach.
The Court finds that the alleged failure by the MRT to refer to, have regard to, or consider the references (CB 24 – 26) and résumé (CB 27) has not been established. As decided above, the Tribunal considered the facts and circumstances in them.
Mr Mosley submitted that the MRT, had regard to the résumé and character references. The Court accepts that the documents were referred to and is not required to decide if the documents were “considered” to the extent urged by Ms Burchell, because of the finding above that they were no more than pieces of evidence.
Grounds 1(a) and 1(b) are dismissed.
Ground 2 – Estoppel
Mr Mosley submitted as to the claim of estoppel (Ground 2) that even if the representation was made, the MRT was not bound by it because:
·Under s.359, the MRT must exercise its own discretion when exercising it statutory review function.
·That a condition of the alleged representation on 10 September 2010 was that the applicant lodge his visa application within a week, and that application was not lodged until 22 September 2010 (Affidavit of the applicant sworn 9 March 2011 para.10),
·And therefore the applicant cannot claim estoppel.
·That public policy prevents a claim of estoppel arising here.
Mr Mosley made the following written submissions:
“In Lu v Minister for Immigration & Multicultural Affairs [2000] FCA 178, Kiefel J, with whom Spender and O’Conner JJ agreed, said:
In any event, even if some otherwise actionable representation could be attributed to the Minister, considerations of public policy would prevent any estoppel from arising, since the legislation is to be taken as intending a free and unhindered exercise of discretion: Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93, 111.
To the same effect, in Minister for Immigration and Ethnic Affairs v Sabri Polat [1995] FCA 1204 (1995) 37 ALD at [401], Davies and Branson JJ said:
The view taken in Richmond is similar to that expressed in this country in the cases to which reference has been made. Estoppel will not operate so as to contradict a statute or to extend the authority of a decision-maker beyond that given by the statute. Nor may a court make an order for payment of money from the public treasury contrary to a statutory appropriation. Even when the power to act is a discretionary one, it had been said that, when there is a duty under statute to exercise a free and unhindered discretion, no estoppel can be raised to prevent or hinder the proper exercise of the discretion. See Kutrovic at 100, 111; New South Wales Trotting Club Ltd v The Council of the Municipal Council of Glebe (1937) 37 SR (NSW) 288 at 307, 313; Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth [1977] HCA 71; (1997) 139 CLR 54 at 73-7.
The applicant (at [49]) relies upon a passage from the judgment of Mason CJ in Attorney General (NSW) v Quin (1990) 170 CLR 1 at 18. However as Jarrett FM recently observed in Singh v Minister for Immigration & Anor [2010] FMCA 305 at [69]-[72], it is necessary, however to record Mason CJ’s earlier reasoning to place that paragraph in context. Earlier, his Honour said at p.17:
… The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretions in a particular way in advance of the actual performance of the duty or exercise of the power”.
Mr Mosley referred also the decision in Patel v Minister for Immigration & Anor [2001] FMCA 223 where FM Burchardt followed the decision in Singh (supra) but found that there was no representation by the Minister. In the present case, it is not necessary to determine if the representation was made by the delegate, as the applicant failed to comply with the condition for its operation, and thereby destroyed the basis for his claim.
Mr Mosley referred to the decision in Tan v Minister for Immigration and Citizenship [2007] FMCA 753 and the reference therein to the decision of Justice Tamberlin in Minister for Immigration v Petrovski (1997) 154 ALR 606 where his Honour made the following comments about estoppel (at 628 – 9):
“In relation to the application of estoppel in public law, based on principles of ostensible authority, Gummow J [in Minister for Immigration v Kurtovic] said (at FCR 213; ALR 114):
“Any such development here would be the first true exception or qualification to the general rejection of estoppel in public law.”
This statement in Kurtovic assumes that no estoppel doctrine has yet emerged in Australian public law. Kurtovic has been extensively cited and applied in a number of subsequent decisions including the recent full Federal Court decision in Polat.
Mason CJ in Quin, like the US Supreme Court in Heckler v Community Health Services of Crawford County Inc 467 US 51 (1984) (quoted by Gummow J in Kurtovic), was not prepared to close the door on estoppel in public law but neither judgment attempts to formulate with any precision the principles by reference to which particular cases are to be decided when such an estoppel is asserted. There is, of course, much to be said for the observation of the majority in Heckler (at 60-1) that:
“ . . .Though the arguments the government advances for the rule [against estoppel] are substantial, we are hesitant, when it is unnecessary to decide this case, to say that there are no cases in which the public interest in ensuring that the government can enforce the law free from estoppel might be outweighed by the countervailing interest of citizens in some minimum standard of decency, honour, and reliability in their dealings with government.”
It must be borne in mind, however, that the Chief Justice and Rehnquist J in that case expressly disassociated themselves from the above remarks and that neither the High Court nor any other Australian court has to date accepted such a statement of principle”.
The Court accepts the above arguments against the claim of estoppel. As estoppel cannot be claimed including for the reason that the applicant did not comply with the condition precedent to it, the Court is not required to decide whether the estoppel doctrine has emerged in Australian public law.
The claim for an estoppel is dismissed.
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Even if the Court had found that jurisdictional error had been made, as a matter of discretion the Court would not grant relief owing to the deliberate inclusion of false information by the applicant in his application (CB 11 – 12); being the ABN of an alleged employer whose details the applicant had found out from a friend (T p.2, l.40). That was a deliberate attempt by the applicant to obtain a visa by deception. He entered the detail in his application (T p.2, l.42), and the Court finds that he must have known that it was false.
Quoting from NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199 at [10]:
The appellant, in our view, has so conducted himself both in relation to the Minister and to the Court as to disentitle himself to the award of discretionary relief even if it be assumed that his fresh ground of appeal has technical merit.
At at [11]:
“Relief under s.75(v) of the Constitution is, like prerogative relief generally, discretionary”: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex Parte Applicants S134/2002 (2003) 211 CLR 441 at [90].
And at [12]:
As was said of the writ of mandamus in The King against Commonwealth Court of Conciliation and Arbitration ; Ex parte Ozone Theatres (Aust.) Ltd. (1949) 78 CLR 389 at [400]:
“the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld”.
See generally Aronson, Dyer and Groves, Judicial Review of Administrative Action, 736ff (3rd ed, 2004).
And at [13]:
The appellant has twice attempted to practise deception upon the Minister, first by making a bogus claim for refugee status and then, by denying that he was personally implicated in the making of that claim. His same lack of candour infected his approach to proceedings in this Court.
And at [14]:
…We would deny him the relief sought even if he could make out the ground relied upon. It is contrary to the public interest for any encouragement to be given to conduct of the type engaged in by the appellant.
In Khadgi (supra) the applicant had provided fake documents in order to procure an approval… to which she was not entitled. The Full Court decided at [127]:
“When the Tribunal’s reasons are considered in their entirety and, in particular, when the matters of discretion adumbrated at [129]–[149] of the Tribunal’s reasons are taken into account, it is clear that the Tribunal did not think that any of the matters specified in reg 2.41(f) to (k) (whether looked at individually or in combination with others) was sufficient to displace the impact of the dishonest conduct on the part of Ms Khadgi which had enabled her to procure her Subclass 880 visa”.
Those comments are apposite here (see CB 121 at [57]).
The application for judicial review is dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of F. Turner FM
Date: 22 July 2011
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