Krummery v Minister for Immigration
[2005] FMCA 264
•11 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KRUMMERY v MINISTER FOR IMMIGRATION | [2005] FMCA 264 |
| MIGRATION – Sub-Class 976 visa; breach of condition of visa; complaint made as to non-observance of procedural requirements by delegate but not raised before the MRT; breach of s.119 but remedied by conduct of proceedings in MRT . |
Migration Act – ss.41(3), 116(1)(a)(b), 119, 120, 348, 349, 474
Migration Act Regulations – 2.05, sub-class 956 visas, condition 8112
Cebreros v MIMIA [2002]AATA213
Cebreros v MIMIA 34AAR 529
Zhao v MIMIA [2000] FCA 1235
Zubair v MIMIA [2004] FCAFC 248
Zubair v MIMIA [2003] FMCA 40
Plaintiff S157/2002 195ALR24
Jadwhan Pty Ltd v Secretary Department of Health [2003] FCAFC 288
Yilmaz v MIMIA (2000) 100FCR 495
Ahmed v MIMIA [2004] FMCA 127
Wang v MIMIA [2002] FCA 167
Zhang v MIMIA [1999] FCA 84
| Applicant: | WOLFGANG OTTO KRUMMERY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | ADG 294 of 2003 |
| Delivered on: | 11 March 2005 |
| Delivered at: | ADELAIDE |
| Hearing date: | 18 May 2004 |
| Judgment of: | LINDSAY FM |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Patel |
| Solicitors for the Applicant: | Patel & Co |
| Counsel for the Respondent: | Mr M. Roder |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application for review is dismissed.
FEDERAL MAGISTRATES |
ADG 294 of 2003
| WOLFGANG OTTO KRUMMERY |
Applicant
And
| MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Migration Review Tribunal (hereinafter “the Tribunal”) of the 28 November 2003.
By that decision the Tribunal affirmed the decision of the Minister’s delegate to cancel the Electronic Travel Authority (Business Entrant-Long Validity) (Class UD) sub-class 956 visa held by the applicant.
The applicant first entered Australia in 1995 and between 1996 and 2000 visited Australia each year under a sub-class 976 visa. He arrived in Adelaide on 28 June 2000 as the holder of a sub-class 956 visa valid until 28 September 2000 with the right of multiple entries.
He arrived at Adelaide airport on 27 October 2002 in the company of his wife. On that day he held a sub-class 956 visa valid until 9 May 2003.
On 30 October 2002 the applicant was issued with a written notice of intention to cancel his visa. The applicant attended an interview with the delegate on 30 October 2002. On that same day the delegate proceeded to cancel the applicant’s visa.
The matter first came before me on 23 February 2004 and I heard argument on 18 May 2004.
By that time the visa had been expired for approximately twelve months.
I was told that the applicant had held bridging visas since the cancellation of his visa.
I have been asked therefore to review the cancellation of a visa which had long expired before the hearing. That the visa had expired only came to the attention of the respondent’s counsel during the course of the hearing on 18 May 2004. He submitted to me on that day, in addition to all of his other arguments, that the review should be dismissed as the remedy was futile. I gave each of the parties the opportunity of filing supplementary written submissions on the topic of futility but only the applicant did so. His counsel maintained that the review was not futile as any setting aside of the decision of the Tribunal would have an impact upon his entitlement to a fresh visa. Reference was made to the decision of Cebreros v MIMIA [2002] AATA 213. I was not referred to but I have also considered the decision of the Federal Court in the appeal from that decision reported at 34 AAR 529. The applicant’s contention as to the utility of proceeding with the review is not disputed by the respondent and so I will proceed to determine the review.
The conditions attaching to the Visa
Section 41(1) of the Migration Act provides that “visas are subject to specified conditions”. Section 41(3) enables the Minister to specify such conditions in the regulations to the Act. Regulation 2.05 provides that the conditions to which a visa is subject are the conditions set out in that part of Schedule 2 that relates to the visas of the sub-class in which the visa is included. Sub-rule 2 uses the expression “the conditions ……….. are the conditions set out (in the relevant part of the Regulations)”.
The Regulations go on to provide that with respect to Sub-Class 956 visas “Conditions 8112, 8201, 8205, 8527 and 8528 must be imposed”. I will deal with them separately but pause to consider the applicant’s contention that, whatever else the Tribunal did, it could not rely on s.116(b) of the Migration Act (“the Act”) because the Regulations required a separate administrative act to impose the relevant conditions. This may explain, so the argument goes, why none of the imposed conditions appear on the relevant visa (see page 51 of the Book of Documents) as endorsements.
Certainly that part of the Regulations containing the Sub-Class 956 requirements could be better expressed. A 956 visa cannot issue without the conditions imposed. When it does issue it must be taken to issue replete with the conditions. It would not be a valid 956 visa if it did not. So much is clear from s.41(1) and Regulation 2.05. So I do not consider the Act and Regulations require a separate act of imposition of conditions.
The conditions imposed are:
8112
the holder must not engage in work in Australia that might otherwise be carried out by an Australian citizen or an Australian permanent resident.
8201
while in Australia the holder must not engage, for more than 3 months, in any studies or training.
8205
(not relevant to facts of this case)
8527
(not relevant to facts of this case)
8528
(not relevant to facts of this case)
The Hearing before the Tribunal
The hearing proceeded pursuant to s.347 and s.348 of the Act. The delegate’s decision was an “MRT reviewable decision” in terms of s.338(3) of the Act, or, at least, so much was not disputed by the parties. The delegate cancelled the visa of a non-citizen who was in the “migration zone” at the time of cancellation and not in “immigration clearance”.
The Tribunal considered a host of written material from the MRT case file and the Departmental file and then heard evidence from the applicant and three witnesses. The evidence of the latter was not contentious to any relevant degree.
The written material indicated that an Inspector had spoken to the applicant at the airport on 27 October 2002 when the applicant advised that he was the owner/operator of a business in Adelaide and that he and his wife had been in and out of Australia every three months for one day since June 2000. The applicant came to the attention of the inspector when at the airport greeting his son who was arriving “to work for his father”. The son’s 976 visa was cancelled and he was denied entry to Australia.
As noted above the notice of intention to cancel (NOIC) was served on 30 October 2002. It specified a breach of condition 8112. The applicant responded to the NOIC on that same day. He said his business was running well. He intended to open a second breach in May 2003. He was “settled” in Australia and did not feel foreign. He did not apply for a 457 visa as he was worried that his age would work against his approval and also worried as to his finances in that regard.
The delegate cancelled the visa, on the basis that the ground for grant of the visa no longer existed and that the condition 8112 had been breached.
Before the Tribunal, no issue was taken as to the observance of the requirements of s.119 of the Act. That section provides:
Notice of proposed cancellation
(1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under s 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:
(a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.
(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.
(3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.
(4) The other provisions of this Subdivision do not apply to a cancellation:
(a) under a provision other than s 116; or
(b) to which Subdivision F applies.
The Tribunal found, in any event, that the relevant notice procedures had been fulfilled.
The applicant’s case before the Tribunal was that he thought that he had complied with the terms of the visa by leaving Australia every three months. He agreed that he intended to open a second business and build a home in Australia (the delegate appears to have been told of the latter intention on 30-10-02) but neither plan had come to fruition. He said he was never counselled about the conditions on which the visa issued. However, when the (relevant) conditions were read to him by the Tribunal, he denied that he had breached them. He would be penniless if he had to return to Germany.
The Tribunal was satisfied that the applicant no longer intended to temporarily reside in Australia and that consequently, pursuant to s.116(1)(a) the circumstances that permitted the issue of the visa in June 2000 no longer existed. Secondly, the Tribunal found that the relevant condition had been breached (s.116(1)(b)). Thirdly, the Tribunal in the exercise of its discretion considered that the visa should be cancelled. It gave detailed reasons (see pp 76-77 of the Book of Documents) for so doing.
The Case for the Applicant upon the Review
Firstly, it is contended that the NOIC was inadequate. Section 119 requires that not only must the ground for cancellation be given but also the information which gives rise to the ground.
Here, the NOIC was very brief and cannot be interpreted as providing more than the ground itself. The facts which enlivened the ground are not mentioned.
The statutory scheme for notice giving was considered in Zhao v MIMIA [2000] FCA 1235. The Full Court of the Federal Court at paragraph 25 noted:
“s 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open. The supporting information will include a description of any evidence upon which the grounds are based. The grounds, as particularised, may be inferences from the evidence and in that sense conclusionary. The other element of the notice is the invitation to the holder to show, within a specified time, that the grounds do not exist or that there is a reason why the visa should not be cancelled. It is important to note that the terms of the invitation do not reflect the imposition upon the visa holder of a statutory onus at this point which, if not satisfied, will result in the visa being cancelled”.
Section 119 is, in effect, a prescription by the legislation of the rules of procedural fairness by which the issue of the cancellation of the visa will be determined. If s.119 has not been followed, bearing in mind what was said in Zhao (supra), then one would think that a finding of jurisdictional error would follow.
The NOIC is very brief. It cannot be said to contain the information background required. The reference to the condition is not very helpful standing on its own, especially when the condition does not appear on the visa itself. I cannot think that the notice could be regarded as complying with s.119.
But does that matter where, as here, there has been a hearing before the Tribunal, in which, as is evident from the decision, all of the factual matters which might, or should, have found their way into the notice, have been traversed in detail in the presence of the applicant and he has been able to, and has given, his response to those matters?
The answer to that is, it will matter if the non-compliance – the jurisdictional error – has the effect of vitiating the delegate’s determination such that there has been, in effect, no determination at all.
The notice-deficiency point was not pursued in any direct way before the Tribunal. But it is clear that in determining the merits-based review before them, the Tribunal dealt with all of those issues which arose as to the question of whether the visa should be cancelled and that necessarily meant those issues one would have expected to find in the notice. I cannot determine, in any event, that the failure to provide the relevant information in the notice meant necessarily that the applicant did not have the opportunity to challenge the delegate’s considerations on 30th October 2004. He in all likelihood did. But that would not matter if I were determining a review of the delegate’s decision (or probably would not matter). What does matter, though, is that every opportunity for challenge was given in the Tribunal.
This is how I understood the respondents point about the matter not having been raised before the Tribunal. That would not be determinative or even persuasive in itself had not the way in which the Tribunal dealt with the review necessarily encompassed a consideration of the same issues that ought to have been in the notice in the first place.
Of course, the notice point may not have been taken because the applicant well knew anyway the matters that had made his visa liable to be cancelled. I cannot find to this effect conclusively.
Section 349 of the Act gives the Tribunal broad powers of review. Section 348 obliges the Tribunal to conduct the review once it is properly instituted.
The law as to the Tribunal’s standing with respect to a determination of a delegate flawed on account of jurisdictional error is surely well settled (see the decision of the Full Court of the Federal Court in Zubair v MIMIA [2004] FCA FC 248 at paragraph 28 in particular, confirming the decision of Raphael FM in Zubair v MIMIA [2003] FMCA 40).
I do not propose to set out herein all of the principles and authorities discussed in that decision. Reference was made, however, by the applicant in this case to the High Court decision of Plaintiff S 157/2002 195 ALR 24, at 76, where in the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ the following sentence appears:
“This Court has clearly held that an administrative law decision which involves jurisdictional error is regarded as no decision at all”.
Their Honours then refer in a footnote to that sentence to Bhardwaj (2002) 209 CLR 597.
But this passage, and the reliance on Bhardwaj (supra) is dealt with in the Full Court of the Federal Court decision in Jadwan Pty Ltd v Secretary Department of Health [2003] FCAFC 288, at paragraphs 41 and 42:
“In the accompanying footnote, their Honours cited Bhardwaj, referring to the passage at [51] in the joint judgment of Gaudron and Gummow JJ, to McHugh J’s agreement at [63], and to the judgment of Hayne J at [152]. As was the case in Bhardwaj itself, their Honours did not deal in S157 with the possible status of an administrative decision affected by jurisdictional error in the absence of a challenge to its validity, or after a court has found such error to have existed, but has declined to treat the decision as a nullity”.
[42] In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that is shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-9; 153 ALR 490 at 515:
“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition””.
As the Full Court in Zubair (supra) makes plain, the text of the Act signifies that the Tribunal has full power to review the decision brought before it, in that regard it is no different from the Refugee Review Tribunal whose provision in relation to an invalid decision were discussed in Yilmaz v MIMIA (2000) 100 FCR 495.
To the extent that Driver FM in Ahmed v MIMIA [2004] FMCA 127, especially at paragraph 27, appears to suggest that a departure from the requirements of ss.119 and 120 falls into a different category of case where the Tribunal has no power to affirm the decision but can only set it aside, he must be taken to be in error.
It is plain from a reading of the Tribunal’s decision that at the hearing before it, the applicant well understood the basis upon which he was said to be liable to a cancellation of his visa. The specific conditions were read to him. He gave and called evidence as to all of the circumstances of his travels in and out of Australia and of his business and family.
I reject the submission that any non-observance of the requirements of ss.119 or 120 of the Act by the delegate entitles him to any of the relief sought in this Court.
Reference was made to the decision of Mansfield J in Wang v MIMIA [2002] FCA 167. That was a review of the delegate’s decision not to cancel the revocation of a visa in respect of an applicant outside of Australia. The relevant statutory scheme – ss.128-131 – were different but in any event this was a review of the delegate not of the Tribunal (Mansfield J interpreted s.474 of the Act as not depriving him of the ability to determine a review of a decision made in the absence of an essential condition to the exercise of the power to make the decision, and did so before Plaintiff S157 (supra) had been determined). I have already explained why it is that the circumstances of this review mean that no reliance can be placed on a departure from statutory prescriptions of procedural fairness.
There is a challenge to the Tribunal’s reliance on s.116(1)(a) and (b).
I will deal with the change of circumstance argument first.
Reliance was placed on the decision of the Full Court of the Federal Court in MIMIA v Zhang [1998] FCA 84. That case emphasises the need to remember that in relying upon s.116(1)(a) the Minister must not confuse the issue of once-existing circumstances no longer existing with the altogether discrete issue of breach of or non-adherance to conditions. In Zhang the actual change was in the Minister’s attitude to the genuineness of the reasons for which the visa was sought. His own satisfaction with those reasons changed and the Court determined that such could not be the change in circumstance alleged.
One cannot help but discern that the applicant here had no intention to adhere to the conditions attached to the visa from the outset, whether from confusion as to what he was and was not permitted to do or for more opportunistic reasons, it is not possible for me to say. Certainly, when he is read the actual text of the conditions by the Tribunal his response – to deny he had breached them – suggests an element of wilful “confusion” about his obligations.
The visa was intended to allow the applicant to enter Australia temporarily for business purposes provided that he did not carry out work in Australia that a citizen or permanent resident could do.
By the time of the delegate’s determination, the applicant has:
a)decided to open a second business;
b)become “settled” in Australia;
c)ceased to “feel foreign”;
d)formed an intention to build a home in Australia;
e)sold off all his assets in Germany.
We must infer that none of these circumstances existed at the time of the grant of the visa in 2000, or at the very least that they did not exist in aggregate. If they did, the applicant would not have been entitled to obtain a visa with the characteristics summarised above. There is nothing “temporary” about these matters. They are not merely suggestive of but constitutive of “permanence”. I think we can infer that a state of affairs existed at the time of the grant of the visa which was consistent with the issue of the visa. The applicant cannot invite us to posit a state of affairs inconsistent with the issue of the visa and then aver, in accordance with Zhang (supra), that there has not been a change in circumstances for the purposes of s.116(1)(a). The Tribunal does not go so far as to say that the applicant never had the relevant intention. It says that his intentions had changed and changed impermissibly and I think they are right.
The same matters the Tribunal relied upon as persuading them of the change also constituted the facts relevant to non-compliance with the conditions (s.116(1)(b)). There cannot be a serious contention that the importation and installation of ceiling panels and flooring is the kind of work precluded by the imposition of condition 8112. The applicant told the Tribunal he was doing such work and intended to do more of it at a second business he proposed to set up.
I have already dealt with the contention that the conditions did not apply because there was no second and separate act of their “imposition” on the visa. They did apply whether or not they were endorsed on the visa. The issue of the applicant’s knowledge of the terms of the conditions is not without doubt, though the reasons he advanced for not applying for a sub-class 467 visa portray perhaps awareness of these very terms. But his knowledge cannot be determinative of this question of the breach of conditions. It may have been relevant to the exercise of the discretion and I now turn to that.
In considering the Tribunal’s findings I must bear in mind that I am not undertaking a merits review. That is not the function of this review. The tribunal have weighed a number of matters in determining whether the visa should have been subject to cancellation in the light of their findings. One of those matters was the reluctance to apply for the appropriate visa, noted above. In the end they are not able to pronounce determinatively whether the breach was deliberate. They were in no doubt, however, of the failure to give compliance (see paragraph 51 of their Reasons, p 77 of the Book of Documents). That degree of comfort in their finding was clearly of importance to the Tribunal in their overall decision. Against that, it is difficult to say to what extent the invitation to the son to work in the business - clearly not something the son was permitted to do, influenced the findings as to change in circumstance, the breach or the final exercise of discretion. It was expressed as a matter (see paragraph 52) that went to his credibility.
But in any event I am very far from being persuaded that the exercise of that discretion is one with which I should interfere. The matters taken into account are appropriate and the weight to be given to each were matters for the Tribunal. It is not for me to interfere with these evaluative matters.
The application for review is dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: S. Smart
Date: 10 March 2005
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