Le v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 708
•4 JUNE 2004
FEDERAL COURT OF AUSTRALIA
Le v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 708MIGRATION – application for review of decision to cancel spouse visa – evidence that decision maker had requisite state of satisfaction to cancel visa – decision maker not required to have regard to Migration Regulations 1994 (Cth) reg 1.15A(3) – no jurisdictional error – application dismissed
Migration Act 1958 (Cth) ss 116,128
Migration Regulations 1994 (Cth) reg 1.15A(3)Briginshaw v Briginshaw (1938) 60 CLR 336, cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 291, cited
THUY HANG LE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
V411 OF 2004
MARSHALL J
4 JUNE 2004
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 411 OF 2004
BETWEEN:
THUY HANG LE
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
MARSHALL J
DATE OF ORDER:
4 JUNE 2004
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The application be dismissed
The applicant pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 411 OF 2004
BETWEEN:
THUY HANG LE
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
MARSHALL J
DATE:
4 JUNE 2004
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant, Ms Thuy Hang Le, is currently being held at the Maribyrnong Detention Centre in Melbourne, together with her two children. She is in her current predicament as a consequence of a decision by a delegate of the respondent Minister to cancel her spouse visa. In saying that I mean no discourtesy to the delegate, who was only doing her job. The delegate attempted to ensure that Ms Le did not depart from Vietnam without being told of her cancellation of her visa. An alert was registered on the computer system of airlines operating out of Vietnam, yet Ms Le and her children were able to leave Vietnam and travel to Australia.
The cancellation of visa occurred on 29 March 2004. The circumstances that led to that event are set out below. The issue for determination in the proceeding brought by Ms Le under s 39B of the Judiciary Act 1903 (Cth), amongst other legislative provisions, is whether the delegate’s cancellation decision was affected by jurisdictional error.
Factual background
Ms Le is a citizen of Vietnam. She is married to an Australian citizen, Mr Manh Tuan Nguyen (“Manh”). In January 2001, Manh sponsored Ms Le for the grant of a spouse visa. Following a review application in the Migration Review Tribunal, the Minister granted Ms Le a spouse visa on 10 February 2004.
On 25 March 2004 the Minister’s Department (‘the Department”) received information from Ms Mai Tuyet Nguyen (“Mai”) which caused it to arrange for departmental officers to conduct a house visit at Manh’s premises. Mai informed the Department that she had been living with Manh for two years, that she was seven months pregnant and that Manh was the father of her child. Mai gave information to the Department, through its officers, that Ms Le and Manh did not have a genuine spousal relationship.
On 26 March 2004, Mr Macleod and Ms Bannan, from the Department, visited Manh’s residence at Maidstone. Later that day Mr Macleod prepared an email report about the visit and sent it to the Australian Consulate General in Ho Chi Minh City. Mr Macleod prepared the report on the understanding that it would be referred to officers of the Department stationed in Ho Chi Minh City and would inform their consideration of whether a decision should be made to cancel Ms Le’s spouse visa or that the matter be the subject of further investigation.
The email, amongst other things, referred to Mai’s contact with the Department and her information that Manh only sponsored Ms Le so that his children could come to Australia and that Manh intended to continue his relationship with Mai. It noted that Mai had suggested a house visit to confirm her relationship with Manh. The email referred to Mai being “obviously pregnant” and noted that Manh said that Mai was only a border and would be moving out when Ms Le and the children arrived from Vietnam. The email referred to Mr Macleod’s and Ms Bannan’s observations about sleeping arrangements at the house. It went on to state that, in the officers’ opinion, the second bedroom was not being used and Manh and Mai shared the main bedroom. The email also referred to Manh being uncooperative and evasive during the house visit.
Later on 26 March 2004, the delegate in Vietnam, Ms Davies, sent an email to the Entry Operations Centre, advising that there may be grounds for the cancellation of Ms Le’s spouse visa. The email said that Ms Le (who at that stage was still in Vietnam) would be contacted on Monday 29 March 2004 “to give her an opportunity to comment.” It also said that “a decision re cancellation will be made on Monday.”
On Monday 29 March 2004, Ms Davies telephoned Mr Macleod at 2.20 pm Melbourne time and told him that she was considering cancelling Ms Le’s spouse visa. Ms Davies also informed Mr Macleod that she had asked a locally engaged Vietnamese staff member of the Consulate to telephone Ms Le. Three such calls were made in the late morning of 29 March 2004, Ho Chi Minh City time (3 hours behind Melbourne time). However, Ms Le was not able to be contacted.
At about 12 noon Ho Chi Minh City time, Ms Davies emailed Mr Macleod, advising that she had asked the Entry Operations Centre to list the spouse visa as cancelled “and [to] ensure that Ms Le does not board a flight for [Australia].” The email also advised of unsuccessful attempts to contact Ms Le.
On Monday 29 March 2004 at 5.30 pm Ho Chi Minh City time, Ms Le and her two children departed Vietnam on Vietnam Airlines flight VN 781. The airline allowed Ms Le to board despite the “not OK to board” entry on the Document Alert List system, a computer system accessible by all international airlines. Ms Le departed Vietnam some five hours after Ms Davies decided to cancel her spouse visa.
When Ms Le arrived at Melbourne airport on the morning of 30 March 2004, officers of the Department told her of the cancellation decision. She was afforded an opportunity of returning to Vietnam and having 28 days to say why the decision should be revoked or staying in Australia and being given 15 minutes to respond. Ms Le chose the latter option. After speaking to Ms Le, a delegate of the Minister made the decision not to revoke the cancellation decision (“the non-revocation decision”). On the afternoon of 30 March 2004 Ms Le and her children were taken to the detention centre and remain there.
In her application for judicial review, Ms Le has challenged the cancellation decision and the non-revocation decision. However, before the Court and in written contentions prepared by counsel for the applicant, the non-revocation decision is not the subject of any independent challenge. Its fate is therefore tied to that of the decision of Ms Davies. Counsel for Ms Le, Mr Krohn, conceded that the non-revocation decision would only be impugned if the cancellation decision did not relevantly withstand challenge.
The legislative context
Section 128 of the Migration Act 1958 (Cth) (“the Act”) provides:
“If:
(a)the Minister is satisfied that:
(i) there is a ground for cancelling a visa under section 116; and
(ii) it is appropriate to cancel in accordance with this Subdivision; and
(b) the non-citizen is outside Australia;
the Minister may, without notice to the holder of the visa, cancel the visa.”
Section 116 relevantly provides that the Minister may cancel a visa if satisfied that any circumstances which permitted the grant of the visa no longer exist.
Section 129 requires the Minister to give the visa holder a notice with the following characteristics:
· Stating the ground on which it is cancelled; and
· Giving particulars of that ground; and
·Inviting the visa holder to show, within “a prescribed time” that the ground does not exist or that there is a reason why the visa should not have been cancelled; and
·Stating that if it is shown within the specified time that the ground does not exist the cancellation will be revoked; and
·Stating that if it is shown that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.
Under s 131(1) of the Act, after considering any response to a notice under s 129, the Minister is not satisfied that there was a ground for the cancellation or is satisfied that there is another reason why the cancellation should be revoked, the Minister is to revoke the cancellation. However under s 131(2):
“The Minister is not to revoke the cancellation of a visa if there exist prescribed circumstances in which the visa must be cancelled.”
Item 309.211 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) provides, so far as is material:
“The applicant meets the requirements of this subclause if the applicant is the spouse of:
(a)an Australian citizen …”
Regulation 1.03 states that “spouse” has the meaning set out in reg 1.15A. Relevantly to this matter, reg 1.15A(1A) provides:
“Persons are in a married relationship if:
(a)they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(b)the Minister is satisfied that:
(i)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii)the relationship between them is genuine and continuing; and
(iii)they:
(A) live together; or
(B) do not live separately and apart on a permanent basis.”
The cancellation decision
Ms Davies prepared a decision which complied with the requirements of s 129. The decision record stated that the relevant ground for cancellation was s 116(1)(a), that is, the circumstances which permitted the grant of the spouse visa no longer exist.
Under the heading, “Evidence of grounds for cancellation”, Ms Davies wrote that:
“…As of 29 March 2004, the visa holder had not entered Australia. Evidence before the Department indicates that [Manh] is in a spousal relationship with another person in Australia and as such the relationship between Ms Le and [Manh] is not mutually exclusive as required as part of the definition of a spousal relationship [Regulation 1.15A (1A)(b)(i)].”
In the cancellation decision, Ms Davies set out her reasons for cancellation as follows:
“On 26 March 2004, evidence before the Department suggested that [Manh] was in a spousal relationship with another person. On 26 March 2004 officers of the Department visited [Manh] at his residence in Australia. [Manh] and a female person were present at the house during that visit. The nature of the household and living circumstances supported a finding that [Manh] and the female were in a spousal relationship. The female made a claim to officers present that [Manh] was the father of her unborn child.
On 29 March 2004, checks of the Department’s movement database confirmed that the visa holder had not entered Australia on the current visa. As the visa was granted on the basis that the visa holder was the spouse (as defined) of [Manh], the circumstances which permitted the grant of the visa no longer exist.”
Ms Davies then considered why it was appropriate to cancel the spouse visa under s 128, without notice to Ms Le. Ms Davies wrote:
“The legal requirement for the grant of the visa is that the applicant is the spouse (as defined) of the Australian sponsor. The definition of spouse includes that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others. As of today, evidence before the Department suggests that the sponsor is in a spousal relationship with another person and as such the relationship with the visa holder Ms Le is not mutually exclusive.
The visa was granted on 1 February 2004 (sic), however the visa holder has not entered Australia. It is considered appropriate to cancel this visa without notice as the visa has been evidenced in the visa holder’s passport, and visa holder has indicated an intention to travel to Australia. However the visa holder has not entered Australia on this visa and the circumstances that permitted the grant of this visa no longer exist.”
Requisite state of satisfaction
Mr Krohn submitted that Ms Davies did not have the requisite state of satisfaction under s 128 to cancel the spouse visa. He contended that the words used by Ms Davies in her decision record showed an absence of an appropriate high degree of satisfaction, which was required having regard to the serious consequences flowing from the decision. Mr Krohn said that the use of words such as “suggests” and “indicates” was evidence of the use by Ms Davies of tentative language, revealing a state of mind falling short of the requisite degree of satisfaction required under the Act, which was akin to that referred to in Briginshaw v Briginshaw (1938) 60 CLR 336.
Mr Horan, counsel for the Minister, submitted that Ms Davies’ decision record should receive a beneficial construction and not be scrutinised in an overly critical manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 291.
Mr Horan also submitted that a decision record under s 128 is not a statement of reasons but a document provided in accordance with s 129. He further contended that the references to “suggests” and “indicates” occurred in the course of Ms Davies’ description of information on which her decision was ultimately based.
There is no substance in Mr Krohn’s contention on this point. First, Briginshaw is inapplicable to the instant circumstances because no adverse finding was made against Ms Le. There was no suggestion that Ms Le had acted fraudulently or provided false information. In any event, serious consequences of themselves cannot require a decision maker to be satisfied on a Briginshaw basis. Very few migration decisions do not have serious consequences.
Ms Davies, on a fair reading of her decision record was satisfied, unequivocally, of the grounds for cancellation of the spouse visa. So much is apparent from the covering letter to Ms Le, which accompanied the decision record. It commenced as follows:
“I wish to advise that your visa was cancelled on 29 March 2004 under section 128 of the Migration Act 1958 because a circumstance which permitted the grant of the visa no longer exists.”
The decision record also stated that:
“I consider that there are grounds for cancellation of this visa under s 128 of the Act, relying on the grounds at section 116(1)(a).”
The reference to the evidence “suggest(ing)” a spousal relationship between Manh and Mai and “indicat(ing)” the same does not show a tentative conclusion by Ms Davies. A fair reading of the decision record shows acceptance of that evidence, beyond doubt.
No confirmed information
Mr Krohn submitted that Ms Davies should have complied with a policy directive of the Minister contained in “Migration Services Instructions” (“the Instructions”) at [20.2.13]. The relevant part of the Instructions gives three examples of when it may be appropriate to cancel a visa, without notice, under s 128. The second example given is:
“a visa is granted overseas, the holder has not yet travelled, and the post receives confirmed information that important facts on the application were not correct…”
Mr Krohn contended that Ms Davies’ decision record does not say if she gave any consideration to confirming the information on which she acted.
Mr Horan submitted that the Instructions are not binding on delegates, but simply provide a list of examples where cancellation may be appropriate. He contended that there was no obligation to act on confirmed information but in any event Ms Davies had acted on information given by Minh which was confirmed by Mr Macleod.
I accept Mr Horan’s submissions. The submissions to the contrary are devoid of merit. The initial information emanating from Minh set in train a chain of events leading to the home visit where Mr Macleod and Ms Bannan received confirmation from Mai of some of the matters she raised in her initial telephone call to the Department. The confirmed information was passed on via email from Mr Macleod to Ms Davies. In any event the legislative scheme provided by Sub-div F of Div 3 of Part 2 of the Act does not contemplate that information leading to cancellation without notice under s 128 be confirmed after a full investigation. The non-revocation decision can accommodate a broader investigative process.
Regulation 1.15A(3)
Regulation 1.15A(3) requires the Minister “in forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for [various categories of visa] …” to have regard to particular matters which include “the financial aspects of the relationship.”
Mr Krohn’s submission on this point (which was not contained in his written contentions) was not clear but he seemed to contend that Ms Davies was unable to find that there was a spousal relationship between Minh and Mai without considering the financial aspects of that relationship. This submission is utterly devoid of merit. Regulation 1.15A(3) had nothing to do with what Ms Davies had to decide. It is relevant only to persons who apply for a visa who at that time claim to be in a spousal or de facto relationship. It does not bear on the question of whether a spousal relationship does not exist because one of the parties is in another spousal relationship with someone else.
Sufficiency of evidence
Mr Krohn submitted that there was not sufficient evidence before Ms Davies to allow her to be satisfied to the requisite degree that the relationship between Ms Le and Minh had come to an end. This submission is misplaced. The question was not whether that relationship had come to an end but whether Mr Minh was also in another relationship which meant that Ms Le was not his “spouse” as defined in Reg 1.15A(1A).
However, as Mr Horan submitted, there was some evidence before Ms Davies which was capable of supporting a finding that there was a lack of mutual commitment between Ms Le and Minh to the exclusion of all others.
Welfare of Ms Le and her children
Finally, Mr Krohn submitted that Ms Davies should have considered the possibility, before making her decision, that Ms Le had left Vietnam and may be placed in migration detention (along with her children) if she arrived in Australia with a cancelled visa.
This last submission of Mr Krohn is also devoid of merit. Ms Davies cancelled the spouse visa when Ms Le was still in Vietnam. Before doing so, she attempted to contact Ms Le. Ms Davies checked that Ms Le had not departed Vietnam and had not entered Australia before she cancelled the spouse visa. Ms Davies notified Vietnam Airlines (via the Document Alert List) that Ms Le was “not ok to bound”. In these circumstances it defies reality to suggest that Ms Davies should have considered the possibility that Ms Le and her children would be detained in Australia. In any event, even after arriving in Australia, it was open to Ms Le to return to Vietnam and prepare a response to the invitation to show why the cancellation decision should be revoked. As Mr Horan said, it was not a natural consequence of the cancellation decision that Ms Le or her children would be detained in Australia.
Comment
Ms Le’s challenge to the cancellation decision has failed. Consequently the challenge to the non-revocation decision also fails. However, evidence before the Court reveals that information supplied by Mai to the Department may be highly suspect. In that regard it is open to Ms Le to return to Vietnam with her children and make a further application from there at a later time for a new spouse visa.
Order
As the application is devoid of merit, in respect of each ground of alleged jurisdictional error, it follows that the application must be dismissed. Costs should follow the event.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate:
Dated: 4 June 2004
Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Clothier Anderson Counsel for the Respondent: Mr C Horan Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 and 27 May 2004 Date of Judgment: 4 June 2004
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