Krummrey v MIMIA

[2005] FCAFC 258

FEDERAL COURT OF AUSTRALIA

Krummrey v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 258

MIGRATION – cancellation of visa for breach of visa condition – whether visa subject to visa condition – where regulations provide that visa condition must be imposed – whether act of imposition required before condition can take effect.

MIGRATION – cancellation of visa where circumstances which permitted the grant of the visa no longer exist – where visa criteria required applicant to have an intention to visit Australia temporarily for business purposes – whether visa criteria required applicant to maintain such an intention.

Migration Act 1958 (Cth) s 41, subs 116(1), s 119

Migration Regulations 1994 regs 2.05, 2.43(1)(i)
Migration Regulations (Amendment) Statutory Rules 1996 No 75

Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314 followed
Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218 followed
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344 followed

WOLFGANG OTTO KRUMMREY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND MIGRATION REVIEW TRIBUNAL

SAD 67 of 2005

BRANSON, FINN AND LANDER JJ
21 DECEMBER 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 67 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

WOLFGANG OTTO KRUMMREY
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGES:

BRANSON, FINN AND LANDER JJ

DATE OF ORDER:

21 DECEMBER 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondents’ costs.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 67 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

WOLFGANG OTTO KRUMMREY
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGES:	BRANSON, FINN AND LANDER JJ
DATE:	21 DECEMBER 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT

1. The appellant challenges the validity of a decision of the Migration Review Tribunal (‘the Tribunal’) whereby a decision made by a delegate of the first respondent (‘the Minister’) to cancel his Electronic Travel Authority (Business Entrant – Long Validity) (Class UD) subclass 956 visa (‘the Visa’) was affirmed. 

2. The issues to be determined on this appeal from a decision of the Federal Magistrates Court are:

   (a)whether visa condition 8112 applied to the Visa;

   (b)whether the Tribunal failed to take into account a matter that it was required to take into account when determining whether to exercise the power to cancel the appellant’s visa pursuant to subs 116(1) of the Migration Act 1958 (Cth) (‘the Act’);

   (c)whether the Tribunal erred in its construction and application of par 116(1)(a) of the Act.

3. The appellant also formally argued that the Tribunal erred in affirming a decision that had been made by a delegate of the Minister (‘the delegate’) without s 119 of the Act having been complied with. He argued that each of Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344 (‘Zubair’) and Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314 (‘Ahmed’) was relevantly wrongly decided.  However, he acknowledged that this Court would regard itself as bound to follow these cases on this issue (see Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218 (‘Uddin’)).  We consider that, like the Full Court in Uddin, we should follow the approach adopted in Ahmed on this issue.

   FACTS

4. The appellant, who is a citizen of Germany, first visited Australia in 1995.  He came on a tourist visa.  Between 1996 and 2000 the appellant visited Australia every year on Electronic Travel Authority (Visitor) subclass 976 visas.  On 19 June 2000 he was granted the Visa.  The Visa was valid until 9 May 2003.  It authorized multiple entries into Australia and periods of stay of three months on each visit to Australia.

5. About one week after first travelling to Australia on the Visa the appellant registered the business name ‘Implex Exclusive’.  A business of importing and installing laminated ceiling and floor panels was carried on under that name, initially by the appellant and a business partner, but thereafter by the appellant alone.  The business apparently started slowly but prospered between 2001 and 2002.  In October 2001 the appellant’s wife arrived in Australia and adopted the role of housewife.  It appears that the appellant sought to meet the requirements of the Visa concerning the period of permissible stay in Australia by leaving Australia for a single day every three months.

6. On 27 October 2002 the appellant’s son arrived at the Adelaide airport on an Electronic Travel Authority (Visitor) subclass 976 visa.  When question by an officer of the Minister’s department he said, in effect, that he had come to Australia to work for his father.  The appellant and his wife, who were apparently at the airport to meet their son, were then questioned by the departmental officer.  The son’s visa was cancelled and he was denied entry to Australia.

7. On 30 October 2002 the appellant received a written notice of intention to consider cancellation of the Visa.

8. Under the heading ‘Possible grounds for cancellation’ the notice stated:

   ‘It has come to the Department’s attention that there may be grounds for cancellation of your visa under section 116 of the Migration Act 1958 for the following reasons …

   BREACH OF CONDITION 8112 – THE HOLDER MUST NOT ENGAGE IN WORK THAT MIGHT OTHERWISE BE CARRIED OUT BY AN AUSTRALIAN CITIZEN OR PERMANENT RESIDENT + THE VISA HOLDER DOES NOT INTEND ONLY TO VISIT AUSTRALIA TEMPORARILY FOR BUSINESS PURPOSES.

   If this is the case, your visa may be cancelled under:

   (Tick appropriate box and complete details)

ü s 116(1) (a) + (b) ’ (emphasis in original)

1. Within fifteen minutes of receiving the above notice the appellant was interviewed by the delegate.  The appellant argued against the cancellation of the Visa.  He said, amongst other things, that his business was doing well and that he was settled in Australia and did not feel foreign.  He explained that he had not applied for a Business (Long Stay) subclass 457 visa as he was worried that it would not be approved because of his age and also that he may not have had sufficient finances for the grant of that visa.

2. Within forty‑five minutes of the commencement of the above interview, the delegate decided to cancel the Visa.  In the written notification of the decision which was provided to the appellant the reasons for the decision were given as:

   ‘GROUNDS FOR THE GRANT OF THE VISA NO LONGER EXIST + VISA HOLDER IN BREACH OF VISA CONDITION 8112.’

3. The appellant sought review by the Tribunal of the decision to cancel the Visa.  As mentioned above, the Tribunal affirmed the decision of the delegate.

4. The Tribunal took the view that the evidence before it indicated that the delegate had followed the procedure set out in Subdivision E of Division 3 of Part 2 of the Act (‘Subdivision E’). The Tribunal found that the appellant had breached condition 8112 which was a condition of the Visa.

5. Condition 8112 is in the following terms:

   ‘The holder must not engage in work in Australia that might otherwise be carried out by an Australian citizen or an Australian permanent resident.’

6. In considering whether the Visa should be cancelled on the ground that the appellant had breached condition 8112 the Tribunal considered a number of factors.  None of them is suggested to have been inappropriate for consideration in the context of a breach of condition 8112.

7. The Tribunal noted that nothing in the evidence suggested that the department had misled the applicant.  It further noted that certain matters appeared in part to support the view that the appellant did not deliberately flout condition 8112.  However, the reasons for decision of the Tribunal go on to observe:

   ‘… there are other matters that cause the Tribunal concern – the review applicant’s admitted reluctance to apply for a Subclass 457 visa, his intention to build a home in Australia and his invitation to his son to travel to Australia to work in his business.  The review applicant’s admitted reluctance to apply for a Subclass 457 visa indicates a greater awareness of his situation than he has otherwise presented.  The Tribunal considers that the review applicant’s confirmed intention to build a home in Australia so substantially conflicts with the terms of his temporary visa that it makes nonsense of his claims of compliance.

   The evidence is that the review applicant’s son attempted to enter Australia to work for his father under a Subclass 976 visa – Electronic Travel Authority (Visitor) (ETA visa).  By operation of law (subclause 976.611) certain conditions including condition 8101 – the holder must not engage in work in Australia must be imposed on the grant of Subclass 976 visas.  The representative has submitted to the Tribunal that the review applicant “knew that a visitor ETA carried a NO WORK limitation because of the wording).’  The review applicant’s stated awareness of the terms of an ETA visa coupled with his invitation to his son to “work” for him in this country cause the Tribunal grave concern and give rise to a negative determination in relation to the review applicant’s credibility.’

8. The appellant applied to the Federal Magistrate’s Court for judicial review of the decision of the Tribunal.

   REASONS FOR JUDGMENT OF THE FEDERAL MAGISTRATES COURT

9. The learned Federal Magistrate (Lindsay FM) rejected the contention advanced on behalf of the appellant that the Visa was not subject to condition 8112.

10. His Honour accepted that the requirements of Subdivision E had not been complied with at the time of the decision of the delegate. However, his Honour observed that at the hearing before the Tribunal all of the factual matters which should have been referred to in the notice were traversed in detail in the presence of the appellant and he was able to give his response to those matters. The accuracy of his Honour’s observation is accepted by the appellant. On this basis his Honour concluded, in reliance on Zubair, that the Tribunal had jurisdiction to affirm the decision of the delegate.

11. The Federal Magistrate further concluded that the circumstances that permitted the grant of the Visa no longer existed within the meaning of par 116(1)(a) of the Act. His Honour considered it appropriate to infer that circumstances existed as at the date of the grant of the Visa that were consistent with the grant of the Visa but that the appellant thereafter formed an intention to remain permanently in Australia.

12. Finding no reviewable error in the exercise by the Tribunal of the discretion to cancel the Visa, his Honour dismissed the application for judicial review of the decision of the Tribunal.

    ELECTRONIC TRAVEL AUTHORITY VISAS

13. Subsection 31(1) of the Act provides that there are to be prescribed classes of visas. Subsection 31(3) authorises the criteria for a visa or visas of a specified class to be prescribed by regulations.

14. Electronic Travel Authority visas were first prescribed with effect from 1 August 1996 (see Migration Regulations (Amendment) Statutory Rules 1996 No 75). The statutory requirement of s 70 of the Act that, subject to the regulations, if a non‑citizen is granted a visa, an officer is to give the non‑citizen evidence of the visa, is met in the case of Electronic Travel Authority visas by the Migration Regulations 1994 (‘the Regulations’) providing that no evidence need be given of Electronic Travel Authority visas (see, for example, subitem 956.711 of Sch 2 of the Regulations).

15. Migration Series Instruction No 284 (‘MSI No 284’) has been issued in respect of Electronic Travel Authority visas.  Paragraph 1.1 of MSI No 284 reads as follows:

    ‘An ETA is an electronically recorded and stored authority for travel to Australia for which no application form is required.  Physical visa labels are not issued to ETA holders.  This instruction provides information and procedural guidelines covering the Electronic Travel Authority regime and in particular the Electronic Travel Authority (Class UD) visa.’

16. We note that a ‘fact sheet’ issued by the Minister’s department concerning Electronic Travel Authorities asserts:

    ‘Australia’s Electronic Travel Authority (ETA) is the most advanced and streamlined travel authorisation system in the world.

    The ETA is an electronically stores authority for travel to Australia for short‑term visits or business entry.  It replaces the visa label or stamp in a passport and removes the need for application forms.

    An ETA is issued within seconds by computer links between the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA), travel agents, airlines and specialist service providers around the world and the internet.

    …

    There are three ETAs: the subclass 976 Tourist (Short Validity) ETA; the subclass 977 Business (Short Validity) ETA; and the subclass 956 Business (Long Validity) ETA.’

    CONDITION 8112

17. Section 41 of the Act authorises the making of regulations under the Act that:

    (a)provide that visas, or visas of a specified class, are subject to specified conditions (subs 41(1)); and

    (b)authorise the Minister to specify that a visa is subject to such conditions as the regulations permit the Minister to specify (subs 41(3)).

18. Regulation 2.05 of the Regulations has been made in reliance on s 41 of the Act. Relevantly reg 2.05 provides:

    ‘(1)For the purposes of subsection 41 (1) of the Act (which deals with conditions that apply to a visa), the conditions to which a visa is subject are the conditions (if any) set out in, or referred to in, the Part of Schedule 2 that relates to visas of the subclass in which the visa is included.

    (2)For the purposes of subsection 41 (3) of the Act (which deals with conditions that may be imposed on a visa), the conditions that the Minister may impose on a visa are the conditions (if any) referred to as being conditions that may be imposed in the Part of Schedule 2 that relates to visas of the subclass in which the visa is included.’

19. The Part of Sch 2 of the Regulations that relates to Electronic Travel Authority (Business Entrant – Long Validity) subclass 956 visas provides in subitem 956.611 as follows:

    ‘956.611Conditions 8112, 8201, 8205, 8527 and 8528 must be imposed.’

20. It is clear that subitem 956.611 has been infelicitously drafted; neither s 41 of the Act nor reg 2.05 provides for conditions which ‘must be imposed’.  Either a visa is subject to specified conditions (subs 41(1)) and reg 2.05(1)) or the Minister may impose certain conditions on a visa (subs 41(3) and reg 2.05(2)).

21. The appellant contended that the words ‘must be imposed’ in subitem 956.611 are active and thus clearly require an act of imposing the condition before it can take effect.  To read subitem 956.611 in this way would be to render it invalid as being ultra vires.  We do not consider it appropriate to read subitem 956.611 so strictly.  In our view, the clear intention of subitem 956.611 is to ensure that Electronic Travel Authority (Business Entrant – Long Validity) subclass 956 visas are subject to the conditions identified in the subitem.  The concluding words of the subitem, namely ‘must be imposed’, are unnecessary to achieve this purpose. They may be regarded as mere surplusage. As condition 8112 is a condition set out in the Part of Schedule 2 of the Regulations that relates to Electronic Travel Authority (Business Entrant – Long Validity) subclass 956 visas, we conclude that visas of that class are subject to condition 8112.

22. We reject the contention that the learned Federal Magistrate erred in concluding that the Visa was subject to condition 8112.

    DID THE TRIBUNAL FAIL TO TAKE INTO ACCOUNT A MATTER REQUIRED TO BE TAKEN INTO ACCOUNT?

23. The appellant contended that, in determining whether to cancel the Visa, the Tribunal failed to take into account a matter that it was required to take into account, namely what, if anything, contributed to the failure of the appellant to appreciate his breach of condition 8112.

24. It is unnecessary for us to determine the validity of the above contention because, in our view, it is based on a misreading of the reasons for decision of the Tribunal.

25. The Tribunal noted that the appellant claimed to be unaware of the conditions to which the Visa was subject.  After adverting to that claim and other matters that ‘appear in part to support the view that the [appellant] did not deliberately flout his visa requirements’, the Tribunal went on to notice matters that tended to suggest otherwise.  The relevant passage from the Tribunal’s reasons for decision is reproduced in [15] above.

26. It seems to us that a reading of the reasons for decision of the Tribunal as a whole, and in particular the passage reproduced in [15] above, reveals that the Tribunal determined that the appellant was not to be believed on the question of whether he was aware that the Visa was subject to a condition that restricted his ability to work in Australia.  That is, that the Tribunal concluded that the appellant did not fail to appreciate his breach of condition 8112.  No occasion therefore arose for the Tribunal to take into account what, if anything, contributed to the failure of the appellant to appreciate his breach of condition 8112.

27. The contention that the Tribunal failed to take into account a matter which it was required to take into account is rejected.

    PARAGRAPH 116(1)(a) OF THE MIGRATION ACT 1958 (CTH)

28. Paragraph 116(1)(a) of the Act, in the circumstances of this matter, authorised the Minister, or her delegate, to cancel the Visa if satisfied that ‘any circumstances which permitted the grant of the visa no longer exist.’

29. The circumstance which permitted the grant of the Visa which is presently relevant is that specified by subitem 956.222 of Sch 2 of the Regulations, namely:

    ‘The applicant states an intention only to visit Australia temporarily for business purposes.’

30. It is accepted that, at the time of his application for the Visa, the appellant stated an intention only to visit Australia temporarily for business purposes.  To the extent that it may be relevant, we note that the Tribunal made no finding that the appellant’s statement was not true when it was made.

31. None of the criteria for the grant of an Electronic Travel Authority (Business Entrant – Long Validity) subclass 956 visa requires the visa applicant to have, and to maintain, an intention only to visit Australia temporarily for business purposes.

32. In our view the Federal Magistrate erred in concluding that it was open to the Tribunal to conclude that a circumstance which permitted the grant of the Visa no longer existed because the appellant has impermissibly changed his intention to visit Australia only temporarily.

33. The above conclusion renders it strictly unnecessary for us to determine whether the Tribunal acted beyond its jurisdiction in concluding that the appellant had changed his intention only to visit Australia temporarily for business purposes.  However, we consider it appropriate to record that, in our view, if the Tribunal’s approach to par 116(1)(a) be assumed to be correct, the Tribunal’s finding was a finding of fact made within its jurisdiction.

34. By a supplementary written submission, filed by leave after the hearing of this appeal, the Minister has accepted that the findings of fact made by the Tribunal did not justify the conclusion that there had been a relevant change of circumstances within the meaning of par 116(1)(a) of the Act. The following submissions are advanced by the Minister’s supplementary written submissions:

    ‘However, a consideration of the legislation discloses that the Tribunal’s finding fell squarely within s116(1)(g) of the Act and Regulation 2.43(1)(i) which together provide for a power to cancel:

    “In the case of the holder of … a sub‑class 956 (electronic travel authority (business entrant – long validity)) visa that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have any intention only to stay in, or visit Australia temporarily for business purposes.”

    Accordingly there is an express provision providing for cancellation on the facts found.

    The finding of the Tribunal in so far as it was based on s116(1)(a) may be supported on appeal by reference to s116(1)(g). In doing so, the Respondent is not asking the Court on appeal to make findings of fact. The finding of fact made by the Tribunal falls squarely within the abovementioned provisions. Although the Tribunal and the delegate incorrectly identified the relevant part of s116 which supports cancellation on the ground that the Appellant had ceased holding an intention to visit Australia temporarily, this should not have the consequence that reliance on that finding resulted in an error going to jurisdiction.’ (emphasis in supplementary written submissions)

1. We accept the submission that it would (theoretically) have been open to the delegate, and on review the Tribunal, to give consideration to cancelling the Visa in reliance on par 116(1)(g) of the Act and reg 2.43(1)(i) of the Regulations. However, it is clear that neither the delegate nor the Tribunal gave any consideration to whether ‘a prescribed ground for cancelling a visa applied to the holder’ (see par 116(1)(g)). It seems unlikely that the requirements of s 119 of the Act were complied with at any time in respect of a prescribed ground for cancelling the visa. It cannot be known whether the Tribunal would have exercised its discretion to cancel in reliance on par 116(1)(g) of the Act in the same way as it purported to exercise its discretion under par 116(1)(a). The appellant has not been given an opportunity to be heard on these questions.

2. We reject the submission that the Tribunal is to be understood to have unwittingly exercised jurisdiction to which it did not direct its attention and to which the attention of the appellant was not drawn. Nor do we accept that the outcome if it had, would inevitably have been the same as that which resulted from its erroneous consideration of par 116(1)(a) of the Act.

   CONCLUSION

3. The appellant accepted that unless he succeeded both with respect to condition 8112 and par 116(1)(a) his appeal must fail.  The appellant has not succeeded in establishing that the Visa was not subject to condition 8112.  The appeal therefore fails.

4. It will be ordered that the appeal be dismissed with costs.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Finn and Lander.

Associate:

Dated:             21 December 2005

Counsel for the Appellant:	A Collett
Solicitor for the Appellant:	Patel & Co
Counsel for the Respondent:	M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	28 November 2005
Date of Judgment:	21 December 2005