Khadgi v Minister for Immigration
[2010] FMCA 381
•8 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KHADGI v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 381 |
| MIGRATION – Review of Tribunal decision to cancel a DD Visa Sub-Class 880 – whether Tribunal properly considered matters referred to in Reg 2.41 Migration Regulations 1994. |
| Migration Act 1958, ss.103, 107, 109 Migration Regulations 1994 |
| Tickner & Ors v Chapman & Ors (1995) 57 FCR 451 NAGT v Minister for Immigration [2005] 147 FCR 51 Minister for Aboriginal Affairs v Peko Wallsend Limited (1985) 162 CLR 24 Zhongv Minister for Immigration (2008) 171 FCR 444 WAEE v Minister for Immigration (2003) 75 ALD 630 Lafu v Minister for Immigration [2009] FCAFC 140 Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 |
| Applicant: | PADMA KHADGI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3148 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 5 May 2010 |
| Date of Last Submission: | 5 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 8 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | MAS Law |
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue directed to the Migration Review Tribunal removing into this Court to be quashed the decision of the Tribunal made on 4 December 2009.
A writ of mandamus be directed to the Second Respondent directing it to reconsider and determine the matter according to law.
First Respondent to pay the Applicant’s costs assessed in the sum of $5,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3148 of 2009
| PADMA KHADGI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 21 June 2006 Ms Padma Khadgi, the applicant in these proceedings submitted, through her migration agent, an application for permanent residence in Australia as a skilled independent overseas student (Sub-Class 880). She was required to submit with this application a large quantity of supporting documentation including confirmation from the Department of Employment and Workplace Relations that an application for a skills designation had been accepted. In this case the applicant submitted a letter dated 22 May 2006 [CB 47]. The letter indicated that the applicant had been designated as a cook [4513-11]. In order to obtain this designation Ms Khadgi was obliged to provide TRA with proof that she had completed an appropriate course and that she had undertaken 900 hours of relevant work experience. Ms Khadgi had submitted to TRA a series of documents relating to her “employment” at Da Franco Incontro Restaurant in Parramatta Road Concord [CB 82 – 91]. Each of these documents, which included a detailed description of the work experience undertaken by Ms Khadgi, was signed by Mr Graniero, the proprietor of the restaurant. On 4 April 2007 Ms Khadgi was granted a DD Visa Sub-Class 880.
It would appear that on 6 February 2008 Mr Graniero was interviewed by officers of the Department of Immigration and Citizenship and signed a statement which told that Ms Khadgi had approached him in November or December 2006 and asked for work experience which he gave her for two to three weeks in November or December 2006. She came back to the restaurant in February 2007 for one week and did the same lunch time work for two or three shifts. Mr Graniero agreed that he had signed the documents that Ms Khadgi had submitted to TRA but said that it was impossible that she could have done all the work which was set out there. In September 2008 the Department wrote to Ms Khadgi advising her that it was considering the cancellation of her visa on the grounds that there was non compliance with s.103 of the Migration Act 1958 (the “Act”):
“On the material before me, I consider that there has been non-compliance with the following section 103 of the Act.
Section 103 of the Act.
This provision relevantly provides that a ‘non-citizen must not give, present or provide to an officer, an authorised system, the Minister, or a tribunal performing a function or or purpose under this Act, a bogus document or cause such a document to be so given, presented or provided.”
The code provided for in the Act for dealing with situations of this type is found in ss.107-109 and Regulation 2.41 of the Migration Regulations 1994 which are set out below:
“[107] 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:
(i) 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
(ii) 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:
(i) 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
(ii) if the holder gives the Minister a written response within that period--when the response is given; or
(iii) 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:
(i) to tell the Minister the address at which the holder is living; and
(ii) 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.
[109] Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(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.”
Reg 2.41Whether 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.”
Ms Khadgi employed her migration agent to make submissions to the department on her behalf. There was considerable correspondence between the migration agent and the department and the department also reinterviewed Mr Graniero and obtained a further statement from him which it provided to Ms Khadgi. In the response from her migration agent Ms Khadgi suggested that Mr Graniero had not told the truth in his statement and that the reason he had not done this was because she had resisted his attempts to obtain sexual favours from her, that she was in fear of Mr Graniero and that was the reason why she left the flat she was living in above his premises.
On 19 February 2009 the delegate determined to cancel Ms Khadgi’s visa and so advised her through her migration agent. In the record of decision the delegate notes he is obliged to consider the matters referred to in Regulation 2.41(a) to (k) and in respect of those matters in (f) to (k) says:
“(f)the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act [reg. 2.41(f)]
Ms O’Donoghue, on behalf of Ms Khadgi, has responded to both the Notice of Intention to Consider Cancellation under s109, sent on 17 September 2008 and to the additional information forwarded on 7 November 2008.
(g)any other instances of non-compliance by the visa holder known to the Minister [reg. 2.41(g)]
There is no other instance of non-compliance byMs Khadgi.
(h)the time that has elapsed since the non-compliance [reg. 2.41(h)]
The non-compliance occurred when Ms Khadgi presented a bogus document in support of her skilled – independent overseas student visa application lodged on 6 June 2006. That is, approximately two and half years have elapsed since Ms Khadgi’s non-compliance.
(j)any breaches of the law since the non-compliance and the seriousness of those breaches [reg.214(j)]
There is no information before the Department that would indicate further breaches of the Migration Act 1958 by Ms Khadgi since the non-compliance.
(k)any contribution made by the holder to the community [reg. 2.41(k)]
Ms O’Donoghue does not discuss any specific contribution made by Ms Khadgi to the Australia community, however as mentioned above, Ms Khadgi hopes to obtain employment in the hospitality industry and pursue further studies.”
On 9 March 2009 Ms Khadgi changed her migration agent and submitted an application for review of the delegate’s decision to the Migration Review Tribunal. On 1 April 2009 the Tribunal wrote to Ms Khadgi inviting her to comment on or respond to certain information. At [CB 185] the Tribunal stated in its letter:
“If the Tribunal finds that you breached s.103, the Tribunal must consider whether the cancellation of your Subclass 880 visa is the correct or preferable decision. In considering whether the decision to cancel your visa is the correct or preferable decision, the Tribunal must consider all your circumstances and have regard to the prescribed circumstances in r.2.41 of the Regulations. The Tribunal invites you to provide information with respect to these matters.
Regulation 2.41:
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.”
In response Ms Khadgi submitted a statutory declaration [CB 194-203] which concentrated on her response to Mr Graniero’s statement. It sought to persuade the Tribunal that it could not be relied upon. She also submitted a further statutory declaration [CB 204-212] dated 28 April 2009 in which she dealt with some specific questions in the Tribunal’s letter but she did not deal with those matters referred to in Regulation 2.41. On 7 July 2009 Ms Khadgi and her migration agent attended a hearing before the Tribunal during which a further TRA result letter dated 10 February 2009 was handed up which indicated that Ms Khadgi had satisfied the department that she had completed 900 hours of training. Ms Khadgi also handed up certain letters which are referred to in the Tribunal’s decision. On 4 December 2009 the Tribunal handed down its decision affirming the delegate’s cancellation of Ms Khadgi’s visa.
On 24 December 2009 Ms Khadgi filed an application with this court seeking review of the Tribunal’s decision. There were two grounds of application but only the first was pressed:
1.The Tribunal failed to have regard to the consideration set out in Regulation 2.41(f)(k) of the Migration Regulations 1994 (Cth) which are mandatory considerations by virtue of s.109(1)(c) of the Migration Act 1958 (Cth) “the Act”.
In its reasons for decision the Tribunal made reference at [14] [CB 240] to Regulation 2.41:
“[14]If the Tribunal decides that there was non-compliance by the applicant in the way described in the s.107 notice then it will be necessary to consider whether it is appropriate that the visa be cancelled. The power contained in s.109 is discretionary. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to the matters prescribed in r.2.41 of the Regulations.”
At [49] the Tribunal made reference to its letter of 1 April 2009 in which it asked the applicant to comment on the matters raised in Regulation 2.41 and details the submission received on 28 April 2009. It makes no further reference to Regulation 2.41 in its paraphrase of the letter presumably because the applicant did not do so either. The Tribunal then proceeds at [64] [CB 251] to commence to deal with the Tribunal hearing. At [128] [CB 264] the Tribunal found that the applicant had provided a bogus document and had breached s.103 of the Act. The Tribunal found that there was non-compliance with s.103 in the way described in the s.107 notice. The Tribunal proceeded at [129]:
“[129]As the Tribunal has decided there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1).
At [132 – 138] the Tribunal deals with discretionary matters (a) to (e) in a manner which is not challenged by the applicant. Commencing at [139] [CB 266] it deals in the following manner with sub-s.(f) to (k):
“[139]There is no information before the Tribunal about the applicant’s subsequent behaviour.
Any other instances of non-compliance by the visa holder know to the Minister
[140]There is no evidence of other instances of non-compliance by the applicant or of breaches of the law.
The time that has elapsed since the non-compliance.
[141]The applicant applied to TRA for her skills to be assessed for migration on 1 May 2006 and applied for a Subclass 880 visa on 22 June 2006.
Any breaches of the law since the non-compliance and the seriousness of those breaches
[142]The Tribunal is not aware of any further breaches of the law.
Any contributions made by the holder to the community
[143]The applicant stated that she is not a member of any clubs or of a Nepalese association. She is working in retail at a chemist shop. The applicant provided a letter from TRA dated 10 February 2009 stating that her application for assessment of her skills as a Cook for the purposes of migration had been successful.”
Mr Reynolds, who appears on behalf of Ms Khadgi, says that the jurisdictional pre-requisite to have regard to the circumstances contained in Regulation 2.41(a) to (k) of the Regulations was not met because the Tribunal did not consider Regulation 2.41(f) to (k):
“It may bear reference to these matters at [139 – 143] but this was insufficient to amount to compliance with s.109(1)(c) having regard in particular to the reasoning and outcome in Zhong v Minister for Immigration (2008) 171 FCR 444 at [83 – 86] which concern the same statutory provisions. These paragraphs do not suggest that the Tribunal considered the circumstances set out in Regulation 2.41(f) to (k) vis a vis whether the discretion should be exercised being the critical question. See more generally NAJT v Minister for Immigration [2005] 147 FCR 51 at [212] and Lafu v Minister for Immigration [2009] 122 ALD 1 [2009] FCAFC 140 at [48 – 49].”
The applicant starts by referring the court to the meaning of “consider” found by the High Court in Tickner & Ors v Chapman & Ors (1995) 57 FCR 451 at [462] per Black CJ:
“The meaning of “consider” used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary (second Ed) as “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of” consideration of a document such as a representation or a submission (there is little if any difference between the two for these purposes) involves an active intellectual process directed at the representation or submission.”
The court in that case was turning its mind to the question of who was to do the considering. The question at issue was whether or not the Minister himself considered the report or representations. Burchett J noted that although a Minister could not delegate his functions and duties he could be assisted in ascertaining the facts and contentions contained in the material; but it was up to the Minister to ascertain them. Keifel J held at [495 – 496]:
“To “consider” is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s.10(1)(c) speaks is not different. It requires that the Minister have regard to what he said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them.”
The definition extracted by Black CJ in Tickner was referred to with approval by Madgwick J in NAGT v Minister for Immigration [2005] 147 FCR 51 at [212]:
[212]There was no independent requirement on the delegate so to check. Nevertheless, given the potential importance of the letter and the delegate’s fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], a ‘decision-maker may be aware of information without paying any attention to it or giving it any consideration’. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration — had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in ‘an active intellectual process’ in relation to the letter — yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.
[213]Plainly, to have regard to all the available information is an inviolable duty of the Minister or delegate before refusing a visa. The appellant is entitled to relief because of the delegate’s failure to do so.
The applicant argues the failure to consider a mandatory matter constitutes a failure to take into account a relevant consideration that constitutes jurisdictional error; Minister for Aboriginal Affairs v Peko Wallsend Limited (1985) 162 CLR 24 at [39] per Mason J. The respondent argues that:
“What is required by the Tribunal is an active intellectual consideration where the consideration is a central element in the consideration of a decision maker or something of sufficient weight or importance: Peko Wallsend Ibid at [39 – 40], Telstra Corporation Limited v Australian Competition and Consumer Commission (2008) 107 ALD 474; [2008] FCA 1758 at [103 – 112] approved and applied in Telstra Corporation Limited v Australian Competition Tribunal [2009] FCAFC 23 at [267] per Jacobsen, Lander and Foster JJ. On the facts of this case it is clear that none of the items were items in (f) to (k) of Regulation 241 were ultimately central to the exercise of the Tribunal’s discretion. On the facts, nor would one expect them to be. Section 109 requires their consideration, but the exercise of the Tribunal’s discretion evidently did not turn upon them.”
The difficulty I have with this submission is that in Zhongv Minister for Immigration (2008) 171 FCR 444 Lander J on appeal from this court said at [83]:
“[83]However, there is another reason why in my opinion the decision cannot stand. The Federal Magistrate also fell into error, in my opinion, in his consideration of the third ground. Section 109(1)(c) of the Act requires the Minister or the Minister’s delegate to have regard to any prescribed circumstances in considering whether the visa ought to be cancelled. Regulation 2.41 prescribes any contribution made by the (visa) holder to the community as a prescribed circumstance: reg 2.41(k). Thus, there was an obligation upon the delegate to give consideration to that matter. On review the Tribunal exercises all the powers and functions of the decision maker under review. It does not appear that the Tribunal gave specific consideration to that matter except that it noted that the appellant said that when he was working he paid tax which the Tribunal said indicated that the appellant "made some contribution to the community."
Clearly his Honour in similar circumstances considered that the matters referred to in Regulation 2.41(a) to (k) did require consideration. His Honour said at [85]:
“[85][W]hilst 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].
[86] A 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.”
The applicant relies very heavily on what fell from his Honour in Zhong. She suggests that it is absolutely on point and that I should apply it. Whilst I am prepared to accept that argument I am still required to find whether or not this Tribunal in this case failed to give consideration to the matters required by Reg. 2.41.
I am unable to say that I am assisted by Zhong in coming to what is essentially a factual conclusion as to what the Tribunal may have done in the instant case. The appeal decision does not set out those parts of the Tribunal’s decision where that applicant’s contribution to the community was discussed although it appears from the decision of Baumann FM at [29] that:
“The statements of community contribution relied upon (additional to payments of taxation) were generally referred to at paragraph [38] to [41] of the reasons of the learned member. Whilst these activities are not specifically mentioned at paragraphs [134] and [148] of the reasons I do not regard it as being necessary for the MRT to do so.”
The MRT decision in Zhong was not before me so I am unable to compare the quantity or quality of the purported consideration in that case with what occurred in the instant case. Suffice to say that it would appear that there was reference to factors of community contribution by the applicant to the Tribunal but it was not sufficient to satisfy what Lander J saw as the need to “specifically enquire”. I take from this that it is not enough to show that there was some discussion to conclude that a matter was considered. The court must be able to assess the quality of that discussion to decide whether it amounts to a specific enquiry and thus consideration in the Chapman v Tickner sense. Thus each of the items (g) to (k) need to be considered. In considering them I shall take into account the oft quoted observations of the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]:
“[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.”
And the decision of the Full Court Lindgren, Rares and Foster JJ in Lafu v Minister for Immigration [2009] FCAFC 140. In that case it was accepted that the Tribunal was required to take into account the question of deterrence in a s.501 visa cancellation issue when that matter was required to be taken into account by Direction 21 of the Minister’s Directions. The first instance Judge found deterrence had been taken into account and made reference to four paragraphs in the AAT decision about it. These four paragraphs were revealed to be identical to a similar four paragraphs in another AAT decision by the same Tribunal member and her Honour accepted that the AAT’s observations read in isolation were capable of giving rise to a suspicion of abstract recitation of principal irrespective of the facts in the individual case. Her Honour also applied the views expressed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at [272] and understood the need for an engagement by the AAT in “an act of intellectual process” per Tickner v Chapman at [462]. The Full Court opined:
“[49]When the allowances called for by this passage [Wu Shang Liang] are made, we remain of the view that the AAT’s reasons for decision fall on the wrong side of the line: they do not show an active intellectual engagement with the question how the factor or consideration of general deterrence was taken into account, and therefore whether it was taken into account at all, in the exercise of a discretion to cancel. Mr Lafu would be left to guess what role, if any, the issue of general deterrence had played. Yet it will be recalled (see [32] above) that Mr Lafu had expressly submitted that "[g]iven the lack of publicity about the matter, and the lack of any gang involvement, cancelling the applicant’s visa would have no deterrent value".
[50] We do not think that the structure of the AAT’s reasons for decision is to be ignored. It was at [124]-[127] that the AAT deliberately turned its attention to the requirement that it consider a question of general deterrence, yet we find in those paragraphs no engagement with the question how the AAT considered the way, if any, that the issue of general deterrence related to the facts of Mr Lafu’s case.”
…
[53]We are not persuaded that the passage from WAEE set out at [45] above signifies that the AAT was relieved from giving reasons as to the actual relevance general deterrence had to its decision to affirm the cancellation of Mr Lafu’s visa. In the present case the AAT did expressly refer to the issue of general deterrence in the statement of its reasons. The problem is that [124]–[127] where the AAT did so, turn out, upon analysis, not to expose a consideration of the question of general deterrence as it relates to the facts of the present case at all.
[54]Notwithstanding her Honour’s careful analysis, our own careful analysis of the AAT’s reasons convinces us that so far as those reasons reveal, the AAT did not reach a conclusion in relation to whether and to what extent general deterrence was relevant to the circumstances of Mr Lafu’s case. Apart from reciting the requirement that that factor be taken into account, the AAT’s reasons do not indicate whether the AAT was influenced, and if so by what process of reasoning, by the factor of general deterrence, in deciding that Mr Lafu’s visa was to be cancelled. We conclude that the AAT did not give real consideration to the factor of general deterrence as it related to the individual circumstances of Mr Lafu’s case.”
What I take from Lafu is that where there is a prima facie indication that the Tribunal has not fully engaged with a required criteria the court will examine the statement of reasons with some care so that it can decide whether the manner in which the Tribunal dealt with the particular criteria came up to the required standard.
“The Subsequent Behaviour of the Visa Holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
[139]There is no information before the Tribunal about the applicant’s subsequent behaviour.” [CB 266]
When this topic was considered by the delegate [CB 163] he noted:
“Ms O’Donogue on behalf of Ms Khadgi has responded to both the notice of intention to consider cancellation under s.109 sent on 17 September 2008 and to the additional information forwarded on 7 November 2008.”
My reading of this criteria is that it has much in common with the consideration given by sentencing Judges to the manner in which a convicted person acted following charges being laid. It is clear that Ms Khadgi, through a migration agent, co-operated with the department and she went further. Although denying the truth of Mr Graniero’s statements and maintaining her position that she had completed 900 hours of work experience, she sought and obtained a new TRA in respect of which the work experience has not been impugned. The Tribunal’s responsibility is to engage with the criteria, not to get its decision upon the criteria right. If it had indicated in its reasons for decision that it did not consider the consideration given by the delegate to this criteria was responsive or that the applicant’s new TRA should be considered under this criteria then the court would be able to identify an appropriate level of engagement. The one line sentence at [139] compares unfavourably with the more detailed consideration given to other criteria between [132] and [138]. The Tribunal did invite the applicant to comment upon this and all the other criteria in its letter of 1 April 2009 [49] [CB 247]. Whilst the matter was not specifically addressed in Ms Khadgi’s response it could be said this was understandable as she was attempting to establish the bona fides of her application. Her agent did send the new TRA to the Tribunal at a later date. There is nothing in the Tribunal’s record that indicates that it took the applicant through these criteria at the interview and recorded her response. References to the criteria are found in the findings and reasons section and not in the “the Tribunal hearing” section where one would expect to see a report of such questions and answers. There is a reference at [87] [CB 255] where the Tribunal says:
“The Tribunal informed the applicant that if it finds that it is a bogus document and the applicant has not complied with s.103 of the Migration Act then the Tribunal has to consider the prescribed circumstances in Regulation 2.41.”
And at [89] [CB 255]:
“The Tribunal informed the applicant that it had received submissions and her statutory declarations but also asked the applicant if there was anything she wanted to add in relation to matters under Regulation 2.41. The applicant referred to the recent TRA letter. The Tribunal asked the applicant if she had made any contribution to the community. She stated that she is not a member of any clubs or of a Nepalese association.”
These extracts seem to me indicative of a finding that the Tribunal did not really address criteria 2.41(f) in a manner that could be said to be engaging with it. Rather than addressing each sub-paragraph of the criteria individually with the applicant it sought to utilise the applicant’s responses to other questions and where there appeared to be no relevant response dealt with the matter in a one line manner found in the extracted paragraphs of the reasons:
“Any other incidences of non-compliance by the visa holder known to the Minister
“ [140]There is no evidence of other instances of non-compliance by the applicant or of breaches of the law.”
The respondent argues that this is a statement of a matter of fact which does not require any further elucidation. But the Tribunal’s job is to consider whether the fact that there is no evidence of other instances of non-compliance should weigh upon its decision to cancel the visa. It is not for the court to criticise the Tribunal on the amount of weight it might apply, but the court should be satisfied that the Tribunal considered whether or not to apply it. The Tribunal’s conclusions in relation to the whole application are found at [149] [CB 266]:
“The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the circumstances, the Tribunal is satisfied that the applicant’s Subclass 880 visa should be cancelled.”
That is all. There is not even a passing acknowledgment to the factors under Regulation 2.41. The respondent asks the court to find that the Tribunal did actively engage with all of those matters and conclude in respect of them that they did not outweigh the seriousness of the applicant’s breach of s.103. Whilst this is subtly different from “excusing the Tribunal from its statutory obligation to enquire” Zhong at [85] and [86] I am not satisfied that this is an inference that I can make from the face of the document.
“The time that has elapsed since the non-compliance.
[141]The applicant applied to TRA for her skills to be assessed for migration on 1 May 2006 and applied for a Subclass 880 visa on 22 June 2006.”
It would seem to me that the purpose of making this a matter that the Tribunal should take into account is because if, for instance, the non-compliance was minor and the time between the non-compliance and the review was lengthy, a decision maker might feel that the applicant’s otherwise blameless continuation in the country under the terms of the visa would militate against its cancellation. There is nothing in the decision record that indicates that the Tribunal discussed this aspect of this matter with the applicant or, even without discussing it, gave some thought to the length of time between 2006 and 2009; and so again I could not be satisfied that there was sufficient engagement with the issue.
“Any breaches of the law since the non-compliance and the seriousness of those breaches
[142] The Tribunal is not aware of any further breaches of the law.”
Once again one might expect the Tribunal to indicate whether this factor was considered by it to be positive, neutral or negative in the decision making process but nothing is said and the matter was not addressed directly with the applicant.
“Any contributions made by the holder to the community
[143] The applicant stated that she is not a member of any clubs or of a Nepalese association. She is working in retail at a chemist shop. The applicant provided a letter from TRA dated 10 February 2009 stating that her application for assessment of her skills as a Cook for the purposes of migration had been successful.”
The applicant made much of the fact that the Tribunal did not consider that the applicant’s payment of tax, whilst working, as a contribution to the community. This was a matter which loomed large in Zhong where the applicant made that suggestion to the Tribunal and the Tribunal responded:
“Against this evidence, the Tribunal has accepted that the review applicant has made some contribution to the community through the payment of tax and that he has been in Australia for a reasonably lengthy period.”
The fact that the Tribunal may have overlooked a particular contribution that had not been put forward by the applicant can hardly lead to a finding of jurisdictional error. The court in Zhong found in the circumstances of that case that even though the Tribunal had noted that the applicant put this forward as a contribution it did not satisfy it that the Tribunal “specifically enquired into any contribution made by the holder to the community.” I would not have taken that view in respect of the matters raised by this applicant if I could have seen how the Tribunal had treated them. But I cannot. The claims are merely set out without comment.
I am of the opinion that the obligation to consider the matters in Reg. 2.41 should not just be noted. The Tribunal should at best clearly indicate how it has engaged with them and at the very least allow such an inference to be drawn from the whole of the content of the decision document. I regret that in an otherwise thorough examination of the applicant’s situation, and in particular of the “bogus document” issue, the Tribunal failed to do this in respect of the four criteria 2.41(f) to (k) and thus fell into jurisdictional error by not taking into account relevant considerations. I will grant the applicant the constitutional writs sought and order that the First Respondent pay her costs which I assess in the sum of $5,800.00.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 8 June 2010
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