Lee v Minister for Immigration - [2005] FMCA 237

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v MINISTER FOR IMMIGRATION

[2005] FMCA 237

MIGRATION – Minister’s cancellation of business visa – consideration of hardship to family and best interests of children – obscure decision‑record – jurisdictional error not found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116(1), 116(1)(b), 118A, 119, 119(1)(b), 124, 127, 140, 140(1), 368, 474(1), 477(1A), 483A, 501, 501G(1)(e), Part 2 Division 3 Subdivision E, Part 8
Migration Regulations 1994 (Cth), reg.2.05(1), Sch.2 item 457.611(1), Sch.8 item 8107(a)(i)
Migration Series Instruction, MSI‑368: Visa Cancellation Under Sections 109, 116, 128 and 140(1), para.17.2, 17.2.1

Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v W157/00A (2002) 125 FCR 433
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
Samad v District Court of NSW (2002) 209 CLR 140
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511
WAEE v Minister for Immigration (2003) 75 ALD 630
Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133

Applicant:

BYUNG HYUN LEE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2518 of 2004

Judgment of:

Smith FM

Hearing date:

4 March 2005

Delivered at:

Sydney

Delivered on:

16 March 2005

REPRESENTATION

Counsel for the Applicant:

Mr N Dobbie

Solicitors for the Applicant:

Parish Patience Immigration

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the Respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2518 of 2004

BYUNG HYUN LEE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application under s.483A of the Migration Act 1958 (Cth), (“the Migration Act”) which seeks writs which would quash and prohibit the respondent from giving effect to a decision made by her delegate on 25 July 2003. The decision cancelled under s.116(1) of the Migration Act a Business (Long Stay) Class UC subclass 457 visa, which was granted to the applicant on 19 November 2001 and would have allowed him to reside in Australia until 19 November 2005. The applicant had enjoyed substantial periods of residence since December 1999 under previous visas.
The issue of the applicant’s visa also allowed secondary visas to be issued to his dependent wife and daughter, and perhaps also to a son born during its currency – although there is no evidence before me that one was ever issued to him. The visas issued to the wife and daughter were cancelled by operation of law under s.140(1) of the Migration Act upon the cancellation of the applicant’s visa, and they were notified of this at the same time that the applicant was notified. Although they are not parties to the present application, an assumption in the submissions before me was that if the s.116(1) decision were quashed then the dependents’ visas would also revive.
The Court’s jurisdiction under Section 483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In the present situation, the relevant jurisdiction of the Federal Court is its judicial review jurisdiction conferred by s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs, Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [15] and [76-7], and in subsequent cases, the limitations raised by ss.474(1) and 477(1A) prevent my giving the relief sought by the applicant unless I am satisfied that the delegate’s decision was vitiated by jurisdictional error.

The cancellation decision

The background to the cancellation of the applicant’s visa can be explained shortly. The visa was granted under sponsorship criteria, and was subject to a condition that the applicant “must not … cease to be employed by the employer in relation to which the visa was granted” (see Migration Regulations 1994 (Cth), reg.2.05(1), Sch.2
item 457.611(1), and Sch.8 item 8107(a)(i)). Cancellation of the visa under s.116(1) was empowered if the Minister was satisfied that “(b) its holder has not complied with a condition of the visa”. It is common ground that, even if the Minister were so satisfied in relation to the applicant’s visa, there was still a discretionary question to be addressed by the decision‑maker which was whether a cancellation was the preferable outcome in the circumstances.
By letter dated 29 October 2002, the applicant’s sponsoring employer notified the Department that the applicant had left its employment, and that it had “accordingly … retreated from all its undertakings as a standard business sponsor in relation to Mr Lee’s 457 visa”. The applicant was then served with notice under s.119 that there appeared to be ground for cancelling his visa. As required by s.119(1)(b), the notice invited him to show:
·why you think the ground(s) for cancellation does or does not exist; and
·why you think your visa should not be cancelled.
The applicant responded within the short time allowed, by way of a letter received on 19 February 2003. It is appropriate for me to reproduce its body in full, emphasising the passages which the applicant claims were not given proper consideration:
I wish to forward my response to your Notice of Intention to Consider Cancellation of my subclass 457 business visa on the grounds of an employer business sponsorship. I will address the matters you have outlined on p.2 of your letter of 4 February 2003.
My employment with G & EM Pty Ltd commenced in November 2001 and ceased on October 2002. It was during the period of several months prior to my resignation that I confronted marital difficulties. At this stage my wife was pregnant (with our second child) and left me and went to Korea, with also our first child, on the 8 August 2002. My domestic concerns were causing me alarm and concern. Being on my own in Australia and uncertain of my future I began to feel emotional and unsettled with my work situation. It was on this basis that I decided to leave my job and give attention to what I should do and regain some focus and perspective on my life. This critical period also coincided with the birth of my second son on the 7 October 2002. In the course of subsequent lengthy phone discussions (between Australia and Korea) with my wife she decided to return to me and come back to Australia on 29 January 2003. Although my family and I are presently altogether it was during my period of anxiety and solitary speculation that I left G & EM Pty Ltd. The uncertainty of my future compelled me to act hastily and as a result ‘the extent of (my) non-compliance with any conditions subject to which (my) visa was granted’ has been in question. It was primarily these ‘circumstances in which the grounds for cancellation arose’.
In view of my predicament I request that you allow me to remain in Australia with the condition that I find another sponsor. On the basis of my earlier business visa approval I believe that because of my past experience and training in personnel management I will be able to contribute in a significant way towards the Australian economy and society. Furthermore, my wife and young family are presently residing with me in Australia and feel settled. We have also made commitments to major purchases such as a motor vehicle, furniture, and other household appliance items. I feel that following the resumption of my marital life, and with my young family, any additional disruption from our present circumstances may cause unnecessary ‘hardship which may be caused to (me) and my family members if the visa is cancelled’.
My decision to accept the position offered by G & EM Pty Ltd in 2001 was a long‑term one with the ‘purpose of … (staying) in Australia’ and settling here, and raising my children in this country. I enjoy the Australian way of life and work and wish to permanently reside here. The return of my wife and children allows me to continue along this line.
As far as I’m concerned my relationship with the Department has been cordial and I appreciate your attention and sympathy on my plight. Please contact me at the address below if you should require additional information.
The original of this letter will be coming to you by mail.
Letters from the delegate dated 25 July 2003 were sent to the applicant, his wife and daughter, which notified them that their visas were cancelled. The cancellation of the applicant’s visa is the decision which is the subject of these proceedings.

The applicant’s contentions

Counsel for the applicant argued that the delegate made a jurisdictional error by failing to address “critical claims” advanced by the applicant as grounds why his visa should not be cancelled. These, collectively, concerned the impact on the welfare and “best interests” of his children and family if they were forced to leave Australia. In particular, he argued that the delegate’s decision record revealed that the delegate failed to consider the parts of his response which I have emphasised when reproducing it above.
The applicant’s counsel also argued that the delegate was obliged to consider, and failed to do so, a policy directive in a Migration Series Instruction entitled “MSI‑368: Visa Cancellation Under Sections 109, 116, 128 and 140(1)” (“MSI‑368”) which provided:
17.2Assuming the ground for cancellation is made out, primary considerations when considering whether or not to exercise the discretion to cancel a temporary visa under s.116 are:
…
·the degree of hardship which may be caused to the visa holder and any family members. NB: If there are children in Australia whose interests could be affected by cancellation of a visa, or who themselves would be affected by consequential cancellation, then decision‑makers have an obligation to treat as a primary consideration the effect of cancellation on any such children (Article 3 of the Convention on the Rights of the Child requires that the best interests of any relevant child – anyone under 18 years of age – in Australia (or within Australia’s jurisdiction), no matter what the child’s immigration status, be treated as a ‘primary consideration’). For further information about Australia’s international obligations to children and families, see Attachment 42.
In WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 at [60-1], the Full Court cites and accepts authority that a decision‑maker “may make a jurisdictional error if it … fails to take into account relevant considerations”. Their Honours said: “What will constitute … a relevant consideration will fall to be determined by reference to the legislation pursuant to which the decision is made, and, perhaps, the matters advanced by the parties”.
I did not understand counsel for the Minister to contend that I should not follow WACO. His contentions were that the “family welfare” considerations claimed not to have been considered by the delegate were not matters which the delegate was bound to address, and (more strongly) that I could not infer from the evidence that they had not been considered. He also contended that, even if jurisdictional error were made out, relief should be refused under the Court’s discretion to do so on the ground of delay by the applicant in commencing proceedings and his failure to avail himself of a brief opportunity for applying for merits review.
I do not accept the submission that the delegate was not bound to consider claims made by the applicant that cancellation of his visa would be harmful to his dependents and family relationships. He is correct in pointing out that s.116(1) confers the discretion to cancel in language (the use of the word “may”) which is not expressly confined as to the considerations which must or may be taken into account. In such a situation “the court will not find that the decision‑maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject‑matter, scope and purpose of the Act” (see Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40, and c.f. Gleeson CJ and McHugh J in Samad v District Court of NSW (2002) 209 CLR 140 at [32]).
In the present situation, the legislative context is the deprivation of a right to reside with dependents in Australia. Further, by the operation of s.140 of the Migration Act, the cancellation decision will automatically remove their rights as well as those of the principal visa holder. The Migration Act gives the visa holder (but not his dependents) the right to receive notice of a proposed cancellation and an opportunity to show “there is a reason why it should not be cancelled” (s.119(1)(b)). The Minister is prohibited from making a decision without allowing a response to be made (s.124).
I consider that there must be implied from this context a duty on the Minister, at least, to consider and carefully weigh any contentions made by the visa holder that cancellation will adversely impact upon the best interests of his dependants. The duty may be implied as a substantive element in the s.116(1) power (c.f. Allsop J in Minister for Immigration & Multicultural Affairs v W157/00A (2002) 125 FCR 433 at [103], [111-115]). Alternatively, it may be found to arise from obligations of procedural fairness which are implicit in the mandatory “show cause” procedure under Subdivision E of Part 2 Division 3 of the Migration Act (see ss.119-127, and c.f. Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at [24]). If this is a matter dealt with in those provisions, it is irrelevant that other “requirements of the natural justice hearing rule” are excluded by s.118A. Neither of these analyses would, however, require the delegate to give the best interests of dependents any particular weight or significance when weighing discretionary factors.
A separate duty on the delegate specifically to address the “best interests” of the applicant’s children in Australia and to deal with the effect of cancellation on them as “a primary consideration” may be less clearly found. I am inclined to think that s.118A excludes the rights of procedural fairness arising from the Convention on the Rights of the Child which were identified in Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 (see Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133 at [11-15], and Minister for Immigration v W157/00A (supra) at [100]). A clearer pathway, in my opinion, may be the implicit duty on the administrator exercising the s.116(1) power to address “and give such weight as it thinks proper” to the relevant policy instruction given in para.17.2.1 of MSI‑368 (supra) (see Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189 at 205-208).
For the above reasons, I consider that in the present case the delegate was, at least, bound to consider and weigh the effect of cancellation on the applicant’s family in the light of his response, and in particular his claim that “my wife and young family are presently residing with me in Australia and feel settled”. She was also bound to consider the administrative policy requiring the children’s best interests to be “a primary consideration”, and to apply it unless she reached a conclusion that the policy was inappropriate to the particular circumstances.
The next issue for me, therefore, is to consider whether the applicant has established that the delegate did not address these considerations.

The delegate’s reasons

The letter which notified the applicant of the cancellation decision said:
On 04 February 2003 the Department notified you of its intention to consider cancellation of your visa. You replied in writing on 19 February 2003. Your comments have been taken into account in making this decision.
The Department has decided that there is a ground for cancellation of your visa under paragraph 116(1)(b) of the Migration Act 1958:
Its holder has not complied with a condition of the visa.
You were granted a subclass 457 temporary business visa on the basis that you would be employed by your sponsor, G & EM Pty Ltd, in the position for which you were nominated. The Department subsequently received advice on that you ceased employment with your sponsor G & EM Pty Ltd. There is, therefore, a ground to cancel your visa under paragraph 116(1)(b) since you have failed to comply with a condition of your visa – specifically condition 8107 (the holder must not change employer or occupation in Australia without the permission in writing of the Secretary).
Your visa was cancelled on 25 July 2003. The reasons for not cancelling your visa were not considered sufficient to outweigh the existence of the ground for cancellation of your visa under paragraph 116(1)(b) because you have not complied with a condition of the visa. Therefore, as you have breached a condition of your visa, Section 116(1)(b) must apply. This course of action is consistent with Mansfield J’s reasoning in the matter of Huang [2001] FCA 1171 (27 August 2001). A copy of the decision record is attached.
…
Counsel for the Minister drew my attention to the fact that the delegate did not describe the attached “decision record” as containing her reasons, either partially or exhaustively. He also pointed out that there was no statutory obligation on her when notifying the decision to do more than “specify the ground for the cancellation” and other consequential matters (see s.127). He contrasted this with express duties on immigration tribunals to set out reasons and findings (c.f. s.368). He pointed out that there is no statutory obligation on the Minister when deciding to cancel a visa under s.116(1) to notify “the reasons for the decision” such as is found in relation to a decision to cancel on character grounds under s.501 (see s.501G(1)(e), discussed in Minister v W157/00A (supra) at [33-40]). One reason for the legislature deciding not to impose an obligation on the Minister to give reasons for a s.116(1) cancellation may be that it anticipated that these decisions may need to be made urgently or routinely, and that rights of merits review would sufficiently allow exploration of whether the decision was a correct and preferable exercise of power.
I accept that the absence of a statutory obligation to provide reasons makes it much less easy for me to infer from the absence from the delegate’s “decision record” of discussion of a matter which was required to be addressed by her, that she failed to consider it (c.f Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], [75]; WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]). However, I do not accept that the attached “decision record” is necessarily incapable of revealing such a failure.
In the present case, I consider that the covering letter represents to the applicant that the enclosed “decision record” shows not only a record of the making of the decision but also a record of the reasoning process followed by the delegate. The letter itself informed the applicant of the decision and the ground on which it was taken, and it would be absurd to offer the fuller record of the decision‑making unless it was thought that this would better inform the applicant of the delegate’s reasoning process. It would be consistent with the normal practices of Commonwealth administration to read the document as a record intended to show that a lawful and rational reasoning process was followed, and not just as a bald statement of a decision‑maker’s conclusions.

That, in fact, the “decision record” attempts to provide a description of the delegate’s reasoning becomes clear from its arrangement and language. Most significantly, in “Part C” and “Part D” it expressly separates out the two issues for determination by the delegate: the “Grounds for cancellation”; and the “Decision whether to cancel”. It also does more than record conclusions on these two issues, but is arranged with headings which show and explain a process by which the delegate appears to identify and record the factual matters which the delegate considered were relevant to each issue. The delegate has then recorded an “assessment” of those factual matters.
The record thus, from its apparent content and arrangement, does in fact constitute an abbreviated statement of reasons. This characterisation of the “record” is confirmed by Part E, the “Decision”, which states: “In view of the findings and assessment above, I have decided to cancel Byung Hyun Lee’s visa”.
I, therefore, consider that I may examine the reasoning described in the “decision record” and attempt to draw conclusions from it whether the delegate did or did not address the matters identified by counsel for the applicant (see [8] above). However, when doing this, I accept that I should give the delegate every allowance for intending only a brief recording of her reasoning, and also give her the benefit of ambiguities arising from the expression and arrangement of her reasons (c.f. Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291). For reasons given above, I cannot assume that, in the absence of a statutory obligation to set out all relevant findings, that a matter was not considered merely from the absence of reference to it.
The opening section of Part C of the decision record purports to identify the matters put forward by the applicant relevant to deciding if the ground for cancellation existed:
PART C: GROUNDS FOR CANCELLATION
Does the visa holder agree that there are grounds for cancellation?
No.
If no, reasons why the visa holder considers the grounds do not exist:
The visa holder requests that he be allowed to “remain in Australia with the condition that (he finds) another sponsor.” He confirms that he ceased employment with the approved business sponsor in October 2002 due to “marital difficulties” (his wife and two children leaving him and returning to Korea). He explains “being on my own in Australia and uncertain of my future I began to feel emotional and unsettled with my work situation. It was on this basis that I decided to leave my job and give attention to what I should do and regain some focus and perspective on my life.” He further states that “the uncertainty of my future compelled me to act hastily and as a result ‘the extent of my non‑compliance with any conditions subject to which my visa was granted’ has been in question.”
The visa holder states that he has “made commitments to major purchases such as a motor vehicle, furniture and other household appliance items. He also states that he enjoys “the Australian way of life and work and wish to permanently reside here.”
He further declares that his “relationship with the Department has been cordial” and he appreciates our “attention and sympathy on (his) plight.”
Assessment
I consider that there are grounds for cancellation under paragraph s116(1)(b).
The record then purports to explain this assessment under a heading “Reasons”. In effect, it reaches the inevitable conclusion that the applicant was in breach of Condition 8107 attaching to his visa.
The delegate then records her discretionary decision and ultimate decision as follows:
PART D: DECISION WHETHER TO CANCEL
Did the visa holder provide reasons why the visa should not be cancelled?
Yes.
Reasons:
Please see reasons under Part C
Assessment:
The Department served Byung Hyun Lee a Notice of Intention to Cancel on 04/02/03 to which he replied on 19/02/03. The reasons for not cancelling the visa were not considered sufficient to outweigh the existence of the grounds for cancellation.
In coming to the following assessment I have taken into account the visa holder’s response to the Notice of Intention to Cancel and the guidelines set out in MSI 368 (Visa Cancellation under Sections 109,116, 128 & 140).
PART E: DECISION
In view of the findings and assessment above, I have decided to cancel Byung Hyun Lee’s visa.
I consider that the reference under “Reasons” to “Please see reasons under Part C”, is a cross‑reference to the passage in Part C which I have extracted above. It also appears, prima facie, to be the delegate’s identification of relevant “reasons why the visa should not be cancelled” which had been provided by the visa holder in his response. If so, I accept the contention of the applicant’s counsel that she had not, in the passages extracted under “Part C”, included the applicant’s family welfare concerns raised in his response which I highlighted above. Rather, she had extracted only the concerns personal to the applicant himself. The significant issue is whether I can conclude from this that she overlooked the further family concerns and the related need to treat the children’s interests as a primary consideration, when she made her discretionary decision.
Under her heading “Assessment” her reasoning is described in two paragraphs. If the first paragraph is read in isolation, I might conclude that her reference to “the reasons” which “were not considered sufficient” limits the matters she weighed to those which she had isolated and identified under Part C. This would suggest that she forgot to assess the children’s best interests. If so, jurisdictional error would have been established.
However, the second paragraph of the assessment is worded in more general terms. The opening words refer to “the following assessment”. This is problematic, since no “assessment” did follow. This inconsistency, and the generality of the language of the paragraph, causes me to think that the delegate has “cut and pasted” this paragraph from a template or other decision record. However, this derivation does not allow it to be ignored (c.f. Minister for Immigration v Wu (supra) at 266). To give meaning to this paragraph, I accept counsel for the Minister’s submission that “the following assessment” should be understood to mean “the above assessment”, being the delegate’s conclusion that the reasons for cancelling outweighed the reasons for not cancelling.
I am still left in doubt whether this paragraph was intended to amplify the limited reasoning of the delegate which is implicit in the first paragraph as described above. In particular, whether the delegate should be understood to be confirming that she has taken into account matters which she did not identify in her “reasons under Part C” but which were found in the applicant’s response and in MSI‑368.
Counsel for the Minister contended that this was the literal effect of the paragraph and that, when so read, it was a “cover all” which prevented my concluding that the delegate overlooked anything in the applicant’s response to the show‑cause Notice. An alternative reading would be that her reference to “I have taken into account the visa holder’s response” is a reference only to such parts of the applicant’s response as she had earlier identified in “reasons under Part C”.
There is a similar question whether in this paragraph the reference to “the guidelines set out in MSI 368” should be read as establishing that the delegate did address the primary consideration in relation to the hardship to family members under para.17.2, or only that she considered such parts of the guidelines as were relevant to the parts of the applicant’s response which she identified in the “reasons under Part C”.
Reluctantly, I have decided that I must accept the submissions for counsel for the Minister. The reasoning process described in the decision record is so cryptic and incomplete that I am unable to reach satisfaction as to what considerations were or were not addressed by the delegate. I am not able to identify what, in fact, was the reasoning followed by the delegate (c.f. Minister for Immigration v W157/00A (supra) at [65-68], and [107]). I am far from satisfied that the delegate did properly identify and assess the hardship resulting to the applicant’s family from cancellation of his visa, and, in particular, the potential interference with the best interests of his children. However, I am not able to conclude positively from her very short and obscure “decision record” that the delegate overlooked these considerations.
The surrounding circumstances do not help me reach such a conclusion, but rather suggest that it is unlikely that the delegate overlooked anything said by the applicant in his response to the Notice. His response was short, and his concern for his family was apparent. It seems unlikely that the delegate would forget what he had said. It is also difficult for me to assume that she would forget the importance given in the Migration Series Instruction to considering the interests of dependents.
On all the evidence before me, I am unable to conclude that the delegate overlooked the applicant’s family welfare concerns or “the degree of hardship which may be caused to the visa holder and any family members”. Nor am I able to conclude that the delegate did not “treat as a primary consideration the effect of cancellation on any such children” in accordance with MSI‑368 para.17.2.
I therefore am not satisfied that the decision was affected by jurisdictional error in the manner contended, and must dismiss the application.
This conclusion means that I do not need to address the Minister’s alternative contention that I should refuse relief in the exercise of discretion.
The parties have agreed on the costs order which I shall make.

I certify that the preceding thirty‑nine (39) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 16 March 2005