KVT24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 288
•28 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
KVT24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 288
File number: MLG 4238 of 2024 Judgment of: JUDGE CHAMPION Date of judgment: 28 February 2025 Catchwords: MIGRATION – Cancellation of visitor (tourist) visa – Where visa holder on arrival in Australia stated an intention to seek political asylum – Where visitor visa was cancelled before visa holder cleared immigration – Whether the delegate misunderstood the legal consequences of the cancellation decision in the statutory framework – Where there was a departmental policy as to visa cancellation powers – Whether the delegate failed to assess the visa holder’s compelling need to travel to Australia or the delegate’s application of the policy was legally unreasonable – Whether the delegate notified the visa holder in writing of the grounds for cancelling the visa under s. 119 – Whether a decision was made to cancel the visa in contravention of s. 124 because the visa holder did not have an opportunity to respond to the notice of an intention to cancel the visa – Held that the delegate did not assess whether the visa holder had a compelling need to travel to Australia or the delegate’s reasons as to whether the visa holder had a compelling need to travel to Australia were unreasonable in the legal sense – Error material – Cancellation decision quashed Legislation: Migration Act 1958 (Cth) ss. 48, 116, 119, 124, 198, 501CA
Migration Regulations 1994 (Cth) reg. 2.12, 2.43, 2.55, 1301, 1401, 1402, 1403, 1404; cl. 600.211
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43; [2004] FCA 1038
Fang Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044
Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438; [2019] FCA 45
Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112; [2021] HCA 9
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 282 FCR 285; [2020] FCAFC 215
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Taulahi v Minister for Immigration and Border Protection (2016) 344 ALR 1; [2016] FCAFC 177
Division: Division 2 General Federal Law Number of paragraphs: 103 Date of last submission/s: 27 February 2025 Date of hearing: 19 February 2025 Place: Melbourne Counsel for the Applicant: Ms K Bones Solicitor for the Applicant: Asylum Seeker Resource Centre Counsel for the Respondent: Mr J Barrington Solicitor for the Respondent: Australian Government Solicitor ORDERS
MLG 4238 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KVT24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
28 FEBRUARY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision made by a delegate of the Respondent on 3 December 2023 to cancel the visitor (subclass 600) visa of the Applicant.
2.A writ of prohibition issue prohibiting the Respondent and his delegates, servants and agents from acting upon, or giving effect to, the decision to cancel the visitor (subclass 600) visa of the Applicant.
3.There is liberty for both parties to apply on an urgent basis as to any necessary consequential order.
Costs
4.The Applicant file any submissions as to costs (not exceeding 5 pages) and such evidence on which he relies as to the amount of costs on or before 4 PM on 7 March 2025.
5.The Respondent file any submissions as to costs (not exceeding 5 pages) and such evidence on which he relies as to the amount of costs on or before 4 PM on 14 March 2025.
6.In the absence of a request for an oral hearing as to costs received from either party on or before 4 PM on 19 March 2025, the court will determine the issue of costs including their amount on the papers.
AND THE COURT NOTES THAT:
A.If either party requests an oral hearing as to costs before 4 PM on 19 March 2025, a hearing will be listed on the first available date.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
INTRODUCTION
The Applicant is a citizen of Russia. On 2 November 2024 he was granted a visitor visa, in the tourist stream, which permitted a 3 month stay from the date of his arrival in Australia. On 3 December 2024 he arrived at Melbourne Airport. On arrival, he told an Australian Border Force officer “I am here to claim political asylum.” Before the Applicant cleared immigration, a delegate of the Respondent cancelled his visitor visa under s. 116(1)(g) of the Migration Act 1958 (Cth).
The issue is whether — on one or more of the four grounds advanced — there was a jurisdictional error in the delegate’s cancellation decision as to the Applicant’s visitor visa.
SUMMARY
Ground 2 has been proved. The delegate’s reasons disclose that he either failed to consider (in the sense explained in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17, [24]) the visa holder’s compelling need to travel to Australia or, alternatively, his reasons lacked an evident and intelligible foundation and were therefore unreasonable in the legal sense. The error was material. Grounds 1, 3 and 4 have not been proved. Because Ground 2 has been proved I will quash the decision. My reasons follow.
AN EXPEDITED HEARING REQUIRING AN URGENT DECISION
There was an expedited hearing and a need for an urgent decision for two reasons.
First, as a consequence of his visa having been cancelled, the Applicant is in immigration detention, with the resulting restriction of his liberty.
Second, if there was a jurisdictional error, the Applicant submitted that the appropriate order was to quash the cancellation decision and order the Applicant’s release from immigration detention before the expiry of his visa on 3 March 2025. I was told that if he was not released from detention the relief he seeks would be “frustrated” because his eligibility for a Bridging A Visa pending the determination of his protection visa claims – a Bridging A Visa entitles him to live in the community and not be detained in immigration detention – depended on him holding a substantive visa [Migration Regulations 1994 (Cth), Sch. 1, Part 3, reg. 1301(3)(d)] and not being in being in immigration detention [Regulations, Sch. 1, Part 3, reg. 1301(3)(f)]. If his application were successful, without an order for his release from immigration detention before the expiry of his substantive visa, the Applicant submitted the consequence would be that he would remain in immigration detention pending determination of his protection visa claim.
For those reasons, I have made my decision and issued my reasons on an urgent basis today, 28 February 2025.
There are four grounds of judicial review. I will deal sequentially with the grounds.
A PRELIMINARY MATTER- THE STATUTORY FRAMEWORK AS TO THE S. 116 POWER TO CANCEL THE VISA
By way of preliminary observation as to the statutory context of the cancellation decision, the Applicant’s visa was cancelled under s.116(1)(g) of the Act. Section 116 is in Part 2, Division 3, Subdivision D of the Act. Subdivision D is titled “visas may be cancelled on certain grounds.” Section 116 is titled “Power to cancel”.
The Applicant admits that there was a ground to cancel the visa. A criterion for the grant of a visitor visa in the tourist stream is that “the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted”(cl 600.211 of Sch 2 to the Regulations). Under reg. 2.43(1)(j)(i) and under s. 116(1)(g) of the Act, a ground for cancelling a visitor visa is that the visa holder “has ceased to have, an intention only to visit, or remain in, Australia as a visitor temporarily …” The Applicant concedes that his own statement on arrival in immigration clearance that he had come to Australia to claim political asylum meant that there was a “ground” for the cancellation of his visitor visa under reg. 2.43(1)(j)(i).
The existence of a ground to cancel the visa did not mandate its cancellation. The delegate retained a discretion as to whether to cancel the visa. In Djokovicv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [29] the Full Court explained that the decision-making process under s. 116 has two elements. First, a decision-maker must be “satisfied” that grounds for cancellation exist. In this case, there is no dispute as to that issue. Second, once satisfied that the grounds for cancellation existed (the decision-maker had power to cancel the visa), the decision-maker had a residual discretion as to whether (or not) to cancel the visa. Grounds 1 and 2 impugn the delegate’s reasoning as to the exercise of his discretion.
GROUND 1: DID THE DELEGATE FAIL TO CONSIDER THE LEGAL CONSEQUENCES OF THE DECISION OR PROCEED ON A MISUNDERSTANDING OF THE LAW IN RESPECT OF THOSE CONSEQUENCES?
Ground 1 is that the delegate misunderstood the law or the legal consequences of his decision.
In exercising his discretion, the decision-maker was required to take account of the legal framework and the legal consequences of the decision (NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38, [9]-[10]). In Taulahi v Minister for Immigration and Border Protection (2016) 344 ALR 1; [2016] FCAFC 177 a subsequent Full Court (approving and applying NBMZ) said at [84] “that framework includes the direct and immediate statutorily prescribed consequences of the decision in contemplation”.
The Applicant submitted that the delegate – in considering reasons relevant to his discretion as to whether to cancel the visa – referred to the fact that five identified legal consequences “may” follow when the legal consequences were “direct and immediate statutorily prescribed consequences of the decision in contemplation” (Taulahi, [84]). That is, the identified consequences had to (must) follow rather than “may” follow from the cancellation decision. The Applicant submitted that these legal consequences were not “matters of discretion, nor otherwise open to doubt” but were “immediate statutorily prescribed consequences” which attached to the cancellation decision as set out in Taulahi. The Applicant submitted that because the delegate said the legal consequences “may” follow - when in fact they “must” follow - the reasons disclose that he misunderstood the statutory context in which he made the decision.
The structure of the departmental template provided to delegates considering visa cancellation is that the delegate is directed by the template to consider “other relevant reasons including mandatory legal consequences” (item 10) for not cancelling the visa in the course of the exercise of a discretion as to whether to cancel a visa. The fact that the template is structured in this way draws on the Department’s policy “General visa cancellation powers (s 109, s 116, s 128, 134B and 140)” (Policy). I will return to the content of the Policy in Ground 2.
At Ground 1, the Applicant’s alleged error focusses on the following part of the delegate’s decision (which including the template heading) is as follows:
10 Other relevant reasons (including mandatory legal consequences)
I have considered the legal consequences of a decision to cancel the visa holder's visa and note that if the visa is cancelled he may be:
•detained in immigration detention.
•become an unlawful non-citizen.
•be removed from Australia.
•be subject to bars which prevent the visa holder from applying for certain visas while in Australia.
•be excluded from being granted various types of visas for a period of time in the future.
In view of the above, I give this consideration some weight against cancellation.
[Emphasis added]
Even though each of the five legal consequences was a mandatory legal consequence which attached to the cancellation decision, not all may happen
The identified five legal consequences were statutorily prescribed as attaching to the cancellation decision. Nonetheless, they would not invariably factually arise in the sense that they were not inevitabilities or certainties and were subject to qualifications within the structure of the Migration Act 1958.
The third legal consequence the delegate identified that the Applicant “may be… removed from Australia” was a statutorily prescribed consequence mandated by s. 198 of the Acct. His removal was subject to a valid application for a protection visa. Removal, therefore, may not happen and was not inevitable. There was no error in the delegate using the word “may” to describe the prospective legal consequence of removal from Australia.
The fourth legal consequence the delegate identified was that the Applicant “may be subject to bars which prevent the visa holder from applying for certain visas while in Australia.” It was not beyond reasonable conception that the Minister may lift the bar under s. 48A and therefore the delegate’s use of the word “may” to describe that legal consequence was not an error.
The fifth legal consequence was that the Applicant may be “excluded from being granted various types of visas for a period of time in the future.” The Applicant correctly noted that the Applicant “would necessarily be affected by risk factor in PIC4013(2)(a) and so would be subject to a three-year exclusion in relation to the grant of future visas”. PIC4013(2)(a) is itself subject to an exception of “compelling circumstances” under PIC4013(1)(b). Again, the delegate’s use of the word “may” was not in error as to the prospective legal consequence.
The delegate’s identification of mandatory legal consequences was an accurate identification of the legal framework in which he was making its decision. The delegate’s use of the word “may” does not disclose a misunderstanding of the mandatory statutory consequences that attached to a decision to cancel the visa, given contingencies, qualifications or conditions within the statutory and regulatory framework.
Reasons not to be read with a fine tooth comb
The second point is that structure of the reasons discloses that the delegate correctly understood the legal framework in which he made the decision. The delegate correctly identified five mandatory legal consequences that may follow as a statutory imperative from a cancellation decision. A commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the delegate was saying (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2). The reasons ought not to be combed “with a finely attuned antenna for error” (Fang Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044, [14]–[15]).
The delegate’s use of the word “may” should be read in its context. It appears under the heading “mandatory legal consequences.” As the template is structured, at this point the delegate was considering reasons why the visa should not be cancelled. Having identified the legal consequences, each of which was a detrimental consequence to the visa holder which would attach to a cancellation decision, the delegate reasonably gives these legal consequences “some weight against cancellation.” Read as a whole, my conclusion is that this part of the delegate’s reasons does not disclose that the delegate misunderstood the Act, its operation and the statutory context in which he made his decision.
Was there a failure to consider a legal consequence that the Applicant was unable to apply for a permanent protection visa if this visa was cancelled before he cleared immigration?
Under Ground 1, the Applicant said that the there was an additional specific statutory consequence — an inability to apply for a permanent protection visa and an ability only to meet the criteria for the application for a temporary protection visa — which was of sufficient significance that it required separate consideration. Because it was not expressly adverted to, the Applicant submitted I should infer that the delegate overlooked it or that the delegate misunderstood the relevant statutory framework.
The delegate had expressly identified as a legal consequence which would attach to a cancellation decision that the Applicant may be “subject to bars which prevent the visa holder from applying for certain visas while in Australia.”
The statutory framework operates in a particular way when a visa is cancelled in immigration clearance. Because the cancellation decision was made in immigration clearance the Applicant could not apply for a permanent protection visa because he could not meet the application criteria for a permanent protection visa under reg. 1403(3)(d). Under reg. 1401(3)(d)(vi) a criterion for application for a permanent protection visa is that the applicant was “immigration cleared on the person’s last entry into Australia”. Because an Applicant was not immigration cleared when his visa was cancelled, he could only apply for a temporary protection visa under the criterion set out in reg. 1404(3)(d).
That is, the Applicant argued that cancellation of his visitor visa in immigration clearance carried an additional mandatory statutory consequence detrimental to him – not only he may be subject to bars which prevented him from applying for certain visas but also a cancellation decision in immigration detention carried a separate and distinct statutory consequence that he could not meet a prescribed criterion for the application for a permanent protection visa not having been immigration cleared on his last entry to Australia.
The Applicant distinguished between the fact that there are provisions in the Act or the Regulations which constitute a “bar” to a visa application and provisions which set prescribed criteria for a visa application which an applicant may (or may not) satisfy (Interview page 44:L15–20). The Applicant noted that s. 48(1) — which provides that a non-citizen who is refused a visa or whose visa is cancelled may only thereafter apply for particular visas — operated as a “bar” on further visa applications. Section 48(1) does not impose a bar on a “protection visa” application [reg. 2.12(c)]. The issue as the Applicant framed it was not one of “bars” but there was a distinct issue that the Applicant could not meet the criteria of application for a permanent protection visa under reg. 1403(3)(d).
I do not accept that the delegate made an error. As the Respondent submitted, although the language of “bars” is routinely used to describe circumstances in which a visa holder whose visa application is refused or whose visa is cancelled is subject to restrictions as to future visa applications, the statute does not strictly deploy the language of “bars.” Section 48(1) only provides that a non-citizen who is refused a visa or has his or her visa cancelled may only apply for particular prescribed visas (other visas being in practical effect “barred” because they are not permitted visas for which an applicant is permitted to apply).
The delegate recognised that in the relevant legal framework a consequence that would attach to a cancellation decision would be restrictions on the Applicant’s capacity to apply for visas or to be granted visas in the future. The fact that the delegate used the word “bar” in its ordinary meaning did not disclose that the decision-maker failed to consider, or misunderstood, that the Applicant would only be able to apply for a temporary protection visa in the future.
I accept the Respondent’s submission that the delegate’s reasons expose that he considered (and understood) the fact that a cancellation decision would have statutory consequences for future visa applications and/or grants of visas. The reference to the Applicant being “subject to bars” was expressed at a sufficient level of generality that the specific legal consequence of an inability to apply for a permanent protection visa – because the Applicant had not cleared immigration - was within its general ambit.
What is my conclusion as to Ground 1?
Ground 1 has not been made out.
GROUND 2: DID THE DELEGATE MAKE ERRORS IN CONSIDERING POLICY FACTORS?
The Policy
As noted, the Department maintains a policy “general visa cancellation powers (s 109, s 116, s 128, 134B and 140) (the Policy). Also, as I have noted, it is apparent that the Department’s pro forma Form 1111, which provides a template for a delegate making a cancellation decision is drafted with reference to the Policy. The pro forma is titled Notice of Intention to Consider Cancellation (NOICC) (CB72–89). Part A is to be completed so as to identify the ground for cancelling the visa. Part B provides for the delegate to consider reasons as to why the visa should not be cancelled even where a ground for cancellation exists (the discretion). Part C contains the notification of the decision to the visa holder.
Following the pro forma, the delegate set out that he was satisfied that there were grounds for cancellation of the visa under s. 116(1)(g) because of reg. 2.43(j)(i). As I have noted, the Applicant does not challenge that there were grounds for the cancellation of his visa. Although I will need to return to the issue in greater detail in Ground 3, the Applicant signed an acknowledgement at the end of Part A of the NOICC that he had received the NOICC.
Ground 2 is concerned with Part B that sets out the decision-maker’s reasons as to why even though a ground for cancellation exists, the visa should not be cancelled (the discretionary element of the decision).
The delegate’s ultimate decision to cancel – having considered matters relevant to the discretion - is set out at item 11 of the standard form at the end of Part B where he “ticked a box” which recorded:
Decision
After weighing up all of the information available to me, I am satisfied that the grounds for cancelling the visa outweigh the reasons for not cancelling. I have therefore decided to cancel the visa. ☑
In the pro forma, items 9–10 in Part B direct the delegate to consider matters as to why the visa should not be cancelled. The matters the delegate is directed to consider are drawn from the Policy.
Ground 2
Ground 2 is that in the exercise of the discretion under s. 116(1) the delegate failed to consider relevant facts and materials, failed to respond to a substantial clearly articulated argument or exercised a discretion in a way which was unreasonable in the legal sense. Under Ground 2 the Applicant submits that the delegate seriously misapplied the Policy.
Matters that should be considered under the Policy
The Policy relevantly provided as follows:
Matters that should be considered
It is policy that delegates take into account the following ten matters, if relevant, when deciding whether to cancel a visa; they should consider each of these nine matters [sic], even if not specifically raised by the visa holder. The matters that should be considered evolved from a body of case law relevant to visa cancellations and are designed to afford fairness to a visa holder. The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting. Generally, matters must be weighed in favour of the visa holder, not against the visa holder:
•The purpose of the visa holder’s travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.
…
•The circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.
In the Policy excerpt set out above, I have extracted above only the two matters on which the Applicant focused in Ground 2 (from a longer list of nine or ten matters).
There was some common ground between the parties as to the significance of the Policy in any assessment as to whether there was a jurisdictional error.
First, a failure to comply with the Policy does not of itself give rise to jurisdictional error. The Policy is not in and of itself a binding document (El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43; [2004] FCA 1038, [45]).
Second, both parties accepted that the delegate had a discretion as to how he weighed the matters to be considered under the Policy. Although the Policy generally sets out matters that must be weighed in favour of the visa holder, how matters were weighed was a matter in the delegate’s discretion and, provided he exercised his discretion in a way which was not unreasonable in the legal sense he would not make a jurisdictional error only because he gave one or more matters in the policy weight towards cancelling the visa rather than weight against cancelling the visa. Some of the matters identified in the Policy were more amenable to being weighed against towards cancellation than others. For example, the extent of compliance with visa conditions is a matter which could “cut both ways.”
There was, however, force in the Applicant’s submission that most of the matters in the Policy, of their nature, could only logically weigh in favour of a visa holder against cancellation because they were matters in mitigation, or involving consideration of hardship or other adverse impacts on the individual.
Further, as the pro forma is structured at item 11 — which provides a series of “tick box” options for the decision-maker — a delegate is guided in the decision-making to weigh reasons for not cancelling identified in the Policy against the ground for cancelling, which ground a decision-maker is already satisfied exists before turning to the discretionary factors against cancellation. Depending on the weight accorded to different matters in the exercise of the discretion, the delegate may decide either to cancel or not to cancel the visa. The structure of the pro forma is to weigh the reasons against grounds rather than reasons against other reasons.
If a decision-maker purporting to apply the Policy misconstrues it that may be jurisdictional error
The issue of difference between the parties was whether the delegate in the application of the Policy either failed to consider a relevant matter or matters or reasoned in a way which was unreasonable in the legal sense.
The discretion under s. 116 must be exercised in a way which is reasonable (Djokovic).
In the particular context of the application of a non-binding departmental policy in Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438; [2019] FCA 452 Robertson J set out the relevant principle upon which the Applicant relied at [89] as follows:
It may be accepted that departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else.
Robertson J continued that such a departure may be an example of the unreasonable exercise of a power or discretion in the legal sense because there is an illogicality in the reasoning adopted or because the “factual result is perverse by the decision-maker’s own criteria” (Jabbour, [89]); approved in MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 282 FCR 285; [2020] FCAFC 215, [22]).
As noted, the Applicant focussed on two matters which the Policy set out the decision-maker should consider: (1) the purpose of the visa holder’s travel to and stay in Australia and that the delegate should assess whether the visa holder had a compelling need to travel to Australia; and (2) the circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.
(1) Did the delegate consider whether the visa holder had a compelling need to travel to Australia? Alternatively, was there an evident and intelligible foundation for the conclusion that this matter was to be given “significant weight towards cancellation”?
In the interview in immigration clearance, the Applicant gave an account of a compelling need to travel to Australia.
The Applicant said that his persecution in Russia started in late October 2024 (he arrived in Australia on 3 December 2024) and there was a threat to his life. The delegate asked: “what sort of threats you received?” (Interview P27:L27). The Applicant said that he had a political site or blog. He said that he had been writing poems against the war and what was happening politically in Russia. He said that on 29 October 2024 he had been taken by police, beaten and tortured and that he had lodged a complaint: (Interview P27.22–28.5).
The Applicant said that the visitor visa was granted on 6 November 2024 and in the circumstances of what had happened to him in Russia a short time before, he decided to use it: (Interview P27: L27).
The Applicant explained in the interview in immigration clearance that the purpose of his travel was (Interview P9:L7-15):
“to seek political asylum because I have experienced persecution in Russia. They wanted to put me in jail or make me to not exist”:
The delegate’s consideration of the visa holder’s travel to Australia and his assessment of whether the visa holder had a compelling need to travel to Australia is set out in the reasons as follows (CB81):
Purpose of travel to and stay in Australia (whether the visa holder has a compelling need to travel to or remain in Australia
The visa holder stated that due to the change in his circumstances his sole purpose for travel to Australia now is to seek political asylum as he will face persecution in Russia. Initially he intended to travel to Australia for tourism for only ten days.
I acknowledge that the visa holder may have travelled to Australia to seek political asylum. However, his tourist visa was granted for tourism.
It is evident that the visa holder has ceased to have, an intention only to visit Australia for tourism.
Therefore, I give this consideration significant weight towards cancellation.
[Emphasis added]
The delegate purported to apply the Policy. The Policy set out that generally - I repeat not necessarily - the matters to which it referred were to be weighed in favour of the visa holder. The delegate’s reasoning as to the Applicant’s compelling need to travel to Australia had the following elements: (1) he had intended to travel to Australia for tourism; (2) he “acknowledge[d]” that intention had ceased and he now travelled to seek political asylum; (3) his visa was granted for tourism; (4) he concluded that this consideration was to be given “significant weight towards cancellation”.
A failure to consider the Applicant’s compelling need to travel to Australia
I accept the Applicant’s submission that the delegate failed to consider “whether the visa holder has a compelling need to travel … in Australia.”
Although the delegate adverted to the compelling need to travel to Australia when he “acknowledged” the claim for political asylum, that was something less than – considering - bringing his mind to bear on whether the Applicant had a compelling need to travel to Australia (Cf Plaintiff M1, [24]). In Plaintiff M1, the court held at [24] that “the requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations”. In this case, the Applicant’s statement that he was seeking political asylum was tantamount to a statement that he had a highly compelling need to travel to Australia - the submission was clear and highly relevant.
I accept the Applicant’s Counsel description of the delegate’s reasoning as being restricted to a finding that “your purpose [for travel] doesn’t align with your visa, and so I’m holding [it] against you” (T116:L26-27).
The Policy, however, required more than a restatement of the existence of the ground to cancel the visa. The Policy with which the decision-maker was purporting to comply directed the decision-maker to “assess whether the visa holder had a compelling need to travel to or remain in Australia” and to weigh that compelling need against the grounds for cancellation.
In this case, to “assess” the compelling need, required a greater “degree of effort” by the decision maker to engage with the claim. The delegate failed to engage with the compelling reason the Applicant gave for his travel to Australia. He failed to bring his mind to bear on a relevant matter as he was required to do. If the delegate assessed the Applicant’s account was truthful, it is hard to see how this factor would not be given significant weight against cancellation. If the delegate could not make a finding one way or another as to the truthfulness of the Applicant’s claim of persecution, logically, he would either give the matter some weight against cancellation (lest it be true) or treat it as a neutral matter. Finally, if he disbelieved the truthfulness the Applicant’s account, he would presumably not give the matter any weight, when he weighed it against the ground he was satisfied existed for cancellation. Perhaps, if the delegate was positively satisfied that the account as to a compelling need to travel to Australia was false, he may weigh the giving of a false account towards cancellation. The reasons do not disclose what position the delegate took as to the Applicant’s account of a compelling need to travel to Australia. The error is that merely to acknowledge the political asylum claim and the compelling need to travel to Australia is not an assessment of, or engagement with, the Applicant’s stated compelling need to travel to Australia.
Alternatively, the delegate’s reasons lacked an evident and intelligible justification
Alternatively, if I am wrong, and the delegate did sufficiently engage with the matter as to whether the Applicant had a compelling need to travel to Australia, the delegate’s conclusion that “I give this consideration significant weight towards cancellation” lacked “an evident and intelligible justification” (Minister for Immigration and Citizenship v Li(2013) 249 CLR 332, [76]).
Counsel for the Respondent attempted to discern an evident and intelligible justification for the conclusion in his submission as follows (T86: L28: -L39):
[Counsel]:So, he brings his mind to bear on the argument that, “Well, I’m here for political asylum purpose,” but then says, “You travelled on a tourist visa, effectively, not for tourist purposes.” So, says, “However, his tourist visa was granted for tourism”, and so what the delegate, in my submission, is evidently getting at is saying that the applicant has come here under false pretences or without clean hands, that he has come here – travelled here to seek asylum, despite seeking and obtaining a visa that required that the applicant arrive and have a genuine intent to stay temporarily.
I do not accept the Respondent’s submission because it fills a gap and writes into the delegate’s decision matters the delegate did not express. The delegate does not set out in his reasons that the Applicant did not have “clean hands” or had come here on “false pretences.” The delegate’s reasons merely repeat that because the Applicant no longer intended to stay in Australia temporarily a ground for cancellation of the visitor visa existed.
The reasons do not disclose what (if anything) the delegate made of the Applicant’s statements about a compelling need to travel to Australia. As a result, the conclusion that the compelling need to travel to Australia be given “significant weight towards cancellation” lacks an evident and intelligible justification. It lacks its necessary premise.
(2) Was the delegate’s consideration of whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing unreasonable in the legal sense?
The delegate said as follows as to extenuating circumstances beyond the visa holder’s control:
Client circumstances in which the ground for cancellation arose (whether there were any extenuating circumstances beyond the visa holder's control that led to the grounds existing)
The visa holder's visitor visa was granted as he intended to travel to Australia for tourism. The visa holder stated that he was arrested and tortured by police in Russia, after he applied for his visa application, and is facing threats of persecution.
He stated that due to this change to his circumstances, he travelled to Australia to seek political asylum.
The visa holder may have extenuating circumstances beyond his control that have given rise to the grounds for cancellation of his visa.
Therefore, I give this factor some weight against cancellation
The delegate’s statement that the Applicant “may have extenuating circumstances beyond his control” appears to reflect a position that the delegate was unable – one way or another- to make a finding as to whether the visa holder’s claims about what happened to him in Russia were true.
If the delegate’s reasons are correctly understood in that way, it seems to me logical that – lest his claims were true – reasonable for the delegate to give these “extenuating circumstances” some weight against cancellation. The greater the level of confidence of the truth of the Applicant’s account, the greater the weight against cancellation a decision maker might logically give the extenuating circumstances.
The incongruity in the delegate’s conclusions as these two matters: his conclusion as to extenuating circumstances which he gave some weight against cancellation - and the delegate’s conclusion as to the Applicant’s compelling need to travel to Australia where the delegate gave the matter significant weight towards cancellation is striking. The Applicant’s claimed compelling need to travel to Australia and extenuating circumstances were (in this case) similar. I am unable to discern why – reasonably considered – “extenuating circumstances” weighed against cancellation and the Applicant’s compelling need to travel to Australia was given “significant” weight “towards cancellation.”
Unreasonableness may arise in respect of irrational findings or reasoning along the way to a conclusion (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, [132]. In this case, the delegate’s reasons which I consider lacked an evident and intelligible justification as to the assessment of the Applicant’s compelling need to travel to Australia was a finding “along the way” to the ultimate decision as to whether reasons for not cancelling outweighed grounds for cancelling the visa. The illogicality error in the reasoning was material because it could have affected the final decision.
The standard of legal unreasonableness remains a “stringent” one (Li, [108]). It is no part of a court sitting on judicial review to engage in merits review.
Acknowledging the stringent standard of legal unreasonableness and the limited role of a court supervising an administrative decision, as to Ground 2, there was jurisdictional error because the delegate – having purported to apply the Policy - did not bring his mind to bear on the Applicant’s stated compelling need to travel to Australia: to acknowledge it was an insufficient engagement. Alternatively, the delegate’s conclusion that the Applicant’s compelling need to travel to Australia was to be given “significant weight towards cancellation” lacked an evident or intelligible justification.
Ground 2 has been made out.
GROUND 3: DID THE DELEGATE FAIL TO COMPLY WITH S. 119 OF THE ACT ?
Ground 3 is that the delegate made a jurisdictional error because he did not comply with s. 119 of the Act.
I have already referred to The Notice of Intention to Consider Cancellation (NOICC) which was an important document in the proceeding before me and which was divided into 3 Parts: Parts A, B and C.
Section 119(1) of the Act provides that “the Minister must, in writing” notify the visa holder of the proposed cancellation of a visa and invite their response (emphasis added). Section 119(2) provides that the notification “must be given in the prescribed way”. Relevantly, reg. 2.55(3)(a) provides one prescribed way for notification under s. 119(1) is “by handing it to the person personally”.
Video excerpts of an interview between the Applicant and the delegate in immigration clearance were in evidence (Ex.
A4). The whole interview lasted more than half an hour and there were breaks. Relevantly, the video recorded that at about 9.56 am the Applicant appended his signature to a page of the NOICC - his signature appears on the final page of Part A. Part A set out that there were grounds for cancelling the visa and the applicant’s signature “acknowledged this notice has been received.” There was then a break in the interview. The interview recommenced at 10.12 am when the delegate asked the Applicant whether there were reasons that the visa ought not to be cancelled relevant to the delegate’s residual discretion to cancel the visa.
Relevantly to Ground 3, the issue is whether the Applicant was given a copy of the NOICC in compliance with s. 119(1).
The video excerpts (Ex 4) disclosed that when the interview commenced the Applicant was not handed a paper copy of the NOICC. The NOICC’s contents were read aloud and interpreted to him which took some time. At about 9:54 AM, the delegate presented the Applicant with either a page or the pages of the NOICC. The Applicant signed the NOICC and the delegate then took the page or pages of the NOICC back from the Applicant. The NOICC document then rested on the table between the delegate and the Applicant for a short time. The delegate then left the room carrying the signed NOICC and other documents.
An oral interpretation does not meet the requirements of s.119(1). The NOICC must be given to the visa holder “in writing.”
The Applicant submitted that “the presenting of a page to the applicant to sign only to immediately be taken back [cannot] conceivably satisfy the requirement that the notice be given by handing it to the person personally: (T59: L17-21).
The Respondent referred me to the decision of Minister for Immigration and Border Protection v EFX17(2021) 271 CLR 112; [2021] HCA 9 which concerned the common ordinary meanings of the verbs “give” and “invite” in s. 501CA(3) of the Act. As to “give” the common meaning was “to deliver or hand over” (at [23]). The Court said at [23]:
The verbs “give” and “invite” connote only the performance of an act rather than the consequences of that performance such as the recipient’s capacity to comprehend the content of the English notice given or the English invitation made.
(Emphasis added)
Further, in EFX17 at [29]–[30] the Court declined to find that s. 501CA(3) supported an implication in the statute that the recipient must understand the contents of the notice given.
The only other evidence relevant to this issue is to be drawn from the interview transcript: (T24:L30–31):
INTERVIEWER: There are mandatory legal consequences to a cancellation decision. So, I have signed this notice now, time now is 9:53 hours. Get you to sign here, [name of Applicant omitted] , which means I have read you the notice.
The Applicant has not proved whether he was handed a single page of the NOICC which he then signed or several pages which together comprised the entire NOICC (CB72–CB75). The Applicant’s evidence was that he could not remember either way (Ex A4, [10]):
There was a long statement that was then read out to me. I was told I needed to listen to it. the articles of the Act meant, but I understood that they were referring to legislation as the reason they could cancel my visa. It was presented verbally and I was surprised by the way it was presented to me. I signed it but I did not understand what I was signing. I am unsure whether or not the officer also handed me the document that he read out.
[Emphasis added]
I find that the delegate then took back the single page or the several pages of the NOICC the Applicant had signed and it then rested on a table between him and the Applicant for a short period of time. The delegate then bundled up the documents and left the interview room.
It remains for the Applicant to prove his case. The Applicant has not proved that s. 119 was not complied with. The Applicant has not proved whether he was handed one page or the entire NOICC. The Applicant has not proved that a notice was not handed to him personally under reg. 2.55(3)(a). The handing of a notice to a person personally connotes the performance of an act rather than its consequences (EFX17, above). The Applicant has not proved that the act was not performed. The act crystallised the moment the Applicant was handed personally the NOICC. Even if the notice was taken back, s. 119(1) had by that point in time already been complied with. There is no implication in the statute that the Applicant has an opportunity to comprehend the notice (EFX17, above).
Ground 3 has not been made out.
GROUND 4: DID THE DELEGATE’S CONDUCT OF THE REVIEW DENY HIM PROCEDURAL FAIRNESS?
Ground 4 is that there was a jurisdictional error because the cancellation decision was made in breach of the statutory condition in s. 124(1) of the Act.
The essential premise of Ground 4 is that the power to cancel was not enlivened until the visa holder had given their completed response to the NOICC (T67: L34-35). A response required the anterior provision of a real and meaningful opportunity to respond. The Applicant submitted that he was denied an opportunity to respond because he was “misled” as to the issues or “discouraged” from presenting relevant evidence.
In support of Ground 4, the Applicant relied on the following extract from the interview transcript (P28 of 30):
Delegate: Okay. Anything else you want to say, sir?
Applicant: [Interpreted] Do you want to continue telling you what happened?
Delegate:The protection claims will be assessed after. At this moment I'm talking about your 600 visa - your tourist visa.
Applicant:I understand.
Delegate:Okay. Anything else regarding this one you want to say?
Applicant:[Interpreted] When I was applying for the tourist visa, my plans were to come to visit Australia between the 10th and 20 December. Because of what happened, the persecution happening, I had to come earlier.
Delegate:Okay. Anything else you want to say?
Applicant:[Interpreted] No.
[Applicant’s emphasis]
The Applicant submitted that although his account of what had happened to him in Russia was relevant to a protection visa claim, it was also relevant to whether his visitor visa ought to be cancelled and the delegate’s intervention that his “protection claims will be assessed after” discouraged or misled him to believe that his evidence about what had happened to him in Russia was not relevant to the cancellation decision because its relevance was confined to a protection claim. It was argued that he was therefore denied a real and meaningful opportunity to respond to the NOICC and the power to cancel the visa was not enlivened.
At a factual level, I do not accept that the Applicant has proved that the delegate either “misled” or “discouraged” the Applicant from saying anything further and therefore I do not accept that the Applicant was denied a real and meaningful opportunity to respond to the NOICC.
The delegate was accurate to say that the visitor (tourist) visa was at issue. I accept that issues concerning a risk of persecution in Russia were relevant both to the discretion to cancel the visitor visa and to subsequent protection claims. Nothing the delegate said shut down, misled or discouraged the Applicant from saying what he wished to say about what had happened to him in Russia which was relevant to the decision to cancel the visitor visa.
The interview-transcript above expressly discloses that the delegate asked the applicant if there was “anything else” he wished to say. The Applicant expressly answered “no”: there was nothing more he wished to say.
As a result, at that point in the interview, the cancellation power under s. 124(1) had been enlivened because the Applicant as the visa holder had given his completed response.
Ground 4 has not been made out.
ORDERS
Because Ground 2 has been made out, I will order that a writ of certiorari issue quashing the decision. I will order that a writ of prohibition issue prohibiting the Respondent from acting on, or giving effect to, the decision to cancel the visa.
The consequence is that because the Applicant holds a visitor visa, he is not liable to detention and is entitled to be released.
The parties were in dispute as to whether I ought to make a consequential order ordering the Applicant’s release forthwith from immigration detention. The Minister submitted that such an order is “wholly unnecessary” because “in short, quashing the decision will result in the applicant’s detention ceasing” subject to the court order being made before 3 March 2025. For present purposes, I am prepared to proceed on the basis of that submission that the Applicant’s detention will cease before 3 March 2025 as a necessary consequence of my other orders without the need for me to make a further express order for the Respondent forthwith to release the Applicant from immigration detention.
There is, however, plainly a time sensitivity as to this issue. I am concerned that any administrative delay in releasing the Applicant ought not to affect his substantive rights. For that reason, I will grant liberty to either party to make an urgent (oral) application should the Applicant not be forthwith released from detention.
COSTS
The Applicant wished to be heard as to costs. I will direct that the Applicant file any submissions (not exceeding 5 pages) as to costs on or before 7 March 2025. If the Applicant seeks costs other than scale costs, he ought to provide material as to the amount of costs. The Respondent ought to file costs submissions in response on or before 14 March 2025. If either party seeks an oral hearing as to costs, they should notify my Chambers on or before 19 March 2025 and the hearing will be listed on the first available date. In the absence of a request for an oral hearing, I will determine costs on the papers. The parties should note that it is my preference to set the amount of the costs either by reference to scale or otherwise in a decision on costs, rather than to have a further assessment exercise, with the extra expense that will entail. The parties should frame their material as to costs accordingly.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 28 February 2025
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