Semaan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 709

FEDERAL CIRCUIT COURT OF AUSTRALIA

Semaan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 709  

File number:	SYG 575 of 2019
Judgment of:	JUDGE STREET
Date of judgment:	12 April 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – application for a Skilled Designated Area – Sponsored Overseas Student (subclass 882) visa – whether the Tribunal misapplied the law to the facts – whether the Tribunal failed to treat the best interests of the children as a primary criteria – whether the Tribunal applied the wrong test – whether the tribunal based its decision on facts that did not exist – no jurisdictional error made out – further amended application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 99, 102, 104, 105, 107, 476
Number of paragraphs:	36
Date of hearing:	12 April 2021
Place:	Sydney
Solicitor for the Applicant:	Mr R Turner, Turner Coulson Immigration Lawyers
Counsel for the First Respondent:	Mr N Swan
Solicitor for the First Respondent:	Sparke Helmore

ORDERS

SYG 575 of 2019

BETWEEN:

JEAN SEMAAN

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	12 APRIL 2021

THE COURT ORDERS THAT:

1.The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2.Leave is granted to the applicant to rely upon the further amended application annexed to the submissions filed on 29 March 2021 on the basis that a completed copy in that form is file and served on or before 14 April 2021.

3.The further amended application is dismissed.

4.The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 8 February 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) to cancel the applicant’s Skilled Designated Area – Sponsored Overseas Student (subclass 882) visa (“the Visa”).

2. The applicant was given a Notice of Intention to Consider Cancellation of the Visa (“the Notice”) on 14 June 2018. That Notice referred to incorrect answers on the applicant’s passenger card under s 102 of the Act as well as a noncompliance with s 104 of the Act. 

3. On the 17th of July 2018, the Delegate found that the Visa should be cancelled. The applicant applied for review on 17 July 2018. The applicant was invited to and attended a hearing before the Tribunal which took place on 14 January 2019. 

4. On 24 January 2019, the Tribunal wrote to the applicant referring expressly to his Incoming Passenger Card (“IPC”) dated 18 August 2014 and referring to the applicant having ticked “no” in response to the question of whether he had any criminal convictions. The letter noted that:

   The card shows that you may have initially ticked “yes” but crossed it out, which may suggest that you provided an incorrect answer deliberately.

5. The letter gave the applicant an opportunity to respond in respect of that incorrect information and the noncompliance with s 102 of the Act. 

6. The Tribunal in its reasons identified the background to the review application and set out the relevant law in relation to the s 107 notice and the cancellation power under s 109 of the Act. 

7. The Tribunal found that the Notice complied with the requirements of s 107 of the Act and turned to determine whether there was noncompliance in accordance with s 107 as identified in the Notice in respect of s 107.

8. The Tribunal identified that the noncompliance raised was with both s 102 and s 104 of the Act. The Tribunal also identified in that regard that the applicant, when he had made the Visa application on 14 March 2007, had provided information referable to having no convictions at that time so far as concerns the obligation arising under s 104 of the Act.

9. The Tribunal referred to the IPC dated 18 August 2014 and the applicant’s response which said “no”. The Tribunal expressly referred to the applicant’s contentions that he made a mistake because he had been travelling for a long time. 

10. The Tribunal noted that the applicant conceded that he did not inform Immigration about his conviction before he was granted a visa and also did not mention the conviction in the IPC. The Tribunal found that the applicant appears to have accepted that the breach occurred, contrary to the arguments advanced by Mr Turner based on s 99 of the Act.

11. The Tribunal identified what occurred at the hearing. The Tribunal found that the applicant had not informed an officer in writing of the new circumstances following the conviction in 2012 and of the correct answer. The Tribunal found the applicant did not comply with s 104 of the Act.

12. The Tribunal referred to the IPC but found that the applicant filled in the IPC in a way that an incorrect answer was given and found the applicant did not comply with s102 of the Act as well as s 104 of the Act.

13. The Tribunal found there was noncompliance with ss 102 and 104 of the Act by the applicant in the way described in the s 107 notice.

14. The Tribunal then turned to consider whether or not the Visa should be cancelled. 

15. The Tribunal’s reasons reflect a genuine intellectual engagement with the arguments advanced by the applicant, including the arguments advanced in relation to his sister’s children, and expressly referred to taking into account the best interests of the children and that they would be adversely affected as a result of the cancellation if the applicant has to depart Australia.

16. The Tribunal expressly took into account the fact that the children are in the care of their parents, both of whom reside in Australia, and that the parental care will be unaffected by the cancellation. It was in those circumstances the Tribunal found that the applicant’s departure from Australia, if the Visa is cancelled, would result in the applicant being unable to provide the same degree of care and support to his nieces and nephews and found the applicant has not established that the children’s parents would be unable to provide the requisite degree of support and care to the children, to the extent that the applicant’s departure from Australia would have any adverse effect on the children.

17. The Tribunal expressly accepted that the applicant had a close relationship with his sister’s children and was prepared to accept that he plays a meaningful role in their upbringing. The Tribunal acknowledged that the best interests of the child are a primary consideration and accepted the close relationship with the sister’s children and was prepared to accept that it would be in the best interests of the children if they were to maintain a relationship with the applicant.

18. The Tribunal referred to having considered the totality of the circumstances and that the applicant did not comply with ss 102 and 104 of the Act and that there are grounds for cancelling the visa. 

19. The Tribunal again made express reference to the applicant’s evidence that he is bad with forms and made a mistake by not referring to his conviction on the IPC and the fact that he referred to convictions on other documents and in many airport interviews with Immigration and Australian Federal Police staff.

20. The Tribunal accepted that considerable hardship would be caused to the applicant and his family as a result of the cancellation. The Tribunal accepted that the applicant has been living in Australia for many years and referred to his hopes in respect of his entire family. The Tribunal accepted there being strong family links with the sister and her family. The Tribunal accepted that the best interests of the applicant’s nieces and nephews may be that they are not separated from the applicant and expressly acknowledged this to be a primary consideration.  The Tribunal made reference to the other strong social ties and activities of the applicant in the community. 

21. The Tribunal’s reasons reflect a genuine intellectual engagement with the applicant’s claims concerning the best interests of the children. 

22. The Tribunal concluded that the Visa should be cancelled.

23. The applicant seeks to rely upon an affidavit dated 6 April 2021 that adduces material that was not before the Tribunal. Such material is not capable of giving rise to any relevant error as it goes to the merits of the arguments. It is not suggested that the document, relevantly in respect of a notification that occurred in 2013, a year after the first conviction, that is was, in fact, before the Tribunal. In those circumstances, the Court is not satisfied that the affidavit is relevant, and accordingly, whilst it was admitted subject to relevance, the Court rules that the affidavit is irrelevant and the tender is rejected.

    THE GROUNDS

24. The grounds in the further amended application are as follows:

    (1)The Tribunal misapplied the law to the facts as found

    Particulars

    (a)The Tribunal failed to understand and apply the provision of section 99 of the Migration Act 1958

    Information is answer

    Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of section JOO, paragraphs JOJ(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen 's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    (b)All forms given to the Respondent are, therefore, taken to have been amended by the information given.

    (2)The Tribunal failed to treat the best interests of the children as a primary criteria.

    Particulars

    (a)The Tribunal identified the children at [50] but fails to identify where their best interests lay in respect of whether the Applicant remained in Australia or not.

    (b)The statement of the Tribunal at [50] fails to identify how the relationship between the children and the Applicant will be maintained.

    (3)The Tribunal applied the wrong test in relation to the Incoming Passenger Cards and failed to complete its task.

    Particulars

    (a)The Tribunal considered that the entries on the Incoming Passenger Cards was relevant because it was:

    "In the Tribunal's view, the circumstances in which the non-compliance occurred show that the Applicant was either indifferent in relation to its obligation under migration laws, or that he was deliberately untruthful" [32].

    (b)The correct test set out in Degning v Minister for Home Affairs [2018] FCAFC 67 per Allsop CJ at [34]:

    "The declarations on the cards could only be relevant to reveal a -further disregard for the law if done knowingly and dishonestly."

    (c)For the Tribunal to apply the proper test and complete its task it needed to make a determinative finding that the conduct was either:

    (i)Knowingly done; and

    (ii)Deliberately untruthful

    (d)The Tribunal failed to make such a determinative finding and found that the conduct was either indifferent or deliberately untruthful. If, on the Tribunal's reasoning the conduct shows that the Applicant was indifferent, he did not breach the test set out in Degning.

    (4)The Tribunal based its decision on a fact that didn’t exist.

    Particulars

    (a)The Tribunal stated that the Applicant did not notify the Department of the conviction in writing.

    (b)The fact is that the Applicant did advise the Department of the conviction in writing.

    GROUND 1

25. In relation to ground 1, Mr Turner, on behalf of the applicant, seeks to contend that on its proper construction, s 99 of the Act should be construed in a way in which it cures any incorrect information provided for the purpose of ss 104 or 105 of the Act. The construction advanced has no support in the context of the provisions read as a whole. It is clear that the provision was seeking to ensure that correct and accurate and true information is provided throughout the process in respect of the granting of a visa or provision of information to the Tribunal or the Immigration Assessment Authority. The construction of s 99 of the Act, that was intended, as advanced by Mr Turner, to mean that the lies or incorrect information is cured once the lie is acknowledged or the incorrect information is acknowledged, is not a construction that the provision bears. It would give rise to rendering, in substance, ss 104 and 105 to be without real function. The Court does not accept that there should be implied into s 99 of the Act that incorrect or misleading are words taken for the purpose of the relevant sections to be an answer that is correct or is not misleading, which is, in substance, the submission advanced. 

26. Accordingly, no jurisdictional error as alleged in ground 1 is made out.

    GROUND 2

27. In relation to ground 2, Mr Turner submitted that there was nothing more than lip service paid to the best interests of the children. The Tribunal’s reasons do not support that contention and should not be read with a keen eye for error.

28. Mr Turner advanced that the Tribunal did not address how the relationship would be further meaningfully engaged with after he left Australia. That is, in substance, an invitation to engage in merits review. It does not reflect an absence of genuine intellectual engagement by the Tribunal with the best interests of the children of the applicant’s sister. 

29. No jurisdictional error as alleged in ground 2 is made out.

    GROUND 3

30. In relation to ground 3, Mr Turner submitted that the Tribunal had not completed its task because it had not made a finding that the completion of the IPC in respect of the incorrect information was knowingly untruthful. Mr Turner relied upon a decision of the Full Court of the Federal Court of Australia in that regard in seeking to contend that such was a necessary part of the findings that the Tribunal had to make. That proposition has no support in the statutory structure of the provisions and it is clear that the Full Court decision to which Mr Turner turned was one addressing a completely different concept in respect of risk to the community and findings made in a particular case that had no application to this case.  

31. There was no failure by the Tribunal to complete its statutory task in the review. The Tribunal clearly turned to the question, of which the applicant was on notice from the communication that had been sent to the applicant on 24 January 2019, that there was information suggesting that he had provided an incorrect answer deliberately. The adverse finding by the Tribunal, that the applicant was indifferent to the correct answer or deliberately untruthful, was a finding that was clearly open to the Tribunal and does not reflect any jurisdictional error by the Tribunal. 

32. No jurisdictional error as alleged in ground 3 is made out.

    GROUND 4

33. In relation to ground 4, this ground is one which cannot succeed in light of the Court’s ruling on the affidavit evidence that was admitted subject to relevance. The applicant, in substance, wished to contend that because he had found information relating to something being in writing that was not before the Tribunal, that the Tribunal had made a finding about whether the applicant had provided information under s 104 of the Act that was incorrect or was not the subject of evidence.

34. The Tribunal clearly identified the time of the relevant conviction in 2012. Section 104 of the Act has language that refers to “as soon as practicable”. The relevant document on which the applicant sought to rely was one dated 2013. It was not before the Tribunal. Documents that are not before the Tribunal insofar as the merits are concerned are not capable of giving rise to any alleged error. The adverse finding by the Tribunal in respect of s 104 was open on the evidence before the Tribunal.

35. No jurisdictional error as alleged in ground 4 is made out. 

36. As the further amended application fails to make out any jurisdictional error, the further amened application is dismissed.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 12 April 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       10 June 2021