NBDY v Minister for Immigration - [2004] FMCA 658

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBDY & ANOR v MINISTER FOR IMMIGRATION

[2004] FMCA 658

MIGRATION – Review of decision to affirm decision to cancel Student (Temporary) (Class TU) visa – no jurisdictional error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.101, 103, 109

Migration Regulations 1994, reg 2.41

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Jasbeer Singh v Minister for Immigration & Ethnic Affairs (unreported 6 December 1994 Sackville J)
Tarasovski v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 570, 572-573
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Briginshaw v Briginshaw (1938) 60 CLR 336

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Linett v McIntyre (2002) 117 FCR 189 (FC)
Minister for Immigration & Ethnic Affairs v Baker (1997) 73 FCR 187
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
Kai Feng Shu & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 791

Applicants:

NBDY & NBDZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Nos:

SZ 1849 / SZ 1848 of 2004

Delivered on:

11 November 2004

Delivered at:

Sydney

Hearing date:

13 September 2004

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicant:

Mr G Kennett

Solicitor for the Applicant:

Christopher Levingston & Associates

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application fixed in the amount of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1848 / SZ 1849 of 2004

NBDY & NBDZ

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This judgment arises from separate applications filed on 19 April 2004 seeking judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 24 March 2004. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the delegate”) to cancel the applicants’ Refugee and Humanitarian (Migrant) (Class BA) visas.

The history

Applicant NBDZ and his wife and their daughter applicant NBDY claimed they were refugees of Country C who had fled during a conflict situation to Country B and feared persecution so could not return. Applicant NBDZ and his wife applied for Refugee and Humanitarian (Migrant) (Class BA) visas in Country B on 4 October 1999. Applicant NBDY made a separate application on the same day. The arguments in both cases were essentially the same and the cases were heard before me together.
Applicants NBDY and NBDZ (“the applicants”) claimed they suffered persecution for reasons of religion, nationality, membership of a social group, political opinion and because they were hated for being a family who valued peace and tolerance. The applicants gave a detailed description of the persecution they claimed to suffer in Country C and claims about their treatment by the Country C police. They claimed they had been held in gaol against their will and without charge for a number of days in July 1991.
The applicants provided various documents with their visa applications including documents claimed to be police reports indicating their arrest and detention in July 1991. The written statement of applicant NBDZ was on Organisation G letterhead.
The applicants were granted Subclass 200 (Refugee) visas on 21 February 2000 and entered Australia on those visas on 23 March 2000.
On 31 December 1999, prior to the grant of the visas, the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) received information about the applicants’ involvement with Mr X and Organisation G in manipulating refugees and lodging false visa applications. Information alleged that applicant NBDZ worked for Organisation K, arranging for the return of people of Ethnicity H to Country C. It was suggested that the applicants had lied on their applications to the Australian Embassy so they would not be rejected. No action appeared to have been taken on this information at the time.
An officer of the Department in City A analysed the case files of applicants NBDZ and NBDY on 3 January 2002 and 4 January 2002 respectively. The officer concluded that the documents enclosed with the visa applications were fraudulent and were those commonly presented with applications lodged through Organisation G. It was also claimed that the applicants’ accounts of events were inconsistent with general and specific circumstances at the time they claimed took place.
On 8 January 2002 the Department requested from Country C authorities information about the veracity of documents lodged with the visa applications. On 11 January 2002 Country C police orally informed the Department that the document reference numbers were ‘unusual’ and that such certificates could be issued only by the Ministry of Justice of the court and not the police authorities.
Applicant NBDZ and his wife applied for Australian citizenship on

25 March 2002.
On 26 March 2002 the Country C Ministry of Foreign Affairs informed the Department that:
a)The registration numbers on the documents provided by the applicants do not belong to the Police Administration of Town D nor was there any record on the decision to detain the applicants.
b)The Police Administration in Town E has never used the registration numbers on the documents provided with the application. It was also noted that the documents used the name Country I but at the time the name Country J was being used.
c)The stamp number 2 used on the documents was generally used for general and common administrative services.
d)The Police Administration in Town E does not have any records of official action undertaken in connection with the applicants.
On 9 January 2003 the applicants were issued with a Notice of Intention to Consider Cancellation under s.109 of the Migration Act 1958 (“the Act”) for suspected non-compliance with ss.101 and 103 of the Act because it appeared they had failed to provide correct information on their application forms and had provided bogus documentation.
On 2 February 2003 the applicants each provided a written response to the Notice with supporting documentation (NBDY Court Book pp.102-126 and NBDZ Court Book pp.31-68) (“CB”). The applicants denied that incorrect answers or bogus documents had been given in their visa applications and stated that all questions were answered to the best of their knowledge.

The delegate’s decision

The delegate requested a reassessment of protection claims by the applicants by the Department’s Onshore Protection Unit. On 1 April 2003 the Unit found that the applicants were not persons to whom Australia has protection obligations under the Refugees Convention.
On 5 May 2003 the delegate cancelled the applicants’ Subclass 200 visas pursuant to s.109 of the Act. The delegate found that the applicants had not complied with ss.101 and 103 of the Act by stating in their visa applications, and providing documents in support of the claim, that they had been detained by Country C authorities.
On 22 May 2003 the applicants applied to the Tribunal for review of the delegate’s decision.

The Tribunal’s decision and reasoning

On 15 August 2003 the Tribunal wrote to the applicants inviting them to comment on the information the Tribunal considered would be the reason or part of the reason for confirming the decision under review. The applicants provided comments in the form of a statutory declaration (NBDY CB pp.170-184 and NBDZ CB pp.117-130). The applicants’ representative provided further submissions in support of the applications (NBDY CB pp.193-195 and NBDZ CB pp.136-199).
The applicants attended the hearing on 13 November 2003 and gave evidence (NBDY CB pp.207-208 and NBDZ CB pp.232-233). The applicants’ representative was also present.
In relation to applicant NBDZ, the Tribunal found that he had not breached s.101 of the Act with regard to the non disclosure on his application of his occupations both paid and unpaid.
However the Tribunal found that the applicants had given incorrect information when making their claims to be accepted as a refugee. The Tribunal found that the information submitted by the applicants in relation to their claim to have been arrested and detained was not correct and that the documents submitted in support of their claims were false documents. The Tribunal accepted the information provided by the government of Country C that these documents were not issued under its authority by the police. The applicants were not able to provide to the Tribunal an explanation or obtain other documents substantiating their arrest. Accordingly, the Tribunal placed greater weight on the official information that the documents were not issued under authority and that furthermore they contained irregularities that suggested they were bogus.
In addition, the Tribunal was not satisfied that the applicants’ explanation and account of their journey was an accurate account and explanation of these events. The Tribunal did not find the applicants credible witnesses in their explanation of the journey and the incidents that occurred.
On the basis of all the information before it the Tribunal found that the applicants provided incorrect information concerning their claims of detention by the police of Country C and that they submitted bogus documents in relation to that claim.
In relation to applicant NBDY, the Tribunal made no finding on the claims that she assisted Mr X and Organisation G in making translations of documents that may have been documents lodged in support of false claims. It did however note that a submission from the Australian Embassy referred to information that false documents were being submitted in support of refugee claims made with the assistance of Organisation G.
It followed that the Tribunal found that the applicants had not complied with ss.101 and 103 of the Act regarding their claim to have been arrested and detained before being released without charge. The Tribunal had regard to the prescribed circumstances in regulation 2.41 of the Migration Regulations 1994 (Cth). The Tribunal’s findings in relation to these prescribed circumstances were outlined as follows:
a)The correct information;
The correct information was that the applicants were not arrested and detained for several days in the circumstances which they described. The documents submitted as an official record and proof of their detention were described by the relevant authority as not issued by it and as bogus documents.
b)The content of the genuine documents (if any);
The documents in question were not issued by the stated issuing authority.
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;
The applicants were granted Subclass 200 visas on the basis of the evidence they provided to the Department. The evidence included claimed official police documents, provided as part of their visa applications, which the authorities of Country C stated were fraudulent. The delegate submitted to the Department that had the correct information been known it was highly likely that the visa would not have been granted as the applicants would not have had credible claims to persecution in Country C.
d)The circumstances in which the non-compliance occurred;
Country C authorities have subsequently informed the Department that the documents provided as part of the applications for Subclass 200 visas were fraudulent and there is no record of the applicants’ imprisonment.
e)The present circumstances of the visa holder;
Applicant NBDY is currently a student. She joined a multicultural group representing all ethnic groups from Country B. She claimed to suffer from depression from her experiences in the war and provided a medical certificate as evidence of those claims. She stated her brother lives in Germany and she had returned to visit Country B but not Country C.
Applicant NBDZ stated that he has tried to assimilate into the community in Australia. He listed various ways in which he was establishing himself in Australia and provided statements in support of his character. He provided evidence relating to his experience as a new migrant. At the time of the cancellation of the visa he appeared to be receiving a disability pension and to have been suffering from post-traumatic stress disorder. Applicant NBDZ gave evidence that he is receiving a pension from Country C, which is collected by his brother.
The applicants were reassessed by the Department with regard to Australia’s protection obligations towards them. Those assessments found that the applicants were not persons to whom Australians had protection obligations under the Refugees Convention. It found that they would not be at risk of harm amounting to persecution for a Convention reason if they were returned to Country C. In addition, it found that applicant NBDY would be likely to be eligible for citizenship of Country B.
f)The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision 3 of Part 2 of the Act;
Other than a reference and statement in support of applicant NBDY by Mr X in response to the Notice, who himself is alleged to have assisted in the production of false documents to support refugee claims, there was no adverse information before the Tribunal about the subsequent behaviour of the applicants concerning their obligations under Subdivision 3 of Part 2 of the Act.
g)Any other instances of non-compliance by the visa holder known to the Minister;
There was no evidence to suggest the applicants had ever failed to comply with the Act and the Regulations in any other circumstance.
h)The time that has elapsed since the non-compliance;
The non-compliance took place at the time of application for the visas, being 4 October 1999. The applicants were granted Subclass 200 visas on 21 February 2000 and entered Australia on those visas on 23 March 2000.
j)Any breaches of law since the non-compliance and the seriousness of those breaches;
There was no evidence to suggest the applicants had breached any laws since the time of the alleged non-compliance.
k)Any contribution made by the holder to the community;
The applicants indicated and provided evidence that they are members of a community organisation for refugees from their region of origin. Applicant NBDY provided evidence of success in her academic endeavours and studies. Applicant NBDZ provided evidence he is considered a person of good character by members of the community.
After considering all the circumstances of each case and its findings as outlined above, the Tribunal found that the reasons for cancelling the visa outweighed the reasons for not cancelling it.
In relation to applicant NBDY, the Tribunal noted that she settled in City A for five years before making her application and continued her studies at the University there where she was enrolled before the family were forced from their home. It also noted that applicant NBDY was married at the time she lodged the application. It further noted there is evidence that she actively assisted other people making applications for refugee visas.
The Tribunal noted that there was evidence of the applicants’ extended family living in Country C and it considered that they could assist the applicants if they were to return there. The Tribunal also noted that applicant NBDZ’s wife (who is also applicant NBDY’s mother) is of ethnicity F and there was information available to it that people of this nationality have returned to Country C and rebuilt their lives there.
The Tribunal considered the seriousness of applicant NBDZ’s actions, and applicant NBDY’s reliance on these actions, in submitting incorrect information and documents about their refugee claims to be of a greater magnitude than other considerations.
On the basis of the material before it, the Tribunal found the correct decision was to affirm the decision of the delegate. On 24 March 2004 the Tribunal affirmed the decision under review to cancel applicant NBDZ and his wife and their daughter applicant NBDY’s Refugee and Humanitarian (Migrant) (Class BA) visas.

The application for review of the Tribunal’s decision

On 19 April 2004 the applicants filed separate applications, and on 6 September 2004 separate amended applications, pursuant to s.39B of the Judiciary Act 1903 (Cth), seeking judicial review of the decision of the Tribunal. The amended applications appeared to be identical and contained the following grounds:
1.“The Tribunal exceeded its jurisdiction by purporting to affirm the cancellation of the Applicant’s visa under subsection 109(1) of the Migration Act 1958 (‘the Act’) without having made the decision required by subsection 109(1)(a).
Particulars
1.1The Tribunal applied the wrong test, or asked itself the wrong question, by applying an incorrect standard of proof to the question whether the Applicant had failed to comply with sections 101 and 103 of the Act.
2.The Tribunal exceeded its jurisdiction by purporting to affirm the cancellation of the Applicant’s visa under subsection 109(1) of the Act without having taken into account the “prescribed circumstances” as required by subsection 109(1)(c).
Particulars
2.1In addressing the “circumstances” referred to in regulations 2.41(c), (d), (e), (h) and (k) of the Migration Regulations 1994, the Tribunal failed to:
(i)reach its own conclusions of fact as to what the relevant circumstances were; and
(ii)reach a conclusion as to how those circumstances affected the issue which it had to decide.”

The law

The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

Mr G Kennett of Counsel representing the applicants filed written submissions. It was submitted that the discretion to cancel a visa under s.109(1) of the Migration Regulations of the Act arises “after” the Minister has done the things referred to in paras (a)-(c) of that subsection. The first of those is “deciding under s.108 that there was non-compliance by the holder of [the] visa”. The decision to be made under s.108 is a decision “whether there was non-compliance by the visa holder in the way described in the notice”. (The “notice” is a notice issued under s.107, which may be issued if the Minister considers that a visa holder “did not comply with section 101, 102, 103, 104 or 105”. Among other things, such a notice includes “particulars of the possible non-compliance” (s.107(1)(a)).)

Counsel for the applicants submitted that the Tribunal referred to the Federal Court decisions holding that, in reaching that decision, the onus of proving falsity lies on the Minister and the standard of proof involves a “high degree of satisfaction”: Jasbeer Singh v Minister for Immigration & Ethnic Affairs at [14]-[16]; Tarasovski v Minister for Immigration, Local Government & Ethnic Affairs.
It was also submitted that in reaching its decision on non-compliance, the Tribunal however did not apply such a standard.
a)As to the genuineness of the documents in each case, the Tribunal relied on information provided by the authorities of Country C. The Tribunal referred to arguments and further documents put forward by the applicants, but did not deal with these except to note that the documents were not “directly relevant” to the case. In the end it simply gave “greater weight” to the official information from Country C (Court Book NBDY p.209 [58][59], Court Book NBDZ p.235 [72]).
b)As to the truth of the applicants’ claims, the Tribunal set out the difficulties which it had with the credibility of the applicants (Court Book NBDY p.209 [60, Court Book NBDZ p.235 [73]).but was not able to refer to any material positively contradicting their claims (except for “evidence”, referred to but not explicitly adopted, that the route they claimed to have taken was not the most direct one). Rather than considering whether it was satisfied (to a “high degree”) that the applicants’ claims had been false, the Tribunal proceeded on the basis that the applicants had to establish that those claims were true.
Counsel submitted that the Tribunal thereby applied a wrong test, or asked itself the wrong question, in purporting to make the decision required by s.108. A decision in accordance with s.108 was a prerequisite to the existence of power under s.109(1): SHJB v Minister for Immigration & Multicultural & Indigenous Affairs at [17]. The Tribunal thus exceeded its jurisdiction by purporting to affirm the cancellation of the visa in each case.
It was also submitted that another prerequisite to the existence of power under s.109(1) was that the Tribunal had “taken into account” any “prescribed circumstances”. For that purpose, ten “circumstances” are prescribed by reg 2.41. In each of the decisions under review, the Tribunal set out these circumstances and made some observations about each of them. However, in several respects, what the Tribunal did not amount to “taking into account” the relevant “circumstance”. Given its ordinary meaning, a duty to “take into account” particular “circumstances” involves:
a)reaching conclusions of fact as to what the relevant circumstances are or were;
b)forming a view as to how those circumstances bear upon the decision to be made, and what weight to give them; and
c)at each stage, exercising independent judgment.
Counsel for the applicants contented that reg 2.41(c) required the Tribunal to take into account the likely effect that the “correct information” or the “genuine document” would have had on the decision whether to grant visas to the applicants. The minute from the officer of the Department in City A, referred to above, had expressed the view that the visas would probably not have been granted if the version of events which he now regarded as correct had been known at the time (NBDZ CB p.20). That opinion (which had been endorsed by the delegate in cancelling the visas) (NBDY CB pp.159-160, NBDZ CB p.99), was accepted by the Tribunal without comment or analysis (NBDY CB p.210 [65(c)], NBDZ CB p.236 [77(c)]).
Counsel for the applicants further argued that the Tribunal was entitled to agree with the assessment of the officer of the Department in City A, but was under a duty to exercise its own judgment before reaching that conclusion. It was submitted by Counsel that the Tribunal’s reasons indicated that it did not do so and that is evident from the absence of any discussion of two factors:
a)The Tribunal did not refer to the criteria for the grant of a subclass 200 visa in order to form a view as to what the applicants’ prospects of meeting those criteria would have been if their claim of arrest and detention was false. While it did express the view that this claim was “crucial” to their claims to be refugees (NBDY CB p.209 [61], NBDZ CB p.235 [73]). it did not engage in any analysis of whether other hardships suffered by the applicants could be regarded as “persecution” for relevant purposes or whether the view might have been taken that they would face future “persecution” if forced to return to Country C.
b)The Tribunal did not advert to the difference between its factual findings and those of the overseas DIMIA officer. The officer was proceeding on the basis that false information had been provided in relation to both the claim of arrest and applicant NBDZ’s employment status; yet the Tribunal found that there had not been non-compliance in relation to the latter issue.
It was submitted by Counsel for the applicants that each of the paragraphs of reg 2.41 refers to a matter which, clearly enough, the legislator intended to be weighed in the balance when deciding whether a visa ought to be cancelled or not. In some cases the significance is obvious (e.g. para (g), any other instances of non-compliance). In others, it was submitted, the significance of the factor will depend on the circumstances of the case. Paragraphs (d), (e), (h) and (k) were given as examples. It was submitted that the proper consideration of these factors required the Tribunal to form a view about what the particular “circumstances” were, and how they bore upon the issue for decision and that it did not do so. Counsel for the applicants submitted:
·Paragraph (d) clearly calls for consideration of the situation facing the visa holder at the time of the relevant non-compliance, with a view to identifying any factors that make that non-compliance more or less blameworthy. It is not satisfied by a repetition of findings as to the nature of the non-compliance (NBDY CB p.210 [65(d)], NBDZ CB pp.236-237 [77(c)]).
·Paragraph (e) is clearly directed at identifying aspects of the visa holder’s current situation which have a bearing on whether cancellation is a justifiable response to the earlier non-compliance: e.g. his or her age and health, family support in Australia and other countries, ability to live safely in a country other than Australia. It requires a decision maker to identify the circumstances thought to be relevant, and how they bear on the decision. The Tribunal merely recited some of the statements that had been made to it about the applicants’ circumstances (NBDY CB p.211 [65(e)], NBDZ CB p.237 [77(e)]).
·The lapse of time since the relevant non-compliance (para (h)), and any contribution that the visa holder has made to the Australian community (para (k)), will normally be considerations which weigh against cancelling the visa. Their inclusion in reg 2.41 requires the decision maker to reach specific conclusions about how much weight they are to be given. The Tribunal did not reach any such conclusions. As to para (h), it simply restated some relevant dates (NBDY CB p.211 [65(h)], NBDZ CB p.237 [77(h)]). As to para (k), it contented itself with reciting some of the evidence given to it (Court Book NBDY p.211 [65(k)], Court Book NBDZ p.237 [77(k)]).
Mr T Reilly, Counsel representing the respondent, filed written submissions in response to the two grounds pleaded in the amended application. The first ground was that the Tribunal applied the wrong standard of proof. Counsel for the respondent submitted that this was not a fair reading of the Tribunal’s reasons, contrary to Minister for Immigration & Ethnic Affairs v Wu Shan Liang at 271-272, 291. It was submitted that the Tribunal referred to relevant authority that the onus of proof that the applicant had made false statements lay on the Minister, and that a high degree of persuasion is required in cases of this nature (NBDZ CB p.234 [68]). It was submitted, as is clear from Tarasovskiv Minister for Immigration, Local Government & Ethnic Affairs per Wilcox J at 570-571, this latter statement is an application of Briginshaw v Briginshaw, and was not directed to the standard of proof: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (“Neat Holdings”) at 450.
Counsel for the respondent also submitted that, given the clear acknowledgment by the Tribunal that a high degree of satisfaction was required, there was no basis whatsoever to suggest that the Tribunal nevertheless did not in fact apply such a degree of satisfaction in making its decision: Neat Holdings. It was submitted that the Tribunal’s reasons indicated that it gave the applicant the benefit of the doubt when considered appropriate (NBDZ CB p.234-235 [70]). It was entitled to give greater weight to official information from Country C in preference to that of the applicant when considering whether documents he submitted in support of his claims to have been arrested in 1991 were false (NBDZ CB p.235 [72]). The attribution of weight to evidence before it is a factual matter for the Tribunal indicating no jurisdictional error: Linett v McIntyre. It was submitted that nothing in this reasoning indicates a failure to apply a high degree of satisfaction to the evidence before it, or reverses the onus of proof as the applicant’s submissions appear to claim. Counsel for the respondent argued that this ground was not made out.
It was submitted by Counsel for the respondent that the applicant’s second ground is that the Tribunal failed to “have regard” to the prescribed circumstances in reg 2.41 of the Migration Regulations as required by s.109(1)(c) of the Act (this does not of course require it to confine its consideration to those matters: Minister for Immigration & Ethnic Affairs v Baker at 194). It was submitted that, again, this claim flies in the face of the Tribunal’s explicit consideration of each of those circumstances at (NBDZ CB p.236-237), and again indicates a failure to read the Tribunal’s reasons fairly.
The applicant’s claimed that the Tribunal failed to “have regard” to reg 2.41(c), because it agreed with the assessment of the delegate that the visa would not have been granted if the applicant had not made false claims to have been arrested and detained in 1991 (NBDZ CB 236 [77]). Counsel for the respondent submitted that the Tribunal’s agreement with the delegate on this issue does not indicate a lack of independent consideration of the matter. There was nothing before it to suggest that the visa would have had any prospect of being granted in the absence of the applicant’s central claim to have been persecuted in the past, and common sense indicates to the contrary. Counsel stated that the Act does not require the elaborate analysis proposed in the applicant’s submissions, especially in circumstances where there was no argument before the Tribunal to suggest that the visas would or could have been granted despite the applicant’s false claims.
Similarly, it was submitted, there is no basis to suggest that the Tribunal did not “have regard” to regs.2.41(d), (e), (h) and (k). The applicant’s submissions criticise the Tribunal’s use of its previous findings when considering these matters, and again propose a more elaborate analysis. Counsel stated that none of the matters raised by the applicant indicate that the Tribunal did not, as it states, “have regard” to the prescribed circumstances. That more can always be said on any issue hardly indicates that regard has not been given to it, especially when it is not suggested that any specific matters put forward by the applicant were not addressed. To construe the requirement to “have regard” to prescribed matters in s.109(1)(c) as requiring in effect a full set of reasons on each prescribed matter, setting out findings of fact and referring to the evidence on which the findings are based is contrary to the Act. Section 368 requires that the Tribunal give reasons for its decision, not a sub-set of reasons for each matter it must have regard to cf: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham per McHugh J at [67]. Counsel for the respondent submitted that this ground was not made out.

Conclusion

Ground 1 in the application for review suggests the Tribunal exceeded its jurisdiction by purporting to affirm the cancellation of the applicant’s visa under s.109(1) without having regard to the requirements of s.109(1)(a). The grounds of cancellation are set out in the Tribunal’s decision under the heading of “Findings and Reasons”, sub-heading “Grounds for Cancellation” (NBDZ CB pp.234-238 [63]-[78], NBDY CB pp.208-212 [51]-[69]). The most serious of these concerns relates to the alleged arrest and detention for several days of the applicants while driving to City Z via Town O in 1991. They claim to have been arrested and taken to Town D. The applicants submitted documents purporting to be official records of their detention and release without charge issued by the police in those towns. In the decision of Kai Feng Shu & Ors v Minister for Immigration & Multicultural & Indigenous Affairs, Emmett J considers at [35] the distinction between a bogus document, being one that has been counterfeited or has been altered, as opposed to a document that is false and misleading:
“I am not satisfied that the decision maker turned his mind to the correct question that is contemplated by s.103. That is to say, I am not satisfied that the decision maker embarked upon a determination of the question that s.103 poses. Section 103 provides that, in effect, the applicant should not have given the Minister’s delegate a document that is counterfeit or has been altered.”
His Honour continues at [37]:
“Identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material results in the decision maker exceeding the authority or powers given by the relevant statute. If an error of those types is made, the decision maker did not have the authority to make the decision that was made. The decision maker simply does not have jurisdiction to make the decision in those circumstances: see Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351 and Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 at 45 [76]-[78].”
Having identified the documents in relation to the alleged arrest and detention, the Tribunal member then analyses those documents against the provisions of reg 2.41 of the Migration Regulations 1994. The four major defects in the documents are listed in paragraph 10 above.
The delegate found that applicant NBDZ had breached s.101 with respect to the non-disclosure of his occupations both paid and unpaid. However as stated above at paragraph 18, the Tribunal disagreed with this finding (NBDZ CB p235 [70]). I am satisfied that the Tribunal has demonstrated that it has given the case the appropriate amount of consideration and discharged it’s fundamental duty of reviewing the delegate’s decision according to the merits of the case. The finding however does not affect the outcome of the case. Although the Tribunal reversed the delegate’s finding that applicant NBDZ had breached s.101 of the Act in respect of the non-disclosure, it affirmed the delegate’s finding that the applicants did not comply with ss.101 and 103 of the Act in respect of his claims of their detention and submission of bogus documents in relation to that claim (NBDY CB p.210 [64], NBDZ CB p.236 [75]). In respect of ground 1 I am satisfied that the Tribunal did not exceed its jurisdiction when affirming the cancellation of the applicants’ visas.
In respect of ground 2, Counsel for the applicants claimed that the Tribunal exceeded its jurisdiction by not taking into account the “prescribed circumstances” as required by s.109(1)(c). Both Counsel have taken me through a detailed examination of the provisions of the Act and the related regulations. This has involved a detailed examination of the Tribunal’s reasoning for each regulation and these are summarised above. The resolution of this issue hinges on the words “having regard to” and whether the Tribunal gave sufficient attention or emphasis to this requirement as it analysed each of the regulation items. It ultimately depends on whether there was a gloss on “having regard to”. I was also directed to the wording of item (c) of reg 2.41 where the assessing officer was required to have regard to “the likely effect”. After reviewing the decision in its entirety, I am satisfied that the Tribunal discharged its obligation in respect of the criteria set out in reg 2.41 and in effect did take into account the “prescribed circumstances” as required in s.109(1)(c).
I am satisfied that the degree of specificity in the Tribunal reasons is sufficient and that there have been no issues ignored. The treatment of these issues in the published reasons can be brief and they do not require extensive or sub-sets of reasons: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham per McHugh J at [67]. In respect of ground 2, I am satisfied that the Tribunal did not exceed its jurisdiction when affirming the cancellation of the applicant’s visa.
I have not been able to identify a jurisdictional error in either of the grounds pleaded by the applicant. The applicant’s claim should be dismissed.
I am satisfied for costs should be made in this matter. I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: Lyndall Yee

Date: 11 November 2004