Matete v Minister for Immigration
[2008] FMCA 573
•7 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MATETE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 573 |
| MIGRATION – Review of Migration Review Tribunal decision – visa cancellation – incorrect information included in incoming passenger card and outgoing passenger card – reg.2.55 governs service of notices of intention to consider cancellation of visa and notices of cancellation of visa – allegation of bias not proved – a tendency of mind or predisposition does not amount to bias – Tribunal’s mind not closed to persuasion – notice of intention to consider cancellation of visa evidenced delegate’s view that there had been relevant breaches of the Migration Act 1958 – criterion for the issue of the notice under s.107(1) was met – department failed to provide the Tribunal with all the relevant documents it held – no jurisdictional error demonstrated by Tribunal not considering material which was never supplied to it. |
| Migration Act 1958, ss.101, 102, 103, 104, 105, 107, 109, 352, 359A, 375A, 494B Migration Regulations 1994, regs.2.41, 2.42, 2.55 |
| Minister for Immigration & Citizenship v SZKPQ [2008] FCAFC 21 VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 |
| Applicant: | TEINA MATETE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3590 of 2007 |
| Judgment of: | Cameron FM |
| Hearing dates: | 3 March, 9 May, 20 June, 18 July, 29 July 2008 |
| Date of Last Submission: | 29 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr D.H. Godwin |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3590 of 2007
| TEINA MATETE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant was granted a Subclass 444 (Special Category) visa on 7 August 2000. On 29 May 2007 the Minister’s delegate cancelled the applicant’s visa pursuant to s.109(1) of the Migration Act 1958 (“Act”). The applicant then applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Relevant legislation
The applicant’s visa was cancelled under s.109 of the Act when the Minister’s delegate found that the applicant had failed to comply with ss.102, 103 and 105.
Section 102 provided:
A non-citizen must fill in his or her passenger card in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given.
Section 103 provided:
A non-citizen must not give an officer, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given.
Section 105 provided:
(1) If a non‑citizen becomes aware that:
(a)an answer given in his or her application form; or
(b) an answer given in his or her passenger card; or
(c)information given by him or her under section 104 about the form or card; or
(d) a response given by him or her under section 107;
was incorrect when it was given, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
Section 107 requires that if the Minister considers that a visa holder did not comply with ss.101, 102, 103, 104 or 105 the Minister may give the visa holder notice, giving particulars of the possible non-compliance, inviting the visa holder’s response and stating that cancellation of the visa may be considered. Such a notice is to be given to the visa holder by the methods set out in 2.55 of the Migration Regulations 1994 (“Regulations”). That regulation relevantly provided:
(3)For a document mentioned in paragraph (1) (a) or (c), the Minister must give the document in one of the following ways:
(a)by handing it to the person personally;
(b) …
(c)by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the person’s last residential address, business address or post box address known to the Minister;
Regulation 2.55 also provides the methods by which notices of visa cancellations under s.109 are to be given.
Section 109 of the Act provided:
(1)The Minister, after:
(a)deciding under section 108 that there was non-compliance by the holder of a visa; and
(b)considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c)having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
Regulation 2.41 of the Regulations provided:
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a)the correct information;
(b)the content of the genuine document (if any);
(c)the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;
(d)the circumstances in which the non-compliance occurred;
(e)the present circumstances of the visa holder;
(f)the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g)any other instances of non-compliance by the visa holder known to the Minister;
(h)the time that has elapsed since the non-compliance;
(j)any breaches of the law since the non-compliance and the seriousness of those breaches;
(k)any contribution made by the holder to the community.
Background facts
The reasons grounding the cancellation of the applicant’s visa were as follows:
a)on an incoming passenger card dated 7 August 2000 and an incoming passenger card dated 20 February 2001, the applicant:
i)stated that his surname was “Matete” and his given name “Teina Antonio Tereia”;
ii)stated that his date of birth was 11 March 1969;
iii)stated that he had no criminal convictions; and
iv)declared that the information he gave was true, correct and complete and that he understood that failure to answer any questions might have serious consequences;
b)on an outgoing passenger card dated 1 February 2001 the applicant:
i)stated that his surname was “Matete” and his given name “Teina Antonio Tereia”;
ii)stated that his date of birth was 11 March 1969; and
iii)declared that the information he gave was true, correct and complete;
c)on 7 August 2000 and 20 February 2001 the applicant presented a New Zealand passport in the name of “Teina Antonio Tereia Matete” to an officer at Sydney International Airport in order to gain entry to Australia. Information held indicated that this document had been obtained fraudulently by providing false information to the New Zealand Passport Office;
d)information from the New Zealand authorities indicated that:
i)the applicant’s name real was “Takave Pokoati”;
ii)his date of birth was 13 November 1968; and
iii)he had an extensive criminal history in New Zealand;
e)the applicant did not voluntarily come forward as soon as practicable to advise the department that the information given by him was incorrect and he did not provide the correct information;
f)New South Wales authorities provided information to the department that since 2001 the applicant has been involved in over 20 criminal offences and that on 11 May 2007 he was sentenced to five months’ imprisonment for assault, malicious damage and possession and supply of drugs; and
g)the applicant provided no information to the department that he had made any contribution to the Australian community.
The Tribunal’s decision and reasons
The Tribunal affirmed the delegate’s decision to cancel the applicant’s visa. The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found that the applicant was properly served with the s.107 notice as required by the Act, noting that:
i)departmental officers stated that they attended Byron Bay police station on 11 May 2007 and explained to the applicant the grounds on which the department was considering cancelling his visa. The applicant refused to accept the Notice of Intention to Consider Cancellation (“NOICC”) issued pursuant to s.107 of the Act or to co-operate with the departmental officers. The officers subsequently left the NOICC with the Byron Bay police; and
ii)a letter from the applicant’s solicitors stated that “immigration officers produced some paperwork for the defendant to read and sign. The defendant declined to sign the papers until receiving legal advice”;
b)the Tribunal found that “Teina Antonio Matete” and “Takave Pokoati” were the same person, noting that:
i)none of the applicant’s personal referees attested to knowing him in New Zealand;
ii)the Tribunal had reference to photographs of Takave Pokoati sent by New Zealand authorities and observed the applicant at the hearing; and
iii)fingerprint evidence from New Zealand Interpol indicated that the applicant is Takave Pokoati;
c)the Tribunal placed no weight on the birth certificate produced by the applicant or the subsequently issued New Zealand passport in the name of Matete;
d)in light of the Tribunal’s findings above, it further found that:
i)the applicant filled in his passenger cards with incorrect answers; and thus
ii)there was non-compliance by the applicant with s.102 as described in the s.107 notice (i.e. the NOICC); and
e)the Tribunal concluded the applicant’s visa should be cancelled pursuant to s.109, noting that:
i)it placed weight on the applicant’s continued denial of his identity even when informed that his identity had been confirmed by fingerprint evidence;
ii)the applicant did not show remorse for his actions;
iii)owing to his criminal history he may not have obtained a visa to enter Australia had he used his true identity; and
iv)while the Tribunal accepted that the applicant has made a contribution to the Australian community with his involvement with Maori youth in Australia, it also placed weight on the applicant’s criminal history in Australia.
Proceedings in this Court
Notice of visa cancellation – s.109
In his amended application the applicant alleged that the notice of visa cancellation was incorrectly addressed with the consequence that it could not be considered to have been given to him. Although it has not been articulated in these terms, it must be taken that the applicant alleges that the Tribunal erred by failing to conclude that the visa cancellation notice had not been properly given to him in accordance with the Act and the Regulations.
In the amended application the applicant submitted that he received the cancellation notice by means of registered mail while serving a five month sentence in Grafton Correctional Centre and that the notice of cancellation was addressed to Grafton Correctional Centre rather than to him. He submitted that such notification did not comply with the requirements of s.494B of the Act. That section provides for the methods by which certain notices are to be given to individuals and operates to require such notices to be given to that individual’s “authorised recipient” if one has been appointed. The applicant submitted that he had not appointed an authorised recipient to receive notifications and thus correspondence from the department to him at the Grafton Correctional Centre failed to comply with the requirements of s.494B. However, contrary to the applicant’s submissions, s.494B is not applicable to the cancellation notification. In this case reg.2.55 is: see regs.2.55(1) and 2.42.
There being no issue as to when the notification was dispatched by the Minister’s department, sending the visa cancellation notice to the applicant at Grafton Correction Centre met the requirements of reg.2.55(3)(c). The applicant’s last residential address known to the Minister was the Grafton prison and it was thus necessary and appropriate that the notice be sent to the applicant there. Regulation 2.55 does not require an individual in the applicant’s position to have notified the Minister or his department of an address for the giving of notices. In any event, I infer from the way the notice was addressed (CB 26) that any envelope in which the notice was sent was addressed to the applicant and not to anybody else. Such a form of posting would satisfy the requirements of the Regulations: Minister for Immigration & Citizenship v SZKPQ [2008] FCAFC 21 at [22].
The applicant also relied on the decision of VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 and submitted that he had never advised the department of an address to which notifications ought to be sent. He submitted that this left the department with personal service under s.494B(2) as the only option available to it to effect service upon him of notices such as the notice of cancellation. He therefore submitted that the notice of cancellation had not been given to him in accordance with the requirements of s.494B. However, VEAN’s case has now been significantly limited in its operation by Minister for Immigration & Citizenship v SZKPQ. Moreover, it is quite distinguishable from this case, not least because it deals with s.494B, rather than reg.2.55.
Notice of intention to consider cancellation of visa – s.107
The applicant also alleges that he was never given the s.107 NOICC in the manner required by the Act or the Regulations. The Minister says that the notification was given to the applicant personally at the Byron Bay police station on 11 May 2007 but the applicant denies this.
His evidence was that he only received a faxed copy of the notification two months after the events at the Byron Bay police station on 11 May 2007. Whether the NOICC was personally served on the applicant was a question of fact for the Tribunal to determine which would, in turn, determine whether the Minister’s delegate had had the power under s.109 to cancel the applicant’s visa. It is the Tribunal’s role to make findings of fact and if they were open on the evidence, those findings cannot be reviewed by the Court. Given the evidence before the Tribunal, as set out in its decision record, I find that its conclusion that the NOICC had been personally served on the applicant was open to it and thus I further find that its conclusion that the NOICC had been served in accordance with reg 2.55(3) was not erroneous.
Notwithstanding that this factual issue was a matter reserved to the Tribunal for determination, the parties nevertheless led evidence on it.
The applicant’s evidence is that after he was sentenced to imprisonment in Local Court proceedings at Byron Bay on 11 May 2007, he was in the cells at the Byron Bay police station awaiting escort to Grafton. He says that, while there, a police sergeant approached him saying that Department of Immigration and Citizenship officials were there to speak to him and to have a paper signed. The applicant’s evidence was that he refused to be interviewed by the departmental officers because he had no lawyer present and needed legal advice. He also said that while he was at the police station two people, presumably the departmental officers, searched his possessions but did not speak to him before they left.
The applicant says that an hour later he asked the police sergeant for the paper which the departmental officers had left but was told that it was now police property and would be placed with his personal effects which were accompanying him to Grafton. The applicant denied ever having taken in his hands a paper given to him by the departmental officers or, in fact, having had any discussions with them.
The Minister’s case is that two departmental officers spoke to the applicant at the Byron Bay police station on 11 May 2007. One of these officers, Mr Hall, gave evidence at the hearing in these proceedings.
In his affidavit affirmed 26 February 2008 Mr Hall deposes that in an interview room at Byron Bay police station on 11 May 2007 he had a brief meeting with the applicant at which time he handed him a copy of the NOICC which the applicant took and placed on the table in front of him following which the following events and conversation occurred:
10.Mr Matete looked at the notice and then pushed it away from himself. To the best of my recall the following words were said:
He said:
“I am not signing anything.”
I said:
“You are not required to sign the NOICC.”
He said:
“I don’t not need a visa [sic]. I’m a permanent resident.”
I said:
“I have reason to believe you are in Australia on a subclass 444 visa.”
He said:
“Are you going to throw me out of the country?”
11. I then said words or words to the following effect:
“Removal to New Zealand is a possible outcome, but you have the opportunity to tell your side of the story by responding to the NOICC.”
12.Mr Matete then appeared to me to become agitated …
13.… He was then escorted out of the room by NSW Police officers …
14.After Mr Matete had left the room I noticed that he had left the NOICC on the table. I handed the NOICC to a Senior Constable Richard Hughes of the NSW Police and said the following words of words to the effect:
“Please put the NOICC with Mr Matete’s personal possessions and ensure he has access to the NOICC when he is transferred to prison”
I am not satisfied that the events alleged by the applicant occurred at the Byron Bay police station in the manner he alleges. First, I consider it implausible that two officers of the Minister’s department would be interested in rifling through his personal possessions while he was in custody at the police station. I also think it unlikely that the police on duty would have permitted officers of the Minister’s department to do this. There is no logical reason why the departmental officers would want to search the applicant’s possessions or seek to do so and the fact that he alleges that they did conduct themselves in this fashion throws doubt on the remainder of his narrative.
Further, in their letter to the officer in charge of the Bryon Bay police station dated 26 June 2007 the applicant’s then solicitors requested a copy of the NOICC, saying:
The immigration officers produced some paperwork for the defendant to read and sign. The defendant declined to sign the papers until receiving legal advice. (CB 47)
This statement contradicts the applicant’s evidence to the Court that he did not speak to the departmental officers.
That letter from the applicant’s solicitors to Byron Bay police also corroborates the evidence of Mr Hall which I prefer in any event.
He appeared to me to be a straightforward and honest witness who answered the few questions which were posed to him in a direct and straightforward manner. It should also be noted that the applicant advanced no reason why Mr Hall would have manufactured or constructed the evidence he gave concerning the events at the Byron Bay police station on 11 May 2007.
I find that the NOICC was personally handed to the applicant at the Byron Bay police station on 11 May 2007 which action satisfied the service requirements of reg.2.55 and that the Tribunal was correct when it found that the NOICC had been properly served on the applicant in accordance with reg.2.55(3).
Allegation of bias
The applicant also alleges bias on the part of the Tribunal. He submits that the Tribunal had prejudged his case and that it did not matter what he had said to the Tribunal because its mind was made up.
The applicant submitted that during the Tribunal hearing he was interrogated rather than heard and did not have a chance to argue his identity.
In support of this allegation the applicant put into evidence a sound recording of the Tribunal hearing. At the hearing before the Court he did not identify what particular portions of the Tribunal hearing should be identified as disclosing prejudgment on the part of the Tribunal.
The Minister was given leave to file written submissions in response to this aspect of the case as it had not formed part of the applicant’s amended application. The Minister was granted leave to uplift the cassette tape and in his subsequent written submissions said that the Tribunal:
a)explained to the applicant the difficulties it was having with the conflicting evidence concerning his identity and its lack of satisfaction that the birth certificate and passport tendered by him should be considered to be better evidence of his identity than the fingerprint identification undertaken by New South Wales and New Zealand police, which identified him to be Pokoati Takave rather than Teina Matete;
b)let the applicant give the evidence and make the submissions which he wished to make;
c)heard his two additional witnesses;
d)took oral submissions from the applicant’s solicitor; and then
e)sought to explain the purpose and significance of a s.359A letter which it proposed to send him.
The Minister submits:
… that the applicant was given an extensive opportunity to address the RRT on the issues which principally concerned it (identity and the service of the NOICC) as well as any other matter. The applicant’s solicitor was also given the opportunity to address the RRT. The applicant was then given a further opportunity to put submissions in writing in response to a further s.359A invitation.
There is no indication that the applicant was in any way overborne by the RRT or cut off or prevented from providing such information as he wished. The applicant was assertive and took the initiative in making sure he was allowed to finish his answers and that the RRT was listening to those answers.
In reply, the applicant submitted that:
a)the Tribunal created an atmosphere of bias because he was not correctly represented by his lawyer, who appeared by telephone rather than in person;
b)the Tribunal did not accept any of the “true facts about the evidence presented”;
c)the applicant felt like a second class citizen because he was constantly told his claimed identity was false;
d)he was never given the opportunity to express his concerns “about the false evidence of my Identity” because the Tribunal “had made up her mind on the issues before her, and nothing I claimed would change the events that took place concerning my identity”; and
e)the Tribunal did not want to entertain any statements the applicant made and his efforts to answer the Tribunal’s questions were taken as untruths.
I have listened to the audio tape of the Tribunal hearing and it is apparent that the Tribunal member and the applicant were, at times, quite firm with each other. Even so, the applicant was not prevented from putting the evidence and submissions which he wished to make. Nor was any complaint made to the Tribunal by the applicant’s solicitor, who appeared by telephone at the Tribunal hearing, concerning the conduct of that hearing. What the applicant perceives as prejudgement on the part of the Tribunal is, in fact, a rational preference for the fingerprint evidence over the passport and birth certificate as the best means by which to determine his identity. I do not conclude that the Tribunal’s mind was closed to persuasion, notwithstanding that the questions and propositions she put disclosed an inclination to place greater weight on the fingerprint evidence obtained from the police than upon the documentary evidence tendered by the applicant. This fact is not indicative of a closed mind. In Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at 531–532 [71] Gleeson CJ and Gummow J said in the context of a claim of actual bias:
Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
It is apparent to me that the Tribunal was inviting the applicant to put to it any evidence he might have which would outweigh the fingerprint evidence; it had not closed its mind to the possibility of other, more compelling, evidence being led.
It must be noted that at some points the Tribunal’s politeness to the applicant became forced and strained and that at times both the Tribunal and the applicant became impatient with each other. Even so, the Tribunal member did not, in my appreciation, evidence a mind which was not open to persuasion or suggest by her behaviour that she was not bringing an impartial and unprejudiced mind to the resolution of the review application.
The applicant also submitted that at the hearing the Tribunal referred to evidence of fingerprints and photographs which it did not put to him. The applicant submitted that the Tribunal member kept saying that she had hard evidence by reference to photographs and fingerprints and his solicitor requested copies of them. Information concerning the photographs and fingerprints was provided to the applicant by means of a s.359A notice. The fingerprint evidence itself was subject to a ministerial certificate under s.375A of the Act which prevented the disclosure of the underlying evidence to the applicant and his representatives. Nevertheless, in its further s.359A notice dated 22 October 2007 the applicant’s solicitors were provided with the substance of the relevant correspondence which was that the fingerprints held by the New Zealand police in relation to Takave Pokoati were the same as the fingerprints held in Australia in respect of Mr Matete.
The Tribunal discharged its obligations in respect of this information and the fact that it did not provide the actual fingerprint records to
Mr Matete was the result of the Minister’s s.375A notice and does not manifest any bias on the part of the Tribunal.
Validity of the s.107 NOICC
After judgment was reserved on 3 March 2008, Lander J delivered his judgment in Zhong v Minister for Immigration & Citizenship [2008] FCA 507. In his reasons for judgment his Honour found that the NOICC served in that case was defective because his Honour concluded that there was insufficient evidence that, before sending the notice, the Minister had the state of mind mandated by s.107(1). That sub-section provides:
107 Notice of incorrect applications
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance …
Although his Honour concluded that s.107 does not require that the notice include a statement to the effect that the Minister or delegate considered that the visa holder had not complied with the sections or sub-sections mentioned in s.107(1) it was, nevertheless, necessary that the Minister or the delegate actually be of the view that there had been such a non-compliance. As his Honour said:
Section 107(1)(a) does speak of "possible non-compliance". However, that, in my opinion, does not mean that the Minister or the Minister’s delegate only has to suspect that there has been non-compliance. The Minister or the Minister’s delegate must consider that there has actually been non-compliance before either one is entitled to give the notice. (at [74])
The Minister brought this issue to the attention of the Court and on
9 May 2008the parties were granted leave to file written submissions limited to the question of the validity of the s.107 notice.
The NOICC in Zhong’s case was summarised and quoted in the reasons for judgment of Lander J at [19]:
That notice referred in detail to the telephone interview had on 17 September 2001 and the appellant’s answers to the questions put to him. It then referred to Su Yun Lu’s application for migration to Australia and her subsequent interview by an officer of the Department of the Australian Consulate at Guangzhou. The notice continued:
“On 7 May 2003, your spouse Ms LU, Su was requested to attend an interview with the Australian Consulate, Guangzhou. At this interview your spouse, Ms Lu, Su, admitted that she had provided bogus documents to the Department with her application.
“Ms LU, Su also admitted that she had resided with you since 1998. Ms LU, Su also stated that the child’s birth certificate submitted with her application was also a bogus document. Ms LU, Su admitted that you were the father of her child.
“Hence, I am of the opinion, that you may have provided incorrect information on your Application for Migration to Australia, lodged with the Australia Consulate on 25 September 1998. I also note that in completing the above application form, you failed to provide details of your defacto spouse, Ms LU, Su. I also note that you failed to provide details of your child, LU, Bao Li, who was born on 4 June 1999.
“Based on this information, I believe that you may have provided incorrect information in relation to your defacto spouse and your child on your application for the class 104 visa. I also believe that your intentions, prior to the lodgement of the Application for migration to Australia, may have been to provide incorrect information in order that you would be eligible for the class 104 permanent residence visa.
“If you did not comply with section 101, your visa may be cancelled. It does not matter whether you deliberately or inadvertently did not comply.
“The Migration Act 1958 gives you the opportunity to comment on this possible ground for cancellation and to give a written answer why your visa should not be cancelled. Your answer should say:
“● why you think you have complied, or why you have not complied, with section 101; and
“● why you think your visa should not be cancelled (even if you think you have complied).”
It appears from this quotation that although the delegate in Zhong’s case was quite concerned about the information provided to the Minister’s department, he or she was nevertheless uncertain whether there had been a breach of the provisions referred to in s.107(1).
The NOICC in this case was quite differently worded and demonstrates that the delegate considering the applicant’s position did consider that there had been relevant breaches. Relevant passages from that letter are set out in Annexure A to these reasons. The forms of words used by the delegate, Mr Hall, make it clear that he was of the view that the applicant was in breach of ss.102, 103 and 105 of the Act. The fact that Mr Hall expressed himself in terms that the applicant “may not have complied with” the relevant provisions is not conclusive of Mr Hall’s opinion. Rather, that form of expression reflects the reality that the delegate might have been incorrect in his conclusion, as contemplated by s.107(1)(a), and a willingness to consider such a possibility.
Mr Hall expressed his view when he said in relation to the incoming passenger cards dated 7 August 2000 and 20 February 2001 and the outgoing passenger card dated 1 February 2001 that the applicant had “provided incorrect answers” and then gave the reasons for that statement by reference to information provided to the Minister’s department by the New Zealand police. A similar conclusion applies to the NOICC’s reference to the applicant’s New Zealand passport where Mr Hall states:
Information held by the Department and information provided by New Zealand Police indicates that you fraudulently obtained this document by providing false identity information to the New Zealand Passport Office. (CB 33–34)
The NOICC could have been more clearly drafted and although there is no statutory obligation to do so, could have stated more explicitly that the Minister’s delegate considered that the applicant had breached ss.102, 103 and 105 of the Act. Even so, the NOICC in this case is significantly different from the NOICC considered by Lander J in Zhong’s case and I conclude that the statutory pre-condition for its issue and service was satisfied.
New Zealand email to Minister’s department
After written submissions had been filed on the issue concerning s.107 to which the Minister had drawn the Court’s attention, the applicant applied and was granted leave to reopen his case to lead evidence which, he submitted, showed that the Minister’s department knew that he was not Takave Pokoati and knew he was who he claimed to be. In respect of his application, the applicant relied on an email from the New Zealand government to Mr Hall dated 9 May 2007 which stated that no person named Takave Pokoati had ever been born in New Zealand.
His argument was that this information had been provided by the Minister’s department to the Tribunal and was amongst the documents covered by the Ministerial certificate referred to above at [32].
If the applicant were able to show that the Tribunal had been in possession of this information it might have been open to the Court to find, based on its decision record, that the Tribunal had failed to consider this material. If so, a finding of jurisdictional error on the part of the Tribunal might also have been open. However, the Minister adduced evidence which satisfies me that the Tribunal did not have the document in question. First, the evidence of Manal Hajaj, a Tribunal officer, was that she had inspected the Tribunal’s file and the email referred to by the applicant was not on that file. Secondly, Jason Dean, a departmental officer, gave evidence that he was the person who inspected the departmental documents prior to the issuing of the Ministerial certificate and was the officer who signed that certificate. His evidence was that although the email in question was part of an electronic file held by the department it was not amongst the documents perused by him and sent to the Tribunal. His evidence was that in fact, the electronic file was not accessed by him until 2 February 2008 at 9:27am. Mr Dean’s evidence, which I accept, was that the only documents be perused for provision to the Tribunal were those in the department’s physical file.
Consequently, I conclude that the email was never provided to the Tribunal and thus it never had the opportunity to consider it. It was not suggested that the Tribunal was independently aware of the document in question. No jurisdictional error arises out of the fact that the Tribunal did not consider a document which it never had before it for consideration, notwithstanding that that document should have been sent to it by the Minister’s department in compliance with s.352(4) of the Act: WAGP v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 151 FCR 413.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 7 August 2008
Annexure A
Mr Teina Antonio Tereia MATETE (aka: Takave POKOATI)
By Hand
NOTICE OF INTENTION TO CONSIDER CANCELLATION UNDER S109 OF THE MIGRATION ACT 1958
Dear Mr MATETE,
It has come to the Department’s attention that you may not have complied with sections 102, 103 and 105 of the Migration Act 1958 which state(s):
Section 102. Passenger cards to be correct
102.A non-citizen must fill in his or her passenger card in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answer are given
Section 103. Bogus documents not to be given
103.A non-citizen must not give an officer, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given.
Section 105. Particulars of incorrect answers to be given
105. (1) If a non-citizen becomes aware that:
(a) an answer given in his or application form; or
(b) an answer given in his or her passenger card; or(c)information given by him or her under section 104 about the form or card; or
(d) a response given by him or her under section 107;
was incorrect when it was given, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
“bogus document”,
in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been , but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly;
for the following reasons:
In your Incoming Passenger Card, signed and dated 7 August 2000, you provided incorrect answers to the following questions:
“Family/surname”
You answered “MATETE”“Given names”
You answered “Teina Antonio Tereia”“Date of birth”
You answered “11/03/1969”“Do you have any criminal conviction/s?”
You answered “No”You signed the declaration stating “The information I have given is true, correct and complete. I understand failure to answer any questions may have serious consequences.”
Information held by the Department and further information provided by New Zealand police, indicates as follows:
· “Teina Antonia Tereia MATETE” is not your real name;
· “11/03/1969” is not your real date of birth;
· that you used a false identity to gain entry to Australia;
· that your true identity is Takave POKOATI (Dob: 13/11/1968) (also known as Teina Antonio Tereia MATETE); and
· you have an extensive criminal history in New Zealand.
It therefore appears that you may not have complied with s102 of the Migration Act 1958 because you provided incorrect answers on your incoming passenger card.
Further, there is no record of you voluntarily coming forward, as soon as practicable, and advising DIAC of the incorrectness of the information you provided in your Incoming Passenger Card and the correct information. It is therefore considered that you may not have complied with s105 of the Migration Act 1958.
In your Outgoing Passenger Card, signed and dated 1 February 2001, you provided incorrect answers to the following questions:
“Family/surname”
You answered “MATETE”“Given names”
You answered “Teina Antonio Tereia”“Date of birth”
You answered “11/03/1969”You signed the declaration stating “The information I have given is true, correct and complete.”
Information held by the Department and further information provided by New Zealand Police, indicates as follows:
· “Teina Antonio Tereia MATETE” is not your real name;
· “11/03/1969” is not your real date of birth;
· that you used a false identity to gain entry to Australia;
· that your true identity is Takave POKOATI (Dob: 13/11/1968) (also known as Teina Antonio Tereia MATETE);
It therefore appears that you may not have complied with s102 of the Migration Act 1958 because you provided incorrect answers on your incoming passenger card.
Further, there is no record of you voluntarily coming forward, as soon as practicable, and advising DIAC of the incorrectness of the information you provided in your Outgoing Passenger Card and the correct information. It is therefore considered that you may not have complied with s105 of the Migration Act 1958.
In your Incoming Passenger Card, signed and dated 10 February 2001, you provided incorrect answers to the following questions:
“Family/surname”
You answered “MATETE”“Given names”
You answered “Teina Antonio Tereia”“Date of birth”
You answered “11/03/1969”“Do you have any criminal conviction/s?”
You answered “No”You signed the declaration stating “The information I have given is true, correct and complete. I understand failure to answer any questions may have serious consequences.”
Information held by the Department and further information provided by New Zealand police, indicates as follows:
· “Teina Antonio Tereia MATETE” is not your real name;
· “11/03/1969” is not your real date of birth;
· that you used a false identity to gain entry to Australia;
· that your true identity is Takave POKOATI (Dob: 13/11/1968) (also known as Teina Antonio Tereia MATETE); and
· you have an extensive criminal history in New Zealand.
It therefore appears that you may not have complied with s102 of the Migration Act 1958 because you provided incorrect answers on your incoming passenger card.
Further, there is not record of you voluntarily coming forward, as soon as practicable, and advising DIAC of the incorrectness of the information you provided in your Incoming Passenger Card and the correct information. It is therefore considered that you may not have complied with s105 of the Migration Act 1958.
On 07/08/2000 and again on 20/02/2001, at the Sydney International Airport, you gave a New Zealand passport number FO52925 in the name, Teina Antonio Tereia MATETE, to an officer to gain entry to Australia.
Information held by the Department and information provided by New Zealand Police indicates that you fraudulently obtained this document by providing false identity information to the New Zealand Passport Office. Therefore it appears that you may not have complied with s103 of the Migration Act 1958 because it is considered that you have an officer a bogus document because the document was obtained because of a false or misleading statement, whether or not made knowingly, to the New Zealand Passport Office.
Further, there is no record of you voluntarily coming forward, as soon as practicable and advising DIAC that you gave a bogus document and providing a genuine document and accurate information. It is therefore considered that you may not have complied with s105 of the Migration Act 1958.
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