MORGUN v Minister for Immigration
[2009] FMCA 1306
•3 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MORGUN v MINISTER FOR IMMIGRATION | [2009] FMCA 1306 |
| MIGRATION – Application to challenge decision of Minister’s delegate to cancel visa whilst applicant in immigration clearance – whether delegate committed jurisdictional error – whether delegate obliged to state reasons for decision – whether applicant entitled to interpreter – whether adequate interpretation provided – whether applicant breached condition 8107 – meaning of “inconsistent”. |
| Migration Act 1958 (Cth), ss.116, 119, 120, 166, 338 |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Craig v The State of South Australia (1995) 184 CLR 163 Singh v Migration Review Tribunal[2004] FCA 1079 Lee v Minister for Immigration [2005] FMCA 237 SZMKG v Minister for Immigration and Citizenship [2009] FCAFC 99 BRGAQ of 2008 v Minister for Immigration and Citizenship [2009] FMCA 782 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Yusuf v MIC [2002] FCA 1103 Le v MIC [2008] FMCA 1497 |
| Applicant: | RUSLAN MORGUN |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | BRG 709 of 2009 |
| Judgment of: | Wilson FM |
| Hearing dates: | 29 October & 3 November 2009 |
| Date of Last Submission: | 3 November 2009 |
| Delivered at: | Brisbane |
| Orders Delivered on: | 3 November 2009 |
| Reasons Delivered on: | 22 January 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Julien-Armitage |
| Solicitors for the Applicant: | N/A |
| Counsel for the Respondent: | Ms Wheatley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the decision of the delegate of the respondent made on 8 October 2009 to cancel the applicant’s Temporary Business Visa (class UC) – subclass 457 be quashed and a writ of certiorari be issued accordingly.
That the decision made by the delegate of the respondent on 8 October 2009 to place the applicant into immigration detention be quashed and a writ of certiorari be issued accordingly.
That the respondent pay the applicant’s costs of and incidental to the application fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS & BRISBANE |
BRG 709 of 2009
| RUSLAN MORGUN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
On 18 June 2008 the applicant was granted a Temporary Business Entry (Class UC) Visa – subclass 457 that entitled him to stay in Australia and work in a certain occupation, sponsored by a ‘business sponsor’. When issued, that visa was due to expire on 18 June 2012. The applicant arrived in Australia on 18 July 2008. Since that time, apart from short periods of leave, he has worked for his sponsor Howe Farming Enterprises Pty Ltd.
On 8 August 2009 the applicant departed Australia to visit family in his native Ukraine. That visit was marked by a family tragedy.
On 8 October 2009, after a long flight from Moscow, via Hong Kong, the applicant arrived at Cairns International Airport. His flight arrived at 8:45 am[1]. The applicant was ‘cold targeted’ by an officer of the department[2].
[1] Affidavit of A Yuille, exhibits, pages 68, 101
[2] Affidavit of Yuille, exhibits page 114
At 9:14 am[3] (or perhaps a little earlier) the applicant’s involvement with officers of the respondent began. He was asked some questions. He was told to wait in a certain area. He was interviewed, twice. At 3:12 pm the applicant was notified that his visa was cancelled[4]. He was then placed in immigration detention. A Notice to Remove was executed[5] and served on the airline that transported the applicant into Australia. The applicant was scheduled to be deported from Australia at 3:15 pm on 9 October 2009[6].
[3] Ibid, page 115
[4] Ibid, page 115
[5] Ibid, page 103
[6] Ibid, page 101
An urgent application to this Court resulted in the grant of interim injunctive relief on 9 October 2009, restraining the respondent from deporting the applicant from Australia. At that time, it was thought by the Minister’s representative that the applicant could apply for a bridging visa, pending the final hearing of any application for judicial review of the decision to cancel his visa. That proved not to be possible. As the applicant was being held in detention, an urgent hearing date was allocated. The applicant remained in detention. There were insufficient facilities to keep detainees at the Cairns airport. The applicant was transferred to Brisbane, and, at the time of the hearing on 29 October was scheduled to be transferred to a detention facility elsewhere in Australia at the end of the month.
The applicant seeks judicial review of the decision to cancel his visa, and for associated relief. The application is opposed.
The final hearing of the matter occurred in Cairns on 29 October and in Brisbane on 3 November 2009. At the conclusion of the hearing, and primarily because the applicant was continuing to be held in detention with the imminent threat of being transferred interstate, the Court gave its decision at the conclusion of final submissions and stated that reasons would be published subsequently. These are the reasons for the decision of the Court previously pronounced.
It is common ground that the decision to cancel the applicant’s visa was made by the delegate of the respondent[7], after interviews with the applicant. The Minister’s delegate was permitted to question the applicant under s.166(1)(b) and 1(c) of the Act. There was no argument in this case that the applicant was immigration cleared[8] when he was interviewed.
[7] Applicant’s submissions para. 1; Respondent’s submissions para. 21
[8] s.172(1) Migration Act
The matter comes before this Court, without any review by the Migration Review Tribunal. This is because the delegate’s decision is not an “MRT-reviewable decision” as defined by s.338 Migration Act 1958. In turn, that is because the delegate’s decision was made at a time when the applicant was in immigration clearance[9].
[9] s.338(3)(b) Migration Act
The delegate’s decision was made pursuant to s.116(1)(b) of the Act[10]. That subsection provides that a visa may be cancelled “if the holder has not complied with a condition of the visa”.
[10] Op. cit., page 24
The delegate’s decision was a ‘privative clause decision’[11]. However, the respondent accepted that the decision could be challenged for jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia[12].
[11] s.474(2) Migration Act
[12] (2003) 211 CLR 476 at 506-8, 511
A general description of what constitutes jurisdictional error is to be found in the judgment of Brennan, Toohey and McHugh JJ in Craig v The State of South Australia[13]:
"If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
[13] (1995) 184 CLR 163 at 179
In the amended Application filed 28 October 2009 the grounds of challenge to the delegate’s decision are stated as:
a)The delegate asked himself the wrong question, addressing his enquiries as to the tasks of an agronomist as opposed to that of an agricultural technical officer;
b)The decision-maker relied upon the inadequate skills of the interpreter who did not correctly and precisely interpret the questioning by the delegate.
The challenge to the decision based on the interpretation of the applicant’s evidence to the Minister’s delegate itself has two limbs. First, it is argued that from the face of the transcript of two of the interviews, it is obvious that the standard of interpretation was so deficient that the applicant was effectively prevented from giving his version of events[14]. Secondly, it is argued, having regard to expert evidence proffered by the applicant, that there were specific translation problems that caused the applicant’s evidence not to be effectively communicated.
[14] WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 at [29]
As to this second limb, the applicant served an affidavit of a qualified interpreter deposing to the various shortcomings in the translation of questions and answers during the interviews that were recorded. This evidence was provided to the respondent’s legal representatives very shortly before the hearing. It was objected to by the respondent’s counsel, primarily on the basis that the respondent had not had the opportunity to take its own advice on the accuracy, or otherwise, of the translations, and was thereby prejudiced. This objection was well founded.
Counsel for both parties then agreed, having regard to the continuing detention of the applicant, the allocation of an urgent hearing date, and the fact that both counsel had travelled to Cairns from Brisbane for the hearing, that it would be preferable if the Court could determine the applicant’s claim, other than that based on alleged critical specific interpretation errors; and if those arguments of the applicant were unsuccessful, give the Minister the opportunity of taking advice on the specific interpretation issues. Of course, if the applicant’s other arguments were successful; there would be no need for that further enquiry to be made.
An issue that arose during the hearing of this matter was whether the Minister’s delegate was required to state reasons for his decision to cancel the applicant’s visa. I accept the submission made on behalf of the Minister that there is no such obligation[15].
[15] As opposed to, for example, the Migration Review Tribunal: s.368(1)(c) of the Act; see Lee v Minister [2005] FMCA 237 at [20]
Subdivision E of Division 2 of Part 2 of the Migration Act deals with the procedure for cancelling visas under provisions such as s.116 of the Act.
In particular s.119(1)(a) and s.120 of the Act provide:
119 Notice of proposed cancellation
(1) Subject to Subdivision F (non‑citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:
(a) give particulars of those grounds and of the information (not being non‑disclosable information) because of which the grounds appear to exist; and
120 Certain information must be given to visa holder
(1) In this section, relevant information means information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for cancelling a visa; and
(b) is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and
(c) was not given by the holder; and
(d) was not disclosed to the holder in the notification under section 119.
(2) The Minister must:
(a) give particulars of the relevant information to the holder; and
(b) ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and
(c) invite the holder to comment on it.
(3) The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances.
Section 127(1) of the Act provides:
127 Notification of decision
(1) When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way.
Regulation 2.45 Migration Regulations prescribes that the notification of decision must be in writing.
The effect of these statutory requirements means that, although the Minister’s delegate was not required to give reasons for his ultimate decision to cancel the applicant’s visa, the Court can examine the documents generated by the delegate to glean his decision making process, in order to reach a more informed conclusion as to whether the decision maker committed jurisdictional error.
Condition 8107 applied to the applicant’s Class 457 visa[16]. That condition relevantly provides:
8107 The holder must not:
(a)if the visa was granted to enable the holder to be employed in Australia:
(i) cease to be employed by the employer in relation to which the visa was granted; or
(ii) work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or
(iii) engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted; or
[16] Schedule 2, clause 456.611 Migration Regulations; s.41(2)(b) Migration Act
(b) in any other case:
(i) cease to undertake the activity in relation to which the visa was granted; or
(ii) engage in an activity inconsistent with the activity in relation to which the visa was granted; or
(iii) engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.
The applicant was sponsored by Howe Farming Enterprises Pty Ltd to be employed as an Agricultural Technical Officer[17].
[17] ASCO (Australian Standard Classification of Occupations) Code 3112-17
Condition 8107 is critical to the determination of this matter. For the delegate to have acted within jurisdiction, he must have been satisfied that the applicant was working in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted. As set out in the preceding paragraph the position or occupation in relation to which the visa was granted was that of Agricultural Technical Officer.
This is not a case like Singh v Migration Review Tribunal[18] where the visa holder was found to have worked in a completely different occupation[19], or Lee v Minister for Immigration[20] where the visa holder left his sponsored employment. Rather, in this case the applicant has continued to carry out work for his sponsor employer.
[18] [2004] FCA 1079
[19] Taxi driver as opposed to visa occupation of IT consultant
[20] Op cit, footnote 15
The delegate of the Minister evidently reached his required state of satisfaction because of answers given to him during an interview that apparently constituted admissions either that the applicant was carrying out some different occupation or position, or that he was not carrying out the tasks required of him as an Agricultural Technical Officer.
One of the difficulties that has arisen in this matter is that the Minister’s delegate has not made any finding as to what position or occupation the applicant was working in, that is said to be inconsistent with that of an Agricultural Technical Officer. Without such a finding, how can it be said that the applicant is in breach of Condition 8107?
Counsel for the Minister submitted that it was not necessary for a finding to be made as to the position or occupation actually undertaken by the applicant. Rather, it was submitted that all the delegate had to be satisfied of was that the applicant was performing tasks inconsistent with those for which the visa was granted. That is, if the applicant was not performing the tasks of an Agricultural Technical Officer, he must, by reason of that fact, be performing work inconsistent with that of an Agricultural Technical Officer.
Coupled with this submission was a submission that I have already accepted, namely that the delegate was not required to state reasons for his decision. However, in my view, the obligation to give particulars of the grounds for cancellation, and of the information because of which those grounds appear to exist[21] means that if the delegate concluded that the applicant was working in a particular occupation of position that fact should have been disclosed.
[21] S. 119(1)(a) Migration Act
In the Notice of Intention to Consider Cancellation[22] the delegate expressly stated:
“I am satisfied that you have breached visa condition 8107 because you are working in a position/occupation that is inconsistent with the position/occupation in relation to which the visa was granted.”
[22] Affidavit of Yuille, exhibit pages 88, 90
That position or occupation was not disclosed. That requires the conclusion that the delegate had not found what actual position/occupation the applicant was performing.
Rather, the delegate has reached his conclusion because he has accepted that the applicant has not carried out the so-called specific responsibilities of the position of an Agricultural Technical Officer.
In my view, the failure to find what position or occupation the applicant was working in amounts to a failure to find a jurisdictional fact, and therefore constitutes jurisdictional error.
Condition 8107 requires a comparison between two positions or occupations, not a comparison between the ASCO criteria for different occupations. The comparison required to be made cannot be made if there is no finding of the occupation or position actually being done by the applicant.
It follows that the decision should be set aside.
However, even if one accepts the submission made on behalf of the Minister, the same result follows.
The delegate has not found that the applicant has carried out any tasks inconsistent with the position or occupation of an Agricultural Technical Officer. Rather the delegate has found that the applicant had not carried out “the specific responsibilities attached to the position of Agricultural Technical Officer”[23]. There seems to be an implicit assumption in the delegate’s decision making process (and indeed in the Minister’s submissions) that if a person is not carrying out the defined tasks of one occupation, he must necessarily be performing work in an occupation or position “inconsistent” with that first occupation or position. That does not necessarily follow. In his decision the delegate states, at section 9, where asked to set out the evidence of and reasons why grounds for cancellation exist[24]:
“- breach of condition 8107 – client admitted to not performing specific responsibilities relating to Agricultural Technical Officer which is the position nominated on his UC457 visa application.
Client stated that he had performed activities which are inconsistent with the activity in relation to which the visa was granted.”
[23] Affidavit of Yuille, exhibit page 90
[24] Ibid, page 91
In section 12 of the same document[25] the delegate has recorded that the applicant admitted performing low skilled work activities.
[25] Ibid, page 92
There is nothing in the departmental material as to whether there are specific responsibilities attached to the position of Agricultural Technical Officer. Counsel for the Minister produced a table showing a comparison between the classifications for Agricultural Technical Officer, Agricultural Scientist, General Farm Hand and Fruit, Vegetable or Nut Farm Hand. It will immediately be apparent that the position description of an Agricultural Technical Officer is not a prescriptive or confined one. It states “Tasks include . . .”. There is nothing to suggest that every Agricultural Technical Officer has to undertake each and every of the tasks adumbrated. There is nothing to suggest that Agricultural Technical Officers may not undertake different tasks to those listed, or in addition to those listed.
It is therefore incorrect to state, as the delegate has done, that there are “specific responsibilities relating to [the position/occupation] of Agricultural Technical Officer”.
Even if it were found[26] that the applicant was working as a farm hand, is that an occupation or position “inconsistent with” that of Agricultural Technical Officer? It is certainly a different occupational classification, but that does not automatically mean that the positions are inconsistent. If a sponsor employer is prepared to pay an employee the wage of an Agricultural Technical Officer to carry out general labouring duties, there may be good reasons for that.
[26] There was no such finding of what occupation or position the applicant was working in
Counsel for the Minister referred to the Macquarie Dictionary definition of “inconsistent”:
(1)Lacking in harmony between the different parts or elements; self-contradictory
(2)Lacking agreement, as one thing with another, or two or more things in relation to each other; at variance.
(3)Not consistent in principles, conduct, etc.
(4)Acting at variance with professed principles.
(5)Logic incompatible.
It does not follow that failure to perform all of the tasks of an Agricultural Technical Officer in ASCO means that an employee is carrying out an “inconsistent” as opposed to a “different” occupation or position. After all, the various position descriptions all are involved in agricultural work, at different levels of expertise. They may work side by side, and undertake complementary activities. That is hardly inconsistent.
I therefore conclude that if the delegate applied the test propounded by the Minister, he has erred in reaching the decision that he has.
Further, when one has regard to the actual evidence available to the delegate, one must question whether any reasonable decision maker could have reached the conclusion that he did.
First, in the Immigration Inspector’s report[27]:
[27]Affidavit of Yuille, Exhibits pages 114-121
a)He records that the applicant referred to the occupation for which his visa was granted as an agronomist[28];
[28]Ibid, page 114.9
b)He records the applicant telling him that he drove a truck on the farm and placed bananas into it, and he also bagged bananas[29];
c)He records that in subsequent questioning the applicant told him that he occasionally drove a cherry picker;
d)He records that before the first recorded interview with the applicant (at which time interpreter services were provided) the airline and detention services were notified to provide forewarning of their possible involvement;
e)He states[30] that questioning during the interview revealed that the applicant:
i)Performed other work as directed (this was menial work)
ii)Did not perform any technical work on the Howe Farm and had never done so in Australia
f)He states[31] that the applicant avoided a question relating to the farm owner ever asking him to perform any work as an agronomist and when asked again replied that he “bagged bananas”;
g)He states that he consulted with the airport manager at the end of the first interview and then prepared a Notice of Intention to Consider Cancellation.
[29]Ibid, page 115.5
[30] Ibid, page 117.4
[31]Ibid, page 117.6
Nowhere during the first interview did the applicant concede that he performed menial work. Nor was he asked, in those terms, whether he performed menial work.
In the first interview the applicant said:
In answer to the question “Is there any other duties that you perform on the farm?” – “I will do any work on the farm that the manager gives me. So, I do bagging and if there’s no fruit left there, then the manager tells us to do something else, so there’s any, you know, any work that, you know, on the farm that we have to do, I do”[32]
In answer to the question “Is there any specific technical work that you do at the farm?” – “I don’t really understand the question”
In answer to the question “So far you’ve described the type of work you do as manual labour. Is there any other technical work where you required, you are the only person that can perform that job, when you have any kind of certificate to perform particular types of work on that farm?” – “I did University in the Ukraine, Agronomist. So it is on a banana farm, because it’s treat bananas, so it’s part of my qualification” . . . “At Uni we studied all pesticides and chemicals, to treat the trees, and so honestly that’s part of my qualification”
“And do you perform any part of that work on the farm?” – “No, I’m qualified, but I don’t do it on the farm[33]
[32] Ibid, page 42
[33] ibid
The following exchange took place during the first interview:
“Just want to ask you: has the foreman, the person who owns the farm, Dennis Howe – has he um asked you to perform any type of work at all in relation to your qualifications, your diploma, as a agronomist. Has he asked you to perform any work at all, since your work for him?” – Of course I’m agronomist, I can do any work in that area that you would understand.”
“Yeah that’s fine. But you’re not answering the question I asked you. Has Dennis Howe ever asked you to perform any work in relation to you being a qualified as an agronomist? Have your performed any agronomy work for Dennis Howe?” – “Well, the thing is, my qualifications would include the bagging of bananas as well, and I really enjoy doing it.”
“OK. So, sorry, can I just confirm, you’re saying that the bagging of the bananas is specific to your qualifications that you’re talking about.” – “Yes, I work with tractors and with, you know, tractors overseas, overseas tractors, and Australian tractors, and with bananas too, I look at, you know, the stage the bananas are in, I look at them and bag them, so it’s all part of the profession.”
“OK. Is there any other point of work in relation to your qualification that you can tell me about, that you just – that you do?” – “There are jobs that I do, you know like ??? packing and protecting of trees, so I look at the trees, and see whether they’re growing correctly or not, and which leaves need to be cut off, so that’s all part of my qualifications. So all the leave are not growing properly, or not right, I can cut off. It’s all special and it’s all part of my qualification.”
“Anything else?” – Yeah, I can do anything, but at the moment I do bagging, so that’s why I enjoy this stage, because I enjoy it so much. Yeah, I really enjoy that work.”
“So I’ll just go back to what we were talking earlier and you were saying what type of work you do, and you were basically saying that the work you do is the bagging of bananas and the driving of the cherry picker and a tractor. Can we just recap on that? That’s the work that you do?” – “Yes, what I do; de-leafing, I walk up to the trees, and decide which leaves have to be cut off. But the cherry picker, or the tractor, I use for bagging the bananas or cutting the bananas.”
“Okay. So have you; since you’ve worked for Dennis Howe, have you performed any injections on the trees at all?” – “He asked me to repeat it, so I’ll repeat it again. Well I did do work as an agronomist in the Ukraine.”
“Okay. But since you’ve been over here, you haven’t worked as an agronomist, is that correct?” – I’m learning, or training here, as my first visa was a student visa.”
“Yeah, I’m not asking about your first visa. I’ll give you an opportunity to answer question this one more time. Either please answer it directly, and I won’t ask this question again, so I’ll ask you one final time. Since you’ve been here, have you performed any work as an agronomist?” – “I haven’t worked as an agronomist, but I’m learning.”
“Okay, okay. So you’re kind of, what you’re saying to me – can I just recap so I’ve got this really clear in my head – is that you are a qualified agronomist in the Ukraine and you are here in Australia, kind of learning the trade again in Australia, but you have not performed any of those tasks since you’ve come to Australia and worked for Dennis Howe.” – “Why not performing a task? I don’t understand why you say I’m not performing a task.”
Three things can be discerned from the parts of the interview just extracted:
a)The Minister’s delegate was questioning the applicant about whether he performed any work as an agronomist. It is not clear whether this was to establish that the applicant was performing work consistently with his visa (because the applicant described his own position as agronomist) or inconsistently with his visa (because of the different ASCO classifications of agronomist and agricultural technical officer);
b)The applicant maintained consistently that the work he was doing was within the scope of his training and qualifications; and
c)Nothing that the applicant said was inconsistent with him working as an Agricultural Technical Officer.
Then, during the interview the Minister’s delegate read to the applicant (through an interpreter) the ASCO list of tasks that can be performed by an Agricultural Technical Officer, at the conclusion of which he stated:
“Now, unfortunately that is the definition for the visa that you hold.
. . .
However, the visa that you currently hold is not appropriate for the type of work that you have been doing”
The applicant’s immediate response was:
“Why not? I’m an agronomist”
The delegate then said:
“I have just read out to you the definition, and you have not told me that you have performed any of those aspects of that job.”
So, rather than an admission that the applicant was performing inconsistent work, as was subsequently recorded in the Notice of Intention[34], the delegate at this point was apparently relying on the failure of the applicant to volunteer types of work performed by him that fell within the ASCO list as justifying a conclusion that the applicant was performing work inconsistent with that occupation or position.
[34] See footnote 22
It is obvious that the interview was controlled by the delegate. The applicant was reliant on an interpreter. He was confined in a room at the airport. He was never asked directly, other than in an open question about what tasks he performed in his work, whether he performed any of the listed tasks in the ASCO classification.
However, immediately the delegate made the statement at paragraph [53] the applicant said:
“Well, I’m working with trees and pesticides, to improve the growth of trees. I’ve studied it all at University.”
The delegate’s next statement was most intemperate:
“But the information you’ve given me says at no time – you stated earlier that you haven’t done any tasks in Australia as an agronomist. You stated that to me. So are you telling me now that is incorrect?
And again I remind you of the penalties relating to the false or misleading information to a commonwealth officer.”
There was no need for the delegate to make the intimidatory and threatening remark about penalties for false information. The delegate himself was in error. The applicant had stated that he had not worked in Australia as an agronomist, because he did not have the requisite qualifications[35]. In any event, the tasks that had been read out were not those under the classification of “agronomist” but rather those of “Agricultural Technical Officer”.
[35] Affidavit of Yuille, exhibits page 40
Shortly after this exchange, the delegate terminated the interview and subsequently served the Notice of Intention to Consider Cancellation of Visa. He did not give the applicant the opportunity to address each of the tasks which the delegate asserted he did not perform in the course of his employment.
Rather than admitting that he was performing work inconsistent with his visa condition, the applicant maintained to the contrary.
When one has regards to the possible grounds for cancellation[36] it can be seen:
a)The applicant never admitted that he worked as a tractor driver, banana bagger and occasional cherry picker operator. He did say that he performed these activities in the course of his employment, but never described his job as one of these activities;
b)As previously noted, there are no ‘specific responsibilities’ attached to the position of Agricultural Officer. There were typical duties or tasks listed in the ASCO classification but they were not expressed to be comprehensive or exclusive;
c)During the interview the applicant did not, in terms, expressly state that he performed any of the tasks read out, but nor was he expressly asked whether he did. Once he was challenged about the type of work he did, he immediately volunteered[37] an activity that squarely came within the listed tasks of an Agricultural Technical Officer.
[36] Affidavit of Yuille, exhibits page 90
[37] Ibid page 47
It was quite inappropriate for the delegate to misconstrue and mis-state the applicant’s evidence and record it as an admission, when it was no such thing.
The exchange also highlights the problems that have arisen because the delegate made no finding as to the position or occupation actually carried out by the applicant. Towards the end of the interview the delegate was pressing the applicant about performing work as an agronomist. Earlier in the interview, the questions seem to have been directed more towards obtaining evidence that the applicant was carrying out only menial work such as a farm hand. Without properly understanding what work the applicant was actually doing, the delegate could not have carried out the jurisdictional task for which he was responsible, of reaching a state of satisfaction regarding a potential breach of condition 8107.
In my view, the way in which the delegate has relied on admissions not made, and evidence not given, so as to misconstrue the critical evidence constitutes jurisdictional error. Also, as previously concluded, the delegate failed to ask himself the correct question:
a)By failing to find what position or occupation the applicant was performing and then to ask whether it was inconsistent with that for which the visa was granted; or
b)By failing to find what tasks the applicant was performing in his employment, and then to ask whether those tasks were inconsistent with the tasks of an agricultural technical officer. The question ought not to have been whether the applicant was carrying out the listed tasks of such a position in the ASCO classification.
The second ground of challenge raised by the applicant concerns the interpretation of his evidence. As discussed earlier I propose at this stage to deal only with the first limb of the applicant’s argument, namely that on its face the translation offered was so deficient that the applicant was effectively denied from putting his case.
Before turning to matters of interpretation, and the standard required, I should deal with a submission made on behalf of the Minister. By parity of reasoning with the decision of the Full Federal Court in SZMKG v Minister for Immigration and Citizenship[38] the Minister submits that Subdivision E provides a comprehensive procedural code in respect of the requirements of procedural fairness that must be accorded to visa holders.
[38] [2009] FCAFC 99 at [48] – [50]
I would be reluctant to hold that the failure to include in Subdivision E an express entitlement to interpretative services means that such services do not have to be provided. To the contrary, the requirement that certain information be given to the visa holder[39] and that the visa holder be given the opportunity to comment[40] to my mind carries with it the requirement that information by given to a visa holder in a form that he or she can understand, and the opportunity to comment be meaningful, so that the visa holder can communicate with the delegate. Therefore, in the absence of Full Court authority to the contrary I would decline to accept that the delegate was not obliged to provide the applicant with an interpreter if one was required.
[39] S. 120
[40] S. 121
Counsel for the Minister accepted that the relevant law as to the need for, and quality of, interpretation services so as to fulfil the obligation of procedural fairness was accurately summarised by me in BRGAQ of 2008 v Minister for Immigration and Citizenship[41]. In my view, on the face of the interviews, although there were occasions on which there were obvious language difficulties the applicant was given a real and meaningful opportunity to participate in the interview, and to communicate his case. The difficulties arose not so much from translation difficulties but rather because of the incompetent manner in which the interview with the applicant was conducted. The applicant was able to answer questions asked, and the substance of his answer was communicated. The real difficulty is that the correct questions were not asked, or misleading questions were asked.
[41] [2009] FMCA 782 at [80] – [85]
The second ground of challenge fails.
Although not raised as grounds of challenge I would like to address two additional matters.
During his interviews, the applicant twice requested that the delegate contact his employer to clarify the applicant’s position[42].
[42] Affidavit of Yuille, exhibits pages 45- 46, 55
The Court invited submissions from the parties as to whether the delegate’s failure to make enquiry of the applicant’s employer constituted jurisdictional error[43].
[43] Reference was made to Minister v SZIAI [2009] HCA 39.
In Minister for Immigration and Citizenship v SZIAI[44] the High Court dealt with the circumstances in which a failure to inquire might constitute jurisdictional error. The Court reinforced the notion that there is no general duty to inquire, despite the inquisitorial function of Tribunals such as the Migration Review Tribunal and Refugee Review Tribunal[45]. At [25] the majority Justices said:
“Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case.”
[44] [2009] HCA 39
[45] At [2], [10], [19]
In my view, the failure to make an inquiry of the applicant’s employer as to the position in which the applicant was employed, or the tasks carried out by him in his employment, was a failure to make an inquiry about a critical fact, and the failure to do so supports a conclusion of jurisdictional error. The failure to enquire is made more inexplicable by the fact that the delegate in fact contacted the employer on the day of the interviews[46]. The applicant’s employer asked questions, but was told the case could not be discussed with him. Mr Howe has sworn an affidavit that is supportive of the applicant’s position.
[46] Affidavit of Yuille, exhibits page 121
Secondly, real doubt must surround the adequacy of the time given to the applicant to provide his response to the Notice of Intention to Cancel his visa. He was given 10 minutes to respond. The applicant stated that he did not need time to respond[47]. However, he had been kept at the airport for a large part of the day, and he needed an interpreter.
[47] Ibid page 54
In Yusuf v MIC[48]at [14] – [15] Spender J said
“14 In each case, the Minister is required to give a prescribed period or a reasonable time within which to respond: s 121(2), (3) Regulation 2.44of the Migration Regulations 1994 (Cth) ("the Regulations") deals with the time in which a holder must give comments, other than at interview, and prescribes five days as the time for responding to the notice. Under s 124, the decision by the Minister is not to be made until after the holder has responded or the time for responding to the notice passes.
15 In the light of these provisions, it is in my opinion ludicrous to contend that ten minutes prior notice for a response is either fair or reasonable. It is particularly so here, in what was essentially a "set-up", where the decision to cancel had been made prior to the interview, and the procedures that followed were, in my opinion, nothing but a charade to give a veneer of respectability to an egregious departure from fair process. “
[48] [2002] FCA 1103
However, in Le v MIC[49]Cameron FM said:
“The determination of what period would be reasonable to allow a visa holder to comment on material set out in a notice of intention to consider cancellation (“NOICC”) is a matter for the Court to determine based on an assessment of the evidence of the surrounding circumstances. In this regard, I respectfully adopt what Kenny J said in Zhaou v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 748 at [78]:
… what is a reasonable period for the purposes of s.121(3)(b) of the Act would fall to be considered in light of all the circumstances of the case as they existed when the time of the interview is fixed. These circumstances may include the nature of the cancellation grounds that the decision-maker is considering, the personal attributes of the visa holder (i.e., age, facility in the English language, physical infirmity or well-being), the presence of an interpreter or lawyer, the visa holder’s familiarity with the matters of concern to the decision-maker, the circumstances in which the decision falls to be made, and the availability of matters corroborative of the applicant. Regard would also be taken of the statutory context and purpose of s.121(3)(b) of the Act.”
[49] [2008] FMCA 1497
In my view, having regard to what had transpired during the course of the day, and the need for an interpreter, allowing the applicant
10 minutes within which to formulate his response was both unreasonable and unfair.
However, as this point was not the subject of express argument, I will not elaborate further. I raise the matter simply to highlight another unfortunate feature of the wholly unsatisfactory process to which the applicant was subjected.
The decision of the Minister’s delegate must be set aside. The applicant should be forthwith released from immigration detention.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 22 January 2010