Kumar v Minister for Immigration and Citizenship
[2011] FCA 1332
•16 November 2011
FEDERAL COURT OF AUSTRALIA
Kumar v Minister for Immigration and Citizenship [2011] FCA 1332
Citation: Kumar v Minister for Immigration and Citizenship [2011] FCA 1332 Appeal from: Kumar v Minister for Immigration and Citizenship [2011] FMCA 660 Parties: KAMAL VENKATAIYA KUMAR v MINISTER FOR IMMIGRATION & CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number(s): NSD 1526 of 2011 Judge: YATES J Date of judgment: 16 November 2011 Catchwords: MIGRATION – cancellation of visa – incorrect answers given in visa application Legislation: Migration Act 1958 (Cth) ss 101, 107(1) Date of hearing: 16 November 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 35 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondents: Mr A Wood of Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1526 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: KAMAL VENKATAIYA KUMAR
AppellantAND: MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
YATES J
DATE OF ORDER:
16 NOVEMBER 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant is to pay the first respondent’s costs awarded as a lump sum in the amount of $2,620.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1526 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: KAMAL VENKATAIYA KUMAR
AppellantAND: MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
YATES J
DATE:
16 NOVEMBER 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
This is an appeal from a judgment of the Federal Magistrates Court of Australia given on 22 August 2011, which dismissed the appellant’s application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) made on 11 May 2011 and which the appellant was notified of on 12 May 2011.
The Tribunal had affirmed the decision of a delegate of the Minister for Immigration & Citizenship to cancel the appellant’s Subclass 457 (Business (Long Stay)) visa (the visa) under s 109(1) of the Migration Act 1958 (Cth) (the Act). The visa was cancelled because the delegate was satisfied that the appellant, when applying for the visa, had provided incorrect information to the Department of Immigration and Citizenship (the Department), contrary to the requirements of s 101 of the Act.
BACKGROUND
The appellant is a citizen of Fiji. He arrived in Australia on 7 October 2008 under the visa. The visa was due to remain in effect until 1 October 2012. His wife and son were secondary visa applicants.
When applying for the visa on 22 March 2007, the appellant provided incorrect information in response to a number of questions asked of him.
First, when asked whether, before the application, he had ever applied for an Australian visa, he answered “no”. In fact the appellant had applied for several Australian visas before 22 March 2007, including an application for a permanent visa on 24 May 2002.
Secondly, when asked whether he had ever held a bridging visa E, he answered “no”. In fact, prior to 22 March 2007, the appellant had been granted a bridging visa E on several occasions.
Thirdly, when asked whether he had ever had an Australian visa refused or cancelled, he answered “no”. In fact, on 18 June 2002 the appellant’s application for a permanent visa was refused.
Fourthly, when asked to give past employment details, the appellant provided an answer to the effect that he had been employed as a painter/decorator between 1 February 1994 and 22 March 2007 by a company located in Fiji. In fact, Departmental records showed that the appellant was in Australia between 12 April 2002 and 19 November 2006. The delegate concluded that the appellant could not have been employed in Fiji during that period and that, accordingly, the answer that the appellant had given was incorrect.
Fifthly, when asked whether he had any outstanding debts to the Australian Government or any public authority in Australia, the appellant answered “no”. In fact the appellant was indebted to the Commonwealth as a result of a period of immigration detention in 2005 and also for fees and costs relating to his unsuccessful application to review the decision refusing his application on 24 May 2002 for an Australian permanent visa.
I should add that information available to the Department showed that the appellant’s previous entry to Australia was under the surname Venkataiya, the name given as the appellant’s middle name when making application for the visa.
Section 101 of the Act provides that:
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.As a consequence of the provision of the incorrect information, the appellant was served with a notice under s 107(1) of the Act. Section 107(1) provides that:
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.
The appellant provided a response to the s 107(1) notice on 23 November 2010. He said that his application had been completed on his behalf and that he was not aware of all the answers given. He said that he had been employed with his sponsor and had complied with the conditions of the visa. He said that he had contributed to the community and that his son would be completing a TAFE course in 2011.
The appellant subsequently supplied a statutory declaration in which he claimed, amongst other things, that, after he had returned to Fiji in 2006, he had lost his passport and had reapplied for a new passport using his “nickname”. He claimed that his migration agent had completed all the forms. He said that he had done some charity work in Australia and that his son would be completing his studies in Australia in 2011. He said that he would repay the money owed to the Australian government.
The visa was cancelled on 8 December 2010. On 9 December 2010 the appellant applied for a review of the delegate’s decision. As I have recorded, the Tribunal affirmed the delegate’s decision on 11 May 2011. The Tribunal decided that the appellant had given incorrect answers in respect of his application for the visa, contrary to the requirements of s 101 of the Act. Further, having regard to all the circumstances, the Tribunal was satisfied that the visa should be cancelled under s 109 of the Act.
FEDERAL MAGISTRATES COURT
On 25 May 2011 the appellant applied to the Federal Magistrates Court seeking an order that the decision of the Tribunal be quashed and that a writ of mandamus be directed to the Tribunal requiring it to determine the appellant’s application according to law. The grounds of the application were stated as follows:
1.Tribunal failed to consider the material facts in exercising its discretion.
2.Tribunal failed to consider all relevant facts in coming to its decision.
By the time the matter had come to the Federal Magistrates Court it was common ground that the answers which the appellant had given in his application for the visa were incorrect. Although the appellant had advanced an innocent explanation for giving that information, both the delegate and the Tribunal had rejected that explanation, at least to the extent that the incorrect answers were given innocently.
In his reasons, the presiding Federal Magistrate set out the history of the matter, summarising the delegate’s decision and the Tribunal’s decision. His Honour said that he was unable to detect any error of law in the Tribunal’s understanding of the relevant statutory provisions and authorities. Indeed, none had been pointed out by the appellant.
His Honour noted that the Tribunal had made findings that the five instances of non-compliance under s 101 of the Act had been established. Significant, in this regard, was the fact that the appellant had admitted the non-compliance.
His Honour then turned to consider the discretionary considerations which the Tribunal took into account. His Honour noted that the Tribunal had found that, had the correct answers been provided in respect of the appellant’s application for the visa, the visa would not have been granted. His Honour noted that the Tribunal had reached a state of satisfaction that the incorrect answers were provided with an intent to mislead the Department, thereby signifying an intentional willingness to circumvent the requirements of the Act.
His Honour also noted that, when exercising its discretion, the Tribunal considered the following additional matters:
·The present circumstances of the appellant and his family, both in Australian and Fiji.
·The subsequent behaviour of the appellant in his dealings with the Department, noting that the appellant had not sought to correct the misinformation he had given, and that there had been a later further attempt to mislead the Department.
·The time that had elapsed since the non-compliance. In this connection the Tribunal reasoned that that factor was not of significant weight. The period of two years after entry under the visa had not been a long period of time in Australia.
·The appellant’s claims that he had contributed to Australia, and that he had addressed further matters arising under the Department’s policy guidelines.
His Honour also noted that the Tribunal considered the situation of the appellant’s wife and son. The Tribunal noted that, as the appellant’s wife had been granted a temporary visa with the appellant, her visa would be cancelled and she would be returned to Fiji with him. The Tribunal found that, in that event, she would not be separated from the appellant and that she had family support in Fiji. The Tribunal also noted that the appellant’s son’s visa would be cancelled as well. It found that, although this would disappoint him, and although his attendance at TAFE would be interrupted, he would be able to apply for a student visa in his own right. The Tribunal found that if the appellant’s son resumed his course of study in Australia, he would have the support of his married sister, who was resident in Australia under other arrangements. The Tribunal concluded that it did not consider the disruption to the son’s studies to be of such significance that the circumstances surrounding the grant of the visa to the appellant should be overlooked. In this connection the Tribunal found:
The [appellant] intentionally misled the Department this required a significant amount of effort. He did not correct the misinformation. He stated that he did not think he did anything bad and referred to it as a mistake. The Tribunal considers he has gone to considerable lengths to mislead the Department and has shown a disregard for Australia’s laws and regulations.
The presiding Federal Magistrate noted that the appellant’s grounds of review had not been supported by any meaningful particulars or, indeed, by anything said in oral submissions. In this regard his Honour said:
In his oral submissions today, Mr Kumar repeated to me what he had put to the Tribunal, that is, that he had invited the Tribunal to take a compassionate approach to the discretionary considerations, so as not to disturb the continued studies of his son.
However, it appears to me that the Tribunal did carefully consider that matter and was unpersuaded by the submission for the reasons it gave. I am unable to detect any error in the Tribunal’s consideration of that matter that would amount to jurisdictional error, and allow me to give any relief to Mr Kumar in his present application. The Court itself has no power to protract Mr Kumar’s stay in Australia, if it is unable to discern jurisdictional error affecting the Tribunal’s decision.
His Honour concluded that the Tribunal’s decision was unaffected by jurisdictional error and dismissed the application.
THE APPEAL
The appellant’s notice of appeal in this Court was filed on 8 September 2011.
The grounds of appeal are stated as follows:
1.…
2.Tribunal failed to consider the material of facts in exercising its discretion.
3.Tribunal failed to consider all relevant facts in coming to its decision.
It can be seen that the grounds of appeal simply reproduce the grounds of the application before the Federal Magistrates Court, which had been rejected. There is no further elaboration. In particular, there is no elaboration on why the decision of the Federal Magistrates Court was in error.
The appellant has appeared, unrepresented, today. He has been assisted by an interpreter. When asked to advance the submissions he wished to make in support of his appeal he responded by pointing to the following matters.
First, he said that he had made mistakes and had accepted that position.
Secondly, he said he needed a year to stay in Australia to enable his son to complete his studies.
Thirdly, he said that he had debts to pay and he wished to remain in Australia to pay those debts, although he also stated that he had been unemployed for the last year.
Fourthly, he referred to the fact that his daughter was a permanent resident in Australia and that he wished to have the opportunity to come back to Australia.
The abiding theme of his submissions this morning was that he needed more time to stay in Australia.
I have been assisted by the preparation of written submissions by the solicitors acting for the Minister. I have been informed that the pages recording the Minister’s substantive submissions have been translated for the appellant.
In my view the appellant has not identified error in the judgment from which his appeal to this Court is brought. The appeal must be dismissed with costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 22 November 2011
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