Singh v Minister for Immigration
[2006] FMCA 1163
•27 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1163 |
| MIGRATION – Review of delegates’ decision cancelling permanent residence visas and refusing to revoke the cancellations – applicants said to have given false or misleading information – engagement to marry – whether grounds for cancellation existed or existed at the relevant time considered – whether claims for revocation were meaningfully considered – whether it was open to the delegate to cancel the visas without notice or at all considered. |
| Migration Act 1958 (Cth), ss.109, 116, 117 128, 131 Migration Legislation (Amendment) Act (No 1) 1998 (Cth) Migration Litigation Reform Act 2005 (Cth) |
| Cheaib v Minister for Immigration (1997) 75 FCR 308 Chhuon v Minister for Immigration (2003) 198 ALR 500 Doukmak v Minister for Immigration (2001) 114 FCR 432 Minister for Immigration v Huynh [2004] FCAFC 256 NAJT v Minister for Immigration [2005] FCAFC 134 Ou Yang v Minister for Immigration [2003] FCAFC 258 Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 75 SHJB v Minister for Immigration (2001) 134 FCR 43 Re Minister for Immigration; ex parte S20/2002 (2003) 198 ALR 59 Rezaei v Minister for Immigration [2001] FCA 1294 Singh v Minister for Immigration (2001) 109 FCR 152 SZEKC v Minister for Immigration [2006] FCA 1065 VAAD v Minister for Immigration [2005] FCAFC 117 |
Applicants: | MONICA SINGH MONILTA SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Numbers: | SYG547 of 2006 SYG549 of 2006 |
| Judgment of: | Driver FM |
| Hearing dates: | 11 August, 15 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Macquarie Partnership |
| Counsel for the Respondents: | Mr Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The time for the filing of the applications is extended to 21 February 2006.
Writs of certiorari shall issue quashing the two decisions of the delegate of the Minister made on 9 June 2005 to cancel each applicant’s permanent residence visa, and the two decisions of the delegate of the Minister made on 21 September 2005 refusing to revoke the cancellations.
The Court declares that on and from 9 June 2005 each applicant held a valid permanent residence visa and had the right to enter and live in Australia.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG547 of 2006, SYG549 of 2006
| MONICA SINGH, MONILTA SINGH |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
These proceedings involve judicial review applications by twin sisters. They challenge separate decisions made by delegates of the Minister cancelling permanent residence visas they held and refusing to revoke the cancellations. The cancellation decisions followed a six year struggle by the sisters to prove their dependency upon their parents, and a decision by the Migration Review Tribunal (“the MRT”) that they had done so. Nevertheless the Minister’s delegate decided that the sisters had been untruthful and moved without notice and quickly to cancel the visas that had eventually been granted. The judicial review applications were initially docketed to different Federal Magistrates but, for reasons of convenience, both matters were subsequently docketed to me. Given that the decisions under review are identical and that the facts leading up to those decisions appeared to be effectively the same, I decided to deal with the two matters concurrently.
The following statement of background facts in these matters is taken from submissions of the applicants and the Minister in each case with necessary amendments. Reference to the court books are references to the court books filed in SYG547 of 2006.
The applicants seek review of two decisions of the Minister’s delegates. The first decisions were made on 9 June 2005 (“the first decisions”). The second decisions were made on 21 September 2005 (“the second decisions”). The first decisions cancelled the applicants’ visas under s.128 of the Migration Act 1958 (Cth) (“the Migration Act”). The second decisions were decisions not to revoke the cancellation of the applicants’ visas.
The applicants are citizens of Fiji. The applicants reside outside Australia; they live in Suva, Fiji.
On 28 April 1998 the applicants’ father Rajendra Narayan Singh (“Rajendra”) applied for a subclass 105 skilled Australian-linked migrant visa (supplementary court book, pages 1-36, 42). In the application:
a)The applicants were secondary applicants, being members of Rajendra’s family unit. The applicants are Rajendra’s daughters, born in January 1977 whose marital status was “single” (supplementary court book, page 11).
b)The application form was signed by the applicants (supplementary court book, page 17).
On 3 July 2000 the applicants completed Form 47A titled “Details of child or other dependent family member aged 18 years or over” (supplementary court book, pages 20-36). In relation to the form:
a)The applicants stated that they were born on 9 January 1977, were 23 at the time of completing the form and were “never married” (supplementary court book, pages 20, 21).
b)In response to question 19, it was stated and explained how the applicants were dependent on their father (supplementary court book, page 35).
c)The applicants’ residential address was the family residential address at 18 Namuka Street, Samabula, Suva (supplementary court book, page 36).
On 2 January 2001 a delegate of the Minister refused to grant the applicants a visa. The applicants sought a review of that decision and on 27 November 2003 the MRT set aside the delegate’s decision, and on 12 February 2004 the applicants obtained a dependent visa (supplementary court book, pages 43-53 and 59-61).
On 14 September 2001 a delegate granted Rajendra and his wife a subclass 501 visa. (court book, page 42.3)
On 15 December 2003 the applicants signed a Notification of Changes in Circumstances Form provided by the Minister’s Department (supplementary court book, pages 54-57). In that form the applicants declared there was no change in their circumstances.
On 10 April 2005 Amendra Prasad and Ushneesh Sumeshwar Yadav lodged applications for a subclass 309 prospective spouse visa (court book, pages 1-35 and 58-59). In the application:
a)Amendra, Ushneesh and the applicants stated that they married on 25 January 2005 (court book, pages 3, 9 and 20) and 24 November 2004 respectively.
b)Amendra, Ushneesh and the applicants stated that they commenced living together at 20 Kabara Street, Samabula North, Suva on 29 January 2005 and at 64 Ono Street, Sambula, Suva on 24 November 2004 respectively. These were the residential addresses of Amendra’s and Ushneesh’s families (court book, pages 3, 7, 9, 11, 20 and 25).
c)Amendra, Ushneesh and the applicants wrote that they first met on 1 April 2000. (court book, pages 9 and 20)
d)Question 60 in the application form asked: “How long after you met did you and your partner make the decision that you wanted to get married?” Amendra wrote “1 year”. (court book, page 9). Ushneesh wrote “1.5 years”. The applicants gave the same answers (court book, page 20).
e)The applications included statements by the applicants, Monica’s being dated 10 April 2005 (court book, page 59). Monica wrote, among other things:
As time went by we became intimate friends. I remember it was middle of 2003 when we discussed about marriage and finally agreed to talk to our parents about it. But I could not mention about Amendra to my parents because he was studying and so was I. After we both finished our education, Amendra found a job and I started part time work in my father’s company. Finally in mid 2004 I told my parents about our relationship. My parents and Amendra’s parents discussed and agreed to marriage. (emphasis added)
Monilta’s statement was undated. She wrote:
One day [Ushneesh] told me that he loved me and wanted to marry me. I was filled with joy and I told him that I love him a lot and will marry him. But unfortunately his father who had been admitted to the hospital died. Ushneesh and I decided not to tell our families what our intentions were. According to Indian customs, we would have to wait for a year before he could marry because of a death of a family member … We decided that once he would graduate and get a good job then we would marry. I told my parents about Ushneesh in 2003. The good thing was that my father had known his father well as they had done some business before so I suppose he was not angry as he got to know that Ushneesh came from a good family background. Ushneesh was working at the Ministry of Tourism on a voluntary basis. In 2004 when he began working at the Ministry of National Reconciliation and Unity our families began meeting …(emphasis added)
f)The applications included statements by Amendra and Ushneesh. That of Amendra was dated 10 April 2005 (court book, page 58). Amendra wrote, among other things:
We began to buy gifts on birthdays and on Christmas. Year went by and we made decision to get married, but this was only possible if we had a job. So Monica and I kept this as a secret. We planned to talk to our parents once we found job, because at that time I was attending Fiji Institute of Technology and Monica was doing the course at Aptech Education Centre.
In 2003 I found a job. And we were both serious in getting married. We told our parents so both the families met and agreed on our decision … (emphasis added)
Ushneesh’s statement was undated. He wrote in part:
Sometime in October [2001] I expressed my love for her and she told me that she loved me too and we began to talk about marriage. Unfortunately my father died in December that year so Monilta and I kept our wedding plans to ourselves. According to Indian customs we have to wait for at least 6 to 12 months before someone can get married if there is a death in the family. We then decided that we would get married once I graduated and got a job … I graduated from the University of the South Pacific in December 2002 but was unable to find a full time paid job. I did some attachment work at the Ministry of Tourism for a few months in 2003 and Monilta then told her parents about us and our intention to marry each other. In 2004 I began working at the Ministry of National Reconciliation and Unity and by the middle of the year both our families began meeting regularly to discuss our wedding preparations …(emphasis added)
g)The applications included statutory declarations by Rajendra dated 29 March 2005 (court book, pages 28-29) and 17 March 2005 respectively. Rajendra, who was still residing in the family home in Suva, wrote among other things:
In 2004 our daughter Monica who is the sponsor told her mother about her relationship with the applicant. Subsequently Amendra approached me and sought my permission to marry our daughter …
According to our Hindu culture and tradition I believe any relationship between a boy and girl culminating in marriage is regarded genuine only after the expressed approval and blessing of such relationship by the parents of both parties. In this case we gave them our blessing … (emphasis added)
I came to know the applicant Ushneesh since early 2003 when our daughter Monilta introduced him to my wife and me. Both were students then … [Ushneesh] expressed to us his desire to marry Monilta after graduation. We have been meeting and speaking to him nearly every week when he visited our daughter at our home.
According to our Hindu culture, custom and tradition we believe any relationship between a boy and girl culminating in marriage is regarded genuine only after the expressed approval and blessing of such relationship by the parents of both parties. In this case we gave them our blessing. So did Ushneesh’s parents …” (emphasis added)
On 2 and 4 May 2005 the Australian High Commission in Suva interviewed the applicants and their spouses separately. In those interviews Amendra Prasad and Monica said that they considered themselves to be engaged to each other to be married from July 2003 (court book, pages 41.5 and at 52-53). In his interview, Amendra Prasad stated he proposed to Monica in mid July 2003 and that they both agreed (court book, page 53.3).
Ushneesh Yadav and Monilta stated that they talked of marriage at the end of 2001. Ushneesh stated that his parents were aware that he and Monilta were dating from 2001.
On 9 June 2005 a delegate of the Minister (Luci Henson) purportedly cancelled the applicants’ permanent residence visas under s.128 of the Migration Act. (court book, pages 39-42) The delegate prepared a document titled “Decision record of visa cancellation under s.128 of Migration Act”. (court book, pages 40-42) The document is divided into four parts:
a)In Part A, titled “Personal and visa details”, the delegate set out the personal and visa details of the applicants.
b)In Part B, titled “Consideration of visa cancellation”:
· The delegate sets out s.109 of the Act and reg 2.41 of the Regulations.
· The delegate summarises the evidence before her and makes some intermediate findings. In relation to the summary of evidence the delegate states in relation to the evidence given by Monica and Amendra at interview on 4 May 2005:
Both confirmed that all their families were aware that they intended to get married in December 2003.
The applicants assert that this sentence is not correct. Specifically, while Amendra stated that in December 2003 his parents were aware that he and Monica intended to get married, neither person stated that Monica’s parents were aware of this fact in December 2003.
c)In Part C, titled “Grounds for cancellation”:
· The delegate identifies grounds for cancellation. Specifically the delegate states in identical terms in each case:
I consider that there are grounds for cancellation under s 109 of the Migration Act. Ms Singh has made a false declaration on her application for visa to Australia. Ms Singh had declared that there was no material change in her circumstances when it is clear that she had been engaged.
· The delegate also gives reasons why she decided to cancel the applicants’ visas without notice under s 128. Specifically the delegate states in identical terms in each case:
The Department’s movement records show that the applicant is currently outside Australia. I am concerned that there is a possibility that the applicant may attempt to enter Australia if she was given prior notice of any cancellation.
d)In Part D, titled “Decision”, the delegate concludes in each case:
In view of the findings and assessment above, I have decided to cancel the visa holder’s subclass 105 visa.
On 9 June 2005 the delegate sent a letter to the applicants: (court book, page 39)
a)advising them that their visas were cancelled on 9 June 2005; and
b)inviting them to show by way of response received by 28 July 2005 “that the ground for cancellation does not exist” or that “there is a reason why your visa should not have been cancelled”.
On 27 July 2005 the applicants’ migration agent provided a response to the delegate’s letter. (court book, pages 43-45) The migration agent:
a)submitted that the applicants were not engaged at the time they signed the Form 1022 declaration on 15 December 2003; and
b)even if the applicants were engaged and the December 2003 declaration involved giving an incorrect answer, there were reasons their visas should not be cancelled in the exercise of the Minister’s discretion under s.109 of the Act.
The migration agent’s letter also attached a statement by a “registered Vedic priest (marriage officer)” in Fiji who stated: (court book, page 46)
This is to advise that in accordance with Indian culture and tradition, when a boy and a girl of marriageable age wish to get married together, they are required to consult their parents and obtain their agreement to do so. Once the parents give their approval to the marriage only then are the two considered to be engaged for marriage. The fact that the two may have been talking to one another and moving about as friends with a view to marriage, before obtaining parental approval, is not regarded as engagement.
On 21 September 2005 a delegate of the Minister made a decision in each case not to revoke the cancellation of the applicants’ visas (court book, pages 60-61). The delegate stated in identical terms in each case:
A visa cancellation must be revoked if the visa holder shows that the ground for cancellation did not exist. Your visa was cancelled on the basis that you provided misleading information to the Department.
In considering whether there are other reasons to revoke the cancellation, I have taken account your claim that no religious ritual was carried out and that the parents were not involved in the discussions and therefore you were not engaged …
The delegate then restated the evidence supporting his belief that the applicants provided false information to the Department. One sentence in the summary of evidence in relation to Monica was:
Both you and your partner stated that from [July 2003] … both your families were aware of your intentions to marry.
This statement is disputed by Monica on the basis that there is no evidence supporting it. The delegate, after referring to further evidence supporting his belief that the applicants provided false information to the Department, then concluded in each case:
Therefore, a decision has been made not to revoke your visa cancellation. (emphasis added)
On 21 February 2006 the applicants applied to the Federal Magistrates Court for judicial review of:
a)the delegate’s decisions dated 9 June 2005; and
b)the delegate’s decisions dated 21 September 2005.
The applications
It is common ground that the applicants require an extension of time to file their applications. The Minister opposes that extension of time.
It is also common ground that, if an extension of time is granted, this Court has jurisdiction to review the delegates’ decisions.
At the commencement of the trial of this matter on 11 August 2006 the applications had been amended and raised the following issues:
a)In June 2005 a delegate of the Minister purportedly cancelled the applicants’ visas under s.128 of the Migration Act. A visa may only be cancelled under s.128 if “there is a ground for cancelling [the] visa under s.116”. There was no such ground in the present case. Accordingly, the delegate did not have power to cancel the applicants’ visas under s.128. (“Section 128 issue I”)
b)A visa can only be cancelled under s.128 of the Act if “the Minister is satisfied that … it is appropriate to cancel in accordance with this Subdivision”. The Minister’s delegate asked the wrong question or applied the wrong test in reaching a state of satisfaction as to whether it was “appropriate to cancel in accordance with this Subdivision”, giving rise to jurisdictional error. (“Section 128 issue II”)
c)
Each applicant’s visa could only be cancelled if she gave an “incorrect answer” within the meaning of s.101 of the Act. Whether the applicants gave an incorrect answer is a jurisdictional fact upon which the Minister’s power to cancel depends. The applicants did not give an incorrect answer.
On this basis, the Minister did not have power to cancel their visas. (“Section 101 issue”)
d)A criterion for the subclass 105 visa for which the applicants applied was that they were members of the family unit “at the time of decision”. The time of decision in relation to this criterion was the date of the Tribunal’s decision on 3 November 2003. If this contention is correct, the applicants did not give an “incorrect answer” in a change of circumstances form signed on 15 December 2003 and the delegate fell into jurisdictional error in cancelling the applicants’ visas in June 2005. (“Date of decision issue”)
e)
In relation to the decisions dated 9 June 2005 and 21 September 2005, the delegates were required to have regard to the prescribed circumstances in s.109(1)(c) of the Migration Act before deciding whether to cancel the applicants’ visas under s.128 and/or whether to refuse to revoke the cancellation under s.131.
The delegates failed to have regard to the prescribed circumstances. For this reason, there was jurisdictional error. (“Prescribed circumstances issue”)
f)In relation to the decisions dated 9 June 2005 and 21 September 2005, regardless of the prescribed circumstances, there were at least three considerations which were so obvious and important to the exercise of the delegates’ discretion mandated by s.109 and 131(1)(b) of the Act that the delegates were bound to consider them. The delegates failed to do so, giving rise to jurisdictional error. (“Relevant considerations issue”)
g)A question is whether the applicants should be granted an extension of time under s.477 of the Migration Act. (“Extension of time issue”)
Additional issues emerged on the first day of the trial which took the whole day. These included:
a)whether the delegates erred by failing to take into account relevant material, namely the decision and reasons of the MRT and the evidence given to that tribunal;
b)whether the second delegate gave meaningful consideration to the grounds advanced by the applicants in support of their application for the cancellation decision of the first delegate to be revoked;
c)whether there was unwarrantable delay by the Minister’s Department and the MRT and, if so, whether that delay has some legal significance; and
d)whether it was possible for the first delegate to cancel the visas without notice upon the ground of the application of s.116(1)(d) which assumed that the visas could have been cancelled under different provisions of the Migration Act which depended upon notice being given.
In the light of the complexity and number of issues apparently arising, I invited counsel for the applicants to review the judicial review application and his written submissions in order to satisfy himself that they covered all of the issues that he wished to cover and directed any further amended application and any further written submissions that the applicants seek to rely upon to be filed and served by 21 August 2006. Counsel for the Minister indicated that the Minister reserved her right to oppose leave being granted to introduce a further amended application, having regard to the length of time already taken in the matter and the existing complexity of the matter.
In the event, a further amended application in each case was filed on 21 August 2006 which raised the following grounds:
1.In June 2005 a delegate of the Minister purportedly cancelled the applicant’s visa under s.128 of the Migration Act. A visa may only be cancelled under s.128 if “there is a ground for cancelling [the] visa under s.116”. There was no such ground in the present case. Specifically, It appears that the delegate relied on the ground in s.116(1)(d) of the Migration Act. However:
a) Section 116(1)(d) only applies if the holder of the visa “has not entered Australia or has so entered but not been immigration cleared”. The applicant was not a person who “has not entered Australia” within the meaning of s.116(1)(d).
b)It appears that the delegate relied on the ground in s.116(1)(d) of the Migration Act. Section 116(1)(d) cannot apply until the Minister has satisfied the three conditions set out in s.109(1) of the Act. In the present case the Minister has not satisfied the three conditions before cancelling the applicant’s visa, in particular the notification requirement under s.107.
In these circumstances, the delegate did not have power to cancel the applicant’s visa under s.128.
2.A visa can only be cancelled under s.128 of the Act if “the Minister is satisfied that … it is appropriate to cancel in accordance with this Subdivision”. The Minister’s delegate asked the wrong question or applied the wrong test in reaching a state of satisfaction as to whether it was “appropriate to cancel in accordance with this Subdivision”, giving rise to jurisdictional error.
3.The applicant’s visa could only be cancelled if she gave an “incorrect answer” within the meaning of s101 of the Act. Whether the applicant gave an incorrect answer is a jurisdictional fact upon which the Minister’s power to cancel depends. The applicant did not give an incorrect answer. On this basis, the Minister did not have power to cancel her visa.
4.A criterion for the subclass 105 visa for which the applicant applied was that she was a member of the family unit “at the time of decision”. The time of decision in relation to this criterion was the date of the Tribunal’s decision on 3 November 2003. If this contention is correct, the applicant did not give an “incorrect answer” in a change of circumstances form signed on 15 December 2003 and the delegate fell into jurisdictional error in cancelling the applicant’s visa in June 2005.
5.In relation to the delegates’ decisions dated 9 June 2005 and 21 September 2005, the delegates were required to have regard to:
a)the prescribed circumstances in s.109(1)(c) of the Migration Act and/or
b)the prescribed matters in Migration Series Instruction 340, before deciding whether to cancel the applicant’s visa under s.128 and/or refuse to revoke the cancellation under s.131. The delegates failed to have regard to these prescribed matters. For this reason, there was jurisdictional error.
6.In relation to the delegates’ decisions dated 9 June 2005 and 21 September 2005, regardless of the prescribed matters, there were at least four considerations which were so obvious and important to the exercise of the delegates’ discretions mandated by s.116(1) and 131(1)(b) of the Act that the delegates were bound to consider them. The considerations were:
a) whether at the time the applicant signed the change of circumstances form in December 2003 she knew that she gave or intended to give an incorrect answer;
b)the fact that in December 2003 the applicant continued to be dependent on her father;
c)the fact that in November 2003 the Migration Review Tribunal made a decision that the applicant was a dependent child of her father; and
d)the fact that extraordinary delays in processing the applicant’s visa application were not the fault of the applicant and were within the control of the Department and Tribunal.
The delegates failed to consider or have regard to these matters, giving rise to jurisdictional error.
7.In relation to the delegate’s decision dated 21 September 2005, the delegate, in considering whether “there is another reason why the cancellation should not be revoked” (s.131(1)(a) of Act), fell into jurisdiction error on the following grounds:
a)The delegate failed to have regard to the matters in the letter from the applicant’s migration agent dated 27 July 2005.
b)The delegate did not make the decision in good faith in the sense described in Chhuon v MIMIA (2003) 198 ALR 500 at [54].
The granting of leave to introduce the further amended application was not opposed. I granted leave.
The hearing resumed on 15 September 2006 when I took additional submissions from the applicants and the Minister’s submissions.
The evidence
In addition to the court books and supplementary court books filed on 15 June 2006 and 18 July 2006 I received the following evidence:
a)affidavits in the same terms in each matter by Chandra Jamnadas filed on 21 February 2006 dealing with the issue of delay in the commencement of the proceedings in this Court;
b)exhibit A1 being documents from the files of the Minister’s Department bearing on the question of delay within the Department; and
c)exhibit A2 being documents from the file of the MRT bearing on the question of delay in the MRT.
I marked for identification, but did not mark as an exhibit, a copy of Migration Series Instruction 368. I took the view that I could have regard to the MSI as a matter of public record.
The legislation
Subdivision C of the Migration Act states:
Section 97:
Interpretation
In this Subdivision:
"application form" , in relation to a non-citizen, means a form on which a non-citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
"bogus document" , in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
"passenger card" has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Section 97A:
Exhaustive statement of natural justice hearing rule
(1)This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2)Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
Section 98:
Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
Section 99:
Information is answer
Any information that a non‑citizen gives, causes to be given or that is given on his or her behalf to the Minister, an officer or a person or Tribunal reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(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 orally or in writing and whether at an interview or otherwise.
Section 100:
Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave the answer or caused the answer to be given did not know that it was incorrect.
Section 101:
Visa applications to be correct
A non‑citizen must fill in his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given.
Section 102:
Passenger cards to be correct
A non‑citizen must fill in his or her passenger card in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given.
Section 103:
Bogus documents not to be given
A non‑citizen must not give an officer, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given.
Section 104:
Changes in circumstances to be notified
(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4)Subsection (1) applies despite the grant of any visa.
Section 105:
Particulars of incorrect answers to be given
(1) If a non‑citizen becomes aware that:
(a)an answer given in his or her application form; or
(b)an answer given in his or her passenger card; or
(c)information given by him or her under section 104 about the form or card; or
(d)a response given by him or her under section 107;
was incorrect when it was given, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2) Subsection (1) applies despite the grant of any visa.
Section 106:
Obligations to give information is not affected by other sources of information
The requirement for a non‑citizen to comply with sections 101, 102, 103, 104 and 105, is not removed or otherwise affected by the fact that the Minister or an officer had, or had access to:
(a) any information given by the non‑citizen for purposes unrelated to the non‑citizen’s visa application; or
(b) any other information.
Section 107:
Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)giving particulars of the possible non‑compliance; and
(b)stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non‑compliance:
(A) shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non‑compliance–shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response–when that notice is given; or
(ii) if the holder gives the Minister a written response within that period–when the response is given; or
(iii) otherwise–at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i) to tell the Minister the address at which the holder is living; and
(ii) if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder–to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)in respect of the holder of a temporary visa–the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)otherwise–14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)visas of a stated class; or
(b)visa holders in stated circumstances; or
(c)visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
Section 107A:
Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa
The possible non‑compliances that:
(a)may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(b)if so specified, can constitute a ground for the cancellation of that visa under section 109;
include non‑compliances that occurred at any time, including non‑compliances in respect of any previous visa held by the person.
Section 108:
Decision about non-compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
Section 109:
Cancellation of visa if information incorrect
(1) The Minister, after:
(a)deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
Section 110:
Cancellation provisions apply whatever source of knowledge of non-compliance
To avoid doubt, sections 107, 108 and 109 apply whether or not the Minister became aware of the non‑compliance because of information given by the holder.
Section 111:
Cancellation provisions apply whether or not non-compliance deliberate
To avoid doubt, sections 107, 108 and 109 apply whether the non‑compliance was deliberate or inadvertent.
Section 112:
Action because of one non-compliance not prevent action because of other non-compliance
(1)A notice under section 107 to a person because of an instance of possible non‑compliance does not prevent another notice under that section to that person because of another instance of possible non‑compliance.
(2)The non‑cancellation of a visa under section 109 despite an instance of non‑compliance does not prevent the cancellation, or steps for the cancellation, of the visa because of another instance of non‑compliance.
Section 113:
No cancellation if full disclosure
If the holder of a visa who has been immigration cleared complied with sections 101, 102, 103, 104 and 105 in relation to the visa, it cannot be cancelled under this Subdivision because of any matter that was fully disclosed in so complying.
Section 114:
Effect of setting aside decision to cancel visa
(1)If the Federal Court, the Federal Magistrates Court, the Administrative Appeals Tribunal, the Migration Review Tribunal or the Refugee Review Tribunal sets aside a decision under section 109 to cancel a person’s visa, the visa is taken never to have been cancelled.
(2)In spite of subsection (1), any detention of the non‑citizen between the purported cancellation of the visa and the decision to set aside the decision to cancel is lawful and the non‑citizen is not entitled to make any claim against the Commonwealth or an officer because of the detention.
Section 115:
(1) This Subdivision applies to:
(a) applications for visas made; and
(b) passenger cards filled in;
on or after 1 September 1994.
(2)This Subdivision, other than sections 101 and 102, applies to:
(a)applications for visas, or entry permits, within the meaning of the Migration Act 1958 as in force before 1 September 1994, that under the regulations are taken to be applications for visas and that have not been finally determined before that date; and
(b)passenger cards filled in before 1 September 1994.
(3)This Subdivision applies to a visa granted otherwise than because of an application on or after 1 September 1994 and does so as if:
(a) this Subdivision had applied to:
(i) the application for the visa; and
(ii) passenger cards filled in before that date; and
(b)the application for any other visa, or entry permit, (within the meaning of the Migration Act 1958 as in force immediately before that date) because of which the visa is held had been the application for the visa; and
(c)for the purposes of sections 107 to 114, non‑compliance by the holder of the visa with the sections referred to in section 107 included any action or condition of the holder because of which section 20 of that Act as so in force applied to the holder.
Subdivision D of the Migration Act provides relevantly - section 116:
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a)any circumstances which permitted the grant of the visa no longer exist; or
(b)its holder has not complied with a condition of the visa; or
(c)another person required to comply with a condition of the visa has not complied with that condition; or
(d)if its holder has not entered Australia or has so entered but has not been immigration cleared–it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
(e)the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or
(f)the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or
(fa)in the case of a student visa:
(i) its holder is not, or is likely not to be, a genuine student; or
(ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or
(g)a prescribed ground for cancelling a visa applies to the holder.
(1A)The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.
(2)The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.
(3)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
Section 117:
(1)Subject to subsection (2), a visa held by a non‑citizen may be cancelled under section 116:
(a)before the non‑citizen enters Australia; or
(b)when the non‑citizen is in immigration clearance (see section 172); or
(c)when the non‑citizen leaves Australia; or
(d)while the non‑citizen is in the migration zone.
(2)A permanent visa cannot be cancelled under section 116 if the holder of the visa:
(a)is in the migration zone; and
(b)was immigration cleared on last entering Australia.
Section 118:
Cancellation powers do not limit or affect each other
The powers to cancel a visa under:
(a)section 109 (incorrect information); or
(b)section 116 (general power to cancel); or
(c)section 128 (when holder outside Australia); or
(d)section 134 (cancellation of business visas); or
(da)section 137Q (cancellation of regional sponsored employment visas); or
(e)section 140 (consequential cancellation of other visas); or
(ea)section 500A (refusal or cancellation of temporary safe haven visas); or
(f)section 501, 501A or 501B (special power to refuse or cancel);
are not limited, or otherwise affected, by each other.
Subdivision F of the Migration Act includes the following - section 128:
If:
(a) the Minister is satisfied that:
(i)there is a ground for cancelling a visa under section 116; and
(ii)it is appropriate to cancel in accordance with this Subdivision; and
(b) the non‑citizen is outside Australia;
the Minister may, without notice to the holder of the visa, cancel the visa.
Section 129:
Notice of cancellation
(1)If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:
(a)stating the ground on which it was cancelled; and
(b)giving particulars of that ground and of the information (not being non‑disclosable information) because of which the ground was considered to exist; and
(c)inviting the former holder to show, within a specified time, being a prescribed time, that:
(i) that ground does not exist; or
(ii) there is a reason why the visa should not have been cancelled; and
(d)stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and
(e)stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.
(2)The notice is to be given in the prescribed way.
(3)Failure to give notification of a decision does not affect the validity of the decision.
Section 131:
Decision about revocation of cancellation
(1)Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister:
(a)if not satisfied that there was a ground for the cancellation; or
(b) if satisfied that there is another reason why the cancellation should be revoked;
is to revoke the cancellation.
(2)The Minister is not to revoke the cancellation of a visa if there exist prescribed circumstances in which the visa must be cancelled.
Submissions
Both parties made both oral and written submissions. The submissions of the applicants are both complex and detailed and, rather than attempt to summarise them, I have set them out essentially in full.
The applicants’ submissions are comprised in written submissions filed on 31 July 2006 and supplementary submissions filed on 21 August 2006. Relevantly, identical submissions were filed in both proceedings. I have reproduced the submissions relating to the application by Monica Singh. References to “the applicant” in the submissions should be taken to be to both applicants. Mr Zipser summarises the issues arising on the further amended application as follows:
a)In June 2005 a delegate of the Minister purportedly cancelled the applicant’s visa under s 128 of the Migration Act. A visa may only be cancelled under s 128 if “there is a ground for cancelling [the] visa under s 116”. There was no such ground in the present case. Specifically, it appears that the delegate relied on the ground in s 116(1)(d) of the Migration Act. However:
i)Section 116(1)(d) only applies if the holder of the visa “has not entered Australia or has so entered but not been immigration cleared”. The applicant was not a person who “has not entered Australia” within the meaning of s 116(1)(d).
ii)It appears that the delegate relied on the ground in s 116(1)(d) of the Migration Act. Section 116(1)(d) cannot apply until the Minister has satisfied the three conditions set out in s 109(1) of the Act. In the present case the Minister had not satisfied the three conditions before cancelling the applicant’s visa, in particular the notification requirement under s 107.
In these circumstances, the delegate did not have power to cancel the applicant’s visa under s 128. (“Section 128 issue I”)
b)A visa can only be cancelled under s 128 of the Act if “the Minister is satisfied that … it is appropriate to cancel in accordance with this Subdivision”. The Minister’s delegate asked the wrong question or applied the wrong test in reaching a state of satisfaction as to whether it was “appropriate to cancel in accordance with this Subdivision”, giving rise to jurisdictional error. (“Section 128 issue II”)
c)The applicant’s visa could only be cancelled if she gave an “incorrect answer” within the meaning of s 101 of the Act. Whether the applicant gave an incorrect answer is a jurisdictional fact upon which the Minister’s power to cancel depends. The applicant did not give an incorrect answer. On this basis, the Minister did not have power to cancel her visa. (“Section 101 issue”)
d)A criterion for the subclass 105 visa for which the applicant applied was that she was a member of the family unit “at the time of decision”. The time of decision in relation to this criterion was the date of the Tribunal’s decision on 3 November 2003. If this contention is correct, the applicant did not give an “incorrect answer” in a change of circumstances form signed on 15 December 2003 and the delegate fell into jurisdictional error in canceling the applicant’s visa in June 2005. (“Date of decision issue”)
e)In relation to the delegates’ decisions dated 9 June 2005 and 21 September 2005, the delegates were required to have regard to:
i)the prescribed circumstances in s 109(1)(c) of the Migration Act; and/or
ii)the prescribed matters in MSI 368,
before deciding whether to cancel the applicant’s visa under s 128 and/or refuse to revoke the cancellation under s 131. The delegates failed to have regard to these prescribed matters. For this reason, there was jurisdictional error. (“Prescribed matters issue”)
f)In relation to the delegates’ decisions dated 9 June 2005 and 21 September 2005, regardless of the prescribed matters, there were at least four considerations which were so obvious and important to the exercise of the delegates’ discretions mandated by s 116(1) and 131(1)(b) of the Act that the delegates were bound to consider them. The considerations were:
i)whether at the time the applicant signed the change of circumstances form in December 2003 she knew that she gave or intended to give an incorrect answer;
ii)the fact that in December 2003 the applicant continued to be dependent on her father;
iii)the fact that in November 2003 the Migration Review Tribunal (“the Tribunal”) made a decision that the applicant was a dependent child of her father; and
iv)the fact that the extraordinary delays in processing the applicant’s visa application were not the fault of the applicant and were within the control of the Department and Tribunal.
The delegates failed to consider or have regard to these matters, giving rise to jurisdictional error. (“Relevant considerations issue”)
g)In relation to the delegate’s decision dated 21 September 2005, the delegate, in considering whether “there is another reason why the cancellation should not be revoked” (s 131(1)(a) of Act), fell into jurisdictional error on the following grounds:
i)The delegate failed to have regard to the matters in the letter from the applicant’s migration agent dated 27 July 2005.
ii)The delegate did not make the decision in good faith in the sense described in Chhuon v MIMIA (2003) 198 ALR 500 at [54]. (“Revocation decision issue”)
h)A question is whether the applicant should be granted an extension of time under s 477 of the Migration Act. (“Extension of time issue”)
In relation to the first issue (the s.128 issue) the applicants submit as follows:
On 9 June 2005 a delegate of the Minister purportedly cancelled the applicant’s visa “without notice to the holder of the visa” under s 128 of the Act. A visa can only be cancelled under s 128 if the delegate “is satisfied that there is a ground for cancelling [the] visa under s 116”.
A question is whether there was a ground for cancelling the applicant’s visa under s 116.
It appears that the delegate relied on s 116(1)(d). If so:
a)Section 116(1)(d) only applies if the holder of the visa “has not entered Australia or has so entered but not been immigration cleared”.
b)In July 2004 the applicant entered Australia on her permanent residence visa. Some time later she returned to Fiji, although she had the right to re-enter Australia.
c)In these circumstances the applicant was not a person who “has not entered Australia” within the meaning of s 116(1)(d).
d)The phrase “if its holder has not entered Australia” may be ambiguous. The respondent will argue for a different construction of this phrase. Two points support the applicant’s construction of the phrase. First, if the applicant was immigration cleared at the time the Minister was considering canceling her visa, s 107 would have applied and the Minister would have been required to give the applicant notice and an opportunity to comment before canceling the visa. Section 107 reflects the common law rule of procedural fairness. The combination of ss 116(1)(d) and 128 permit the Minister to avoid the common law rule of procedural fairness in limited circumstances. Where legislation removes or limits the rights of individuals, the legislation should be construed strictly. On this basis, the opening clause of s 116(1)(d) (including the phrase “if its holder has not entered Australia”) should be construed strictly. Second, the drafters of s 116(1)(d) could have commenced s 116(1)(d) with an alternate opening clause “if its holder has not been immigration cleared -”, in which case s 116(1)(d) would have clearly applied to any visa holder who was not immigration cleared, whether or not the visa holder had previously entered Australia on the visa. The choice by the drafters of the present opening clause of s 116(1)(d) indicates that s 116(1)(d) does not apply where the applicant has previously entered Australia under the visa liable to cancellation.
Additional arguments addressed in the supplementary submissions are as follows:
First, principles of statutory construction support the applicant’s construction of the term “has not entered Australia” in s 116(1)(d) of the Act. For example, if Parliament wanted s 116(1)(d) to apply to persons outside Australia, Parliament could have used the words “outside Australia” instead of “has not entered Australia”: see for example s 119(1) (“non-citizens outside Australia”), s 128(b) (“non-citizen is outside Australia”), as well as s 78 (“child born in Australia”) and s 82 (“in Australia”). Where Parliament uses different words in legislation, the different words are presumed to have a different meaning: see for example Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 75 (“though it is not to be conclusive, the employment of different language in the same Act may show that the Legislature had in view different objects”).
Second, in Cheaib v MIMA (1997) 75 FCR 308 the Full Court held that the phrase “the non-citizen has not entered Australia” in s 128 (b) of the Migration Act at the time was “directed to a non-citizen who is in fact outside Australia at the time of the cancellation, whether or not the non-citizen has been at some time in the past in Australia”: Cheaib at 313G.
However, the decision of Lockhart J at 312-313 makes it clear that this finding was based on the following matters:
a)the heading to Subdivision F which read “Other procedures for cancelling visas under Subdivision D outside Australia” (emphasis added) (Cheaib at 312F);
b)“the object and purpose of subdivision F” (Cheaib at 312G); and
c)the Explanatory Memorandum to the Migration Reform Bill 1992 (Cheaib at 313C);
The absence of any of these matters in the present case supports the applicant’s construction of s 116(1)(d).
Issue in paragraph 6(a)(ii)
In relation to the issue in paragraph 6(a)(ii) above, a visa can only be “liable to be cancelled under Subdivision C” after the Minister has satisfied the three conditions set out in s 109(1) of the Act, which conditions also require the Minister to have issued a s 107 notice to the applicant. The Minister did not satisfy the three conditions set out in s 109(1) of the Act before cancelling the applicant’s visa. On this basis, the applicant’s visa could not be cancelled under s 116(1)(d) of the Act and the Minister’s delegate erred in purporting to do so.
In relation to the second issue relating to s.128 the applicants make the following submissions:
The Minister may only cancel a visa under s 128 if “the non-citizen is outside Australia” and, among other additional requirements, “it is appropriate to cancel in accordance with this Subdivision”.
The mere fact that a non-citizen is outside Australia is not sufficient to enliven the power under s 128. It must also be “appropriate to cancel in accordance with this Subdivision”.
In the present case in June 2005 the delegate gave the following reason for cancelling under s 128: (CB 42)
“The Department’s movement records show that the applicant is currently outside Australia. I am concerned that there is a possibility that the applicant may attempt to enter Australia if she was given prior notice of any cancellation.”
The applicant has three complaints about this reasoning.
First, in June 2005 the applicant was in a genuine marriage in Fiji with a person who had no right to enter Australia. All the evidence supported the fact that the applicant was in a genuine marriage. There was no evidence to the contrary. Further, the delegate’s cancellation decision was based on acceptance of the fact that the applicant was in a genuine marriage. Further, there was evidence that in June 2005 the applicant continued to be dependent on family members and could not live independently of them (eg until she got married she was dependent on her father (see eg SCB 35), she was unemployed for a period of time following which it appears she got a job in her father’s business (see SCB 6 and 35, CB 23 and 29), after she got married she and her husband lived in the husband’s family home suggesting dependence on the husband’s family) and there was evidence that the applicant’s father continued to reside in Fiji. In these circumstances, there was no rational basis for a concern by the delegate that the applicant “may attempt to enter Australia if she was given prior notice of any cancellation”. The basis for the delegate’s decision that it was “appropriate” that s 128 applied was perverse, based on no evidence, illogical and/or unreasonable in the Wednesbury sense. On this basis, there was jurisdictional error in the delegate’s decision that s 128 applied.
Second, it is evident that an Australian permanent resident outside Australia may re-enter Australia. The person has a right to re-enter Australia. The exercise of a permanent resident’s right to re-enter Australia cannot be an “appropriate” matter within the meaning of s 128. However, the delegate considered that the exercise of the applicant’s right to re-enter Australia was an “appropriate” matter. On this basis, the delegate asked the wrong question or took into account an irrelevant consideration in determining whether it was “appropriate” to cancel the applicant’s visa under s 128.
Third, where the Minister cancels a visa under s 107 or 116, the Minister is required to give the applicant notice and an opportunity to comment before cancelling the visa. This statutory right accords with the common law right of procedural fairness. Where s 128 applies, the applicant is stripped of these rights. It appears that the phrase “it is appropriate to cancel in accordance with this Subdivision” requires the Minister to address the question why it is appropriate to strip the visa holder of the right to be given notice and an opportunity to comment before their visa is cancelled. The delegate failed to address this question, giving rise to jurisdictional error.
The applicants further submit in their supplementary submissions in relation to that issue:
A further matter is as follows. For this and a number of other grounds of review, the applicant:
a)complains about the inadequacy of the delegates’ reasons for decision in relation to discretionary matters; and
b)states that the Court is entitled to draw conclusions as to the delegates’ reasoning process from the reasons for decision.
On this point, the applicant relies on Chhuon v MIMIA (2003) 198 ALR 500 at [53] where Mansfield J stated:
The fact is that reasons for the second decision were given, so I can discern from them the basis upon which the second decision was made.
In relation to the third issue (the s.101 issue) the applicants submit as follows:
The Minister’s delegate cancelled the applicant’s visa because the applicant failed to comply with s 101 of the Act. Section 101 requires that a non-citizen must fill in his or her application in such a way that “no incorrect answers are given”. Whether an answer is correct or incorrect does not depend on the delegate’s opinion, or else s 101(b) would be phrased “(b) in the Minister’s opinion, no incorrect answers are given”.
It follows that:
a)Whether or not an answer is “incorrect” is a jurisdictional fact on which the power to cancel is based. If there are no “incorrect answers” the Minster does not have power to cancel a visa holder’s visa.
b)If, in the opinion of this Court, there was no “incorrect answers” by the applicant, the Minister did not have power to cancel her visa.
It is open to this Court to conclude that, taking into account Fijian culture and the evidence of the Vedic priest at CB 46, the applicant was not engaged to be married in December 2003. If so, it follows:
a)The applicant did not give an “incorrect answer” when she signed the change of circumstances form in December 2003.
b)The Minister did not have power to cancel the applicant’s visa.
However, the applicant brings the Court’s attention to the decision of the Full Court in SHJB v MIMA (2001) 134 FCR 43 at [14]-[22]. In light of SHJB v MIMA, the applicant concedes that she is bound to lose on this ground of review in the Federal Magistrates Court.
The next issue is the date of the decision issue. The applicants submit:
Clause 105.32 of schedule 2 of the Migration Regulations relevantly sets out the following criterion for grant of a subclass 105 visa to secondary applicants:
105.32 Criteria to be satisfied at time of decision
105.321 The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 105 visa.
On 3 November 2003 the Migration Review Tribunal made a decision in which it directed that the applicant met the criteria in clause 105.321 of Schedule 2: see SCB 43. The relevant “time of decision” in relation to clause 105.321 was 3 November 2003.
On 15 December 2003 the applicant signed her name to a change of circumstances document in which Rajendra had written “Please be informed there is no change to circumstances of my family.” This statement or declaration must be considered in light of the fact that by this time:
a)the Tribunal had already made a determination that the applicant satisfied clause 105.321; and
b)the Department no longer had power to make a determination under clause 105.321.
In these circumstances the statement “Please be informed there is no change to circumstances of my family” was not an “incorrect answer” within the meaning of s 101 of the Act. The delegate fell into jurisdictional error in deciding otherwise.
As to the “prescribed matters” issue the applicants submit as follows:
Section 109:
a)provides that, where the Minister decides that “there was non-compliance by the holder of” a visa, the Minister has a discretion whether to cancel the visa;
b)indicates that the Minister must consider whether to exercise the discretion; and
c)states that the Minister must “have regard to [the] prescribed circumstances’, being circumstances prescribed by reg 2.41.
The delegate who cancelled the applicant’s visa in June 2005 gave written reasons for decision in a document titled “Decision record of visa cancellation under s 128 of the Migration Act”. (see CB 40-42) Review of the delegate’s written reasons assist this Court in understanding what matters the delegate took into account or did not take into account: see MIMA v Yusuf (2001) 206 CLR 323 at [69]. The delegate stated:
Ms Singh has made a false declaration on her application for a visa to Australia. Ms Singh had declared that there was no material change in her circumstances when it is clear that she had been engaged …
In view of the findings and assessment above, I have decided to cancel the visa holder’s subclass 105 visa. (emphasis added)
The applicant has at least two complaints about this reasoning.
First, it is unclear whether the delegate considered whether to exercise the discretion mandated by s 109. If the delegate had considered whether to exercise the discretion, “one would have expect to see reference to such examination” in the written reasons for decision: see Kalala v MIMA (2001) 114 FCR 212 at [23]. The absence of any reference to consideration of exercise of the discretion allows this Court to conclude that the delegate failed to consider whether to exercise the discretion, in which case the delegate fell into jurisdictional error.
Second, even if the delegate’s written reasons for decision are given a beneficial construction and this Court decides that the italicized words above indicate the exercise of a discretion, the delegate “must have regard to” the circumstances prescribed by reg 2.41 of the Migration Regulations. In the present case some of the circumstances prescribed by reg 2.41 required consideration of a number of matters and supported the exercise of the s 109 discretion not to cancel the applicant’s visa. For example:
a)Reg 2.41(d) required the delegate to consider “the circumstances in which the non-compliance occurred”. Four circumstances in the present case (all of which support the exercise of the s 109 discretion not to cancel the applicant’s visa) are as follows. First, there was evidence before the delegate that Fijian culture indicated that the applicant was not considered engaged to be married until the parents of the two families gave their consent to the marriage. Second, the applicant’s father filled in the December 2003 change of circumstances form (although it is acknowledged that the applicant signed it). In these circumstances it is likely that the applicant did not know that she gave, and did not intend to give, “incorrect information” when she signed the change of circumstances form in December 2003. Third, in December 2003 the applicant continued to be dependent on her father. She probably did not cease being dependent on her father until she moved into her new husband’s family home in January 2005. Fourth, there was an extraordinary delay between the applicant’s application for a visa (April 1998) and the grant of the visa (February 2004). If the delay was not the fault of the applicant or her father (which information the delegate had access to), this circumstance supported the exercise of the s 109 discretion not to cancel the applicant’s visa.
b)Reg 2.41(e) required the delegate to consider “the present circumstances of the visa holder”.
c)Reg 2.41(f) required the delegate to consider “the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act”.
d)Reg 2.41(g) required the delegate to consider “any other instances of non-compliance by the visa holder known to the Minister”. There were no other instances of non-compliance, which supported the exercise of the s 109 discretion not to cancel the applicant’s visa.
If the delegate had considered these matters, one would expect to see reference to the consideration in the written reasons for decision, in particular where the matters are prescribed circumstances: see Kalala v MIMA at [23]. Yet there is no such reference. In these circumstances it is open to this Court to infer (and it is an easy inference to draw) that the delegate overlooked considering these matters. On this basis there was jurisdictional error.
In September 2005 a different delegate of the Minister made a decision not to revoke the cancellation of the applicant’s visa. The delegate gave written reasons for his decision: see CB 60-61. In the written reasons the delegate focused on the question whether the applicant gave false or misleading information to the Department. Specifically, at CB 60.6 the delegate asserted: “Your visa was cancelled on the basis that you provided misleading information to the Department.” The delegate then reviewed the evidence and concluded at CB 61.1:
The information which has subsequently come to hand shows this earlier information to be false. Therefore, a decision has been made not to revoke your visa cancellation.
First, s 131 of the Act provides that, even if there was a ground for cancelling a visa (eg non-compliance with s 101 of the Act), the delegate must consider whether to exercise a discretion to revoke the cancellation. The factors to be considered in the exercise of the discretion are the same factors to be considered in deciding whether to cancel a visa under s 109, including the factors prescribed by reg 2.43.
However, the delegate’s reasons for decision indicate that he decided not to revoke the cancellation merely because, in his opinion, the applicant gave “incorrect information” within the meaning of s 101 of the Act. Such reasoning overlooks the discretion mandated by s 131(1)(b) of the Act. On this basis the delegate fell into jurisdictional error.
Second, even if the delegate did not overlook the discretion mandated by s 131(1)(b) of the Act, the delegate “must have regard to” the circumstances prescribed by reg 2.41 of the Migration Regulations. On 27 July 2005 the applicant’s migration agent wrote a submission which addressed some of the matters prescribed by reg 2.41. (see CB 43-45) The delegate’s reasons for decision indicate that he failed to have regard to reg 2.41 or any of the matters prescribed by reg 2.41. On this basis, there was jurisdictional error.
Additionally, in their supplementary submissions, the applicants submit:
First, the first respondent says at paragraph 55 of its submissions dated 10 August 2006:
Section 109 is not relevant to the decision-making process under either s 128 (or s 129 or s 131 for that matter). Consequently there is no requirement for the delegates to have regard to any prescribed circumstances under s 109(1)(c) of the Migration Act when making their decision.
This statement is wrong for the following reasons:
a)The delegate purported to cancel the applicant’s visa because she was “satisfied that there is a ground for cancelling [the] visa under section 116” (see s 128(a)(i)), specifically s 116(1)(d).
b)The power to cancel a visa under s 116(1)(d) does not arise unless the delegate is satisfied that, if the applicant was in Australia, the visa “would be liable to be cancelled under Subdivision C”.
c)A visa is not “liable to be cancelled under Subdivision C” until the Minister has satisfied the conditions in s 109(1) of the Act, including “having regard to any prescribed circumstances”. Section 109 of the Act creates the liability to cancel a visa under Subdivision C.
d)In Sandoval v MIMA (2001) 194 ALR 71 at [31] Gray J stated:
The reference to subdivision C in s 116(1)(d) is therefore intended to import all of the provisions of subdivision C into the ground in s 116(1)(d), except those applicable only to someone who has entered Australia and been immigration cleared.
Gray J’s conclusion confirms the applicant’s position on this point.
Further, if the respondent’s submission is correct, then the letter from the Department to the applicant dated 9 June 2005 and enclosed decision (CB 39-42) was misleading because it directed the applicant to the wrong provisions of the Migration Act in the course of inviting the applicant to seek revocation of the cancellation decision. In these circumstances, the notification did not comply with s 129 of the Act: see Noeung v MIMA (2002) 125 FCR 503 at [72].
Second, for reasons explained in Sandoval v MIMA (2001) 194 ALR 71 at [61], the delegates in the present case were required to comply with MSI 368, which appears to be the replacement of MSI 316 in place at the time of the delegates’ decisions in the present case in 2005.
Paragraph 17.3.1 of MSI 340 prescribes matters which:
a)the delegate who cancelled the applicant’s visa was required to consider before cancelling the visa; and
b)the delegate who decided not to revoke the cancellation decision was required to consider before making his decision.
For reasons explained in paragraphs 45 to 52 of the Principal Submissions, the delegates failed to have regard to these matters.
Third, in paragraph 47(a) of the Principal Submissions it is stated:
There was an extraordinary delay between the applicant’s application for a visa (April 1998) and the grant of the visa (February 2004). If the delay was not the fault of the applicant or her father (which information the delegate had access to), this circumstance supported the exercise of the s 109 discretion not to cancel the applicant’s visa.
The documents in exhibit A1 and A2 support the following points:
a)The extraordinary delay between the applicant’s application for a visa in April 1998 and the grant of the visa in February 2004 was not the fault of the applicant or her father.
b)The extraordinary delay was due to matters within the control of the Department and Tribunal. Whether due to:
· a lack of financial, human or other resources; or
· oversight,
it remains the case that the extraordinary delay was due to matters within the control of the Department and Tribunal.
As stated in paragraph 48 of the Principal Submissions, if the delegate had considered this matter one would expect to see reference to such consideration in the delegate’s written reasons for decision. The absence of reference to this matter indicates that the Tribunal overlooked the matter.
Fourth, in Sandoval v MIMA at [60]-[65] Gray J, in reviewing a delegate’s decision to cancel a visa under s 116(1) of the Migration Act, considered the delegate’s reasons for decision and concluded that the delegate fell into jurisdictional error in exercising the discretion required by s 116(1). Gray J concluded at [63] that the delegate “did not carry out the process of exercising his discretion according to the directions given in MSI 316”. On the basis of the same reasoning process, the applicant in the present case says the delegates did not carry out the process of exercising their discretions according to:
a)s 109(1)(c) of the Act; and/or
b)MSI 340.
Further, the inadequacies in the delegates’ reasons for decision in the present case are clearer than the inadequacies in Sandoval v MIMA.
Fifth, in Chhuon v MIMA (2003) 198 ALR 500 at [54]-[57] Mansfield J, in reviewing a delegate’s decision not to revoke a visa cancellation under s 131(1) of the Act, considered the delegate’s reasons for decision and concluded that the delegate fell into jurisdictional error in exercising the discretion required by s 131(1)(b) of the Act. The inadequacies in the delegates’ exercise of discretion in the present case are clearer than in Chhuon v MIMA.
Sixth, see also Kai Feng Shu v MIMA [2003] FCA 791 at [34]-[35].
In relation to the relevant considerations issue the applicants submit as follows:
Regardless of the circumstances prescribed by reg 2.41, where the delegate was considering the exercise of the discretion under s 109 of the Act as to whether or not to cancel the applicant’s visa (and s 131(1)(b) of the Act as to whether to revoke the cancellation), there were three considerations which were so obvious and important to the exercise of the discretion that the delegate was bound to consider them. The three considerations were as follows:
a)First, a question is whether at the time the applicant signed the change of circumstances form in December 2003 she knew that she was giving (cf s 100 of Act) or intended to give (cf s 111 of Act) an incorrect answer. Absence of knowledge or intention does not avoid non-compliance with s 101 of the Act (see ss 100 and 111 of Act), but it is an obvious factor relevant to the exercise of the discretion under s 109 whether or not to cancel the visa.
b)Second, the evidence before the delegate indicated that in December 2003 the applicant continued to be dependent on her father. The fact that the applicant continued to be dependent on her father (even if she was engaged to be married) is an obvious factor in the present case (where the “incorrect answer” arose from the question whether or not the applicant was a dependent child of her father) relevant to the exercise of the discretion under s 109 whether or not to cancel the visa.
c)Third, there was an extraordinary delay between the applicant’s application for a visa (April 1998) and the grant of the visa (February 2004). Where a visa application includes a secondary applicant listed as a dependent child who is close to or over the age of 18, delay by the Department in processing the application is prejudicial to that secondary applicant’s visa application. In the present case if the delay was not the fault of the applicant or her father (which information the delegate had access to) but was the fault of officers or agencies within the control of the respondent, this factor was relevant to the exercise of the discretion under s 109 whether or not to cancel the visa.
The applicant asks this Court to find that the two delegates were required to consider each of the above three matters in the exercise of their discretions under s 109 and 131(1)(b).
The delegates reasons for decision indicate that they considered none of the above three factors.
On this basis, each delegate failed to consider one or more relevant considerations, giving rise to jurisdictional error.
Two additional matters dealt with in the supplementary submissions are as follows:
First, as indicated in paragraph 6(f) above, a further particular of this ground of review is that the delegates failed to consider the fact that in November 2003 the Tribunal made a decision that the applicant was a dependent child of her father.
Second, the applicant also relies on Sandoval v MIMA at [60]-[65].
On the revocation decision issue the applicants submit:
In relation to the decision dated 21 September 2005 not to revoke the cancellation of the applicant’s visa, the delegate, in considering whether “there is another reason why the cancellation should not be revoked” (s 131(1)(a) of Act), fell into jurisdictional error on two further grounds:
First, the delegate failed to have regard to the matters in the letter from the applicant’s migration agent dated 27 July 2005 (see CB 43-45) which went to the exercise of the delegate’s discretion, specifically paragraphs 14 to 18. If the delegate had regard to these matters, one would have expected to see reference to these matters in the delegate’s reasons for decision. The absence of reference to these matters suggests that the delegate did not have regard to these matters: see for example Singh v MIMA (2001) 109 FCR 152 at [58]-[71]; NAJT v MIMIA [2005] FCAFC 134 at [205]-[213]; and Chhuon v MIMIA (2003) 198 ALR 500 at [54]-[59].
Second, the delegate did not make the decision in good faith in the sense described in Chhuon v MIMIA (2003) 198 ALR 500 at [54]-[59].
On the issue of the extension of time the applicants rely upon their first submissions as follows:
The applicant requires an extension of time under s 477 of the Act. The question is whether “it is in the interests of the administration of justice” (s 477(2)(b)) to extend time. The discretionary factors relevant to this question are similar to the discretionary factors relevant to whether an applicant should be permitted to raise a new ground on an appeal not raised at trial. The factors are set out in cases such as VAAC v MIMIA (2003) 129 FCR 168 at [26]-[37] and NAJT v MIMA [2005] FCAFC 134 at [166]-[175]. Specifically:
a)One factor is the “explanation given by the applicant for failing” (VAAC at [26]) to lodge his application on time. In the present case the applicant’s solicitor gave an explanation in his affidavit sworn 21 February 2006. This Court should also take into account that s 477 in its current form commenced on 1 December 2005. Legal practitioners should be given some leeway in becoming familiar with the amendment.
b)A second factor is the “prospects of success” (VAAC at [26]) of the substantive argument on the judicial review application. The applicant contends that there are multiple errors in the decisions of the two delegates in this matter. The prospects of success are high.
c)A third factor is the prejudice to the applicant if time is not extended. The applicant has lost a visa as a result of gravely erroneous decision-making by officers of the Department. The errors follow inordinate delay by the Department and Tribunal in dealing with the applicant’s visa application. It would be ironic if the applicant was not granted an extension of time in circumstances where the Department and Tribunal delayed for so long.
d)A fourth factor is “the prejudice to the respondent” (VAAC at [26]) if time is extended. There is no prejudice.
The Minister relies upon supplementary submissions filed on 10 August 2006 and further submissions filed on 5 September 2006. The Minister filed virtually identical submissions in both proceedings and references to “the applicant” in them should be taken to be references to both applicants. Initial written submissions filed earlier on behalf of the Minister were found to be not apposite and were abandoned. In relation to the first ground of review (s.128 issue I) the Minister submits as follows:
In her first ground of review the applicant asserts that the delegate did not have power to cancel the applicant’s visa under s128 of the Migration Act because there was no ground for cancelling the visa.
This ground of review should be rejected for the following reasons.
The delegate had the power to cancel the applicant’s visa because there was an adequate ground for cancelling the visa when the first decision was made on 9 June 2005.
Section 128 of the Migration Act provides that:
If:
(a)the Minister is satisfied that:
(i) there is a ground for cancelling a visa under section 116: and
(ii) it is appropriate to cancel in accordance with this Subdivision; and
(b)the non‑citizen is outside Australia;
the Minister may, without notice to the holder of the visa, cancel the visa.
The delegate cancelled the applicant’s visa under s128 because she was satisfied that there was a ground for cancellation under s116(1)(d) of the Migration Act, namely, on the ground that the applicant had provided incorrect information[1], and because it was appropriate to do so in accordance with the Subdivision.
At the time the decision was made the applicant was a non-citizen outside Australia. The applicant asserts in her submissions that there was no ground for the delegate to cancel the applicant’s visa under s116 because, it is asserted, the applicant had already entered Australia in July 2004. Thus, it is submitted by the applicant, the applicant was not a person who “has not entered Australia” for the purpose of s116(1)(d).
This submission should be rejected. It has been accepted by the Federal Court that s128 and the provisions that followed that provision were designed to provide an independent general power for the Minister to cancel visas unconstrained by the presence of other cancellation powers provided under the Migration Act, in circumstances where the visa holder is outside Australia at the time of the cancellation. Thus s128 empowers the Minister to cancel the visa of a non-citizen who is outside Australia at the time of cancellation whether or not the non-citizen has been at some time in the past in Australia: see Cheaib v MIMA (1997) 75 FCR 308. This decision is binding on the Federal Magistrates Court.
Under s116(1)(d) of the Migration Act the delegate has the power to cancel a visa, among other things, if the applicant provides incorrect information.
Under s101 of the Migration Act no incorrect answers are to be given when completing an application under the Migration Act.
On 3 July 2000 the applicant advised she was not engaged to be married (at the time she was seeking a dependent visa). Subsequently, on 4 May 2005, the applicant advised that she considered herself to be engaged from July 2003.
Therefore when the applicant completed the Notification of Change of Circumstances Form on 15 December 2003, wherein she declared there had been no change in her circumstances since 3 July 2000, that information (or answer) was incorrect (and false). By providing incorrect information the applicant contravened s101 of the Migration Act. This contravention, namely providing incorrect information, provided the delegate with the power to cancel the applicant’s visa under s128 on 9 June 2005.
The applicant’s first ground of review does not disclose any reviewable error by the delegates and should be rejected.
[1] court book (“CB”) at 39.
The Minister responds by referring generally to the powers conferred on decision makers by s.128 and the Parliamentary intention in granting those powers. The Minister contends that the power of cancellation without notice was conferred specifically with the intention that it could be used to prevent a person who would otherwise have a right of entry from entering Australia and that there can be nothing illogical, unreasonable or perverse about the exercise of such a power based upon an analysis that the visa holder was outside Australia and might seek to enter.
Section 128 of the Migration Act, when read with s.118, confers a broad discretion to cancel unfettered by the constraints otherwise imposed upon cancellation decisions by subdivisions of the Act other than subdivision F. The discretion to cancel or not to cancel is available even in circumstances where cancellation would otherwise be mandatory[20]. Further, the opportunity to cancel a visa under subdivision F does not exclude the possibility that it would also be appropriate to cancel under a different subdivision[21]. The obligation under s.128(a)(ii) is to reach a state of satisfaction that the exercise of the broad and draconian power of cancellation so conferred is “appropriate”. It would be an invalid exercise of the power to limit one’s consideration to the fact that the visa holder is outside Australia. That is a separate and necessary criterion for the exercise of the power pursuant to s.128(b). It would be relevant to consider the possibility that the visa holder might seek to re‑enter Australia but a proper consideration of that issue necessitates a consideration of the consequence of that possibility occurring. If the relevant ground relied upon was, for example, the ground in s.116(1)(e) the consequence of a visa holder entering Australia would be obvious. In other cases the consequence may not be obvious and may require express consideration.
[20] Doukmak v Minister for Immigration at [49]
[21] Doukmak at [48]
In my view, it would not be “appropriate” to cancel under subdivision F if it would be more “appropriate” to cancel under subdivision C or subdivision D. There was no consideration of the relative merits of cancellation under any division other than subdivision F. Moreover, although the delegate stated that she was “concerned” that there was a possibility that the applicants might attempt to enter Australia if they were given prior notice of any cancellation she did not explain why she was concerned. What harm would result from the applicants’ re-entering Australia? The delegate’s decision is silent. It surely could not be a sufficient basis for the delegate’s concern that the applicants would seek to enjoy the rights available to any holder of a permanent resident visa. Indeed, that right is, in my view[22], protected by Article 12 of the International Covenant on Civil and Political Rights which provides:
1.Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2.Everyone shall be free to leave any country, including his own.
3.The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4.No one shall be arbitrarily deprived of the right to enter his own country.
[22] It certainly protects citizens and, logically, would also protect dual citizens and permanent residents
The answer must, in my view, lie in the operation of s.117(2) and s.128. If the applicants had been given notice of an intention to cancel and as a result entered Australia lawfully, cancellation would have become impossible under s.116. However, that would not of itself have affected the power to cancel under s.128 as that power is, as I have already noted, is unaffected by the limitations on the power conferred under s.116. The first delegate’s concern is only explicable (in the absence of any evidence of any concern relating to the applicants themselves should they enter Australia) as a concern that giving notice (as would be required if the cancellation procedure under subdivision C was followed) would probably result in the loss of the ability to cancel without notice under s.128, which relevantly depended upon the availability of a ground of cancellation under s.116 and the absence of the applicants from Australia. The delegate’s concern must have been that the presence of the applicants in Australia would render unavailable both the power of cancellation under s.116 (because of the operation of s.117(2)) and under s.128 (because of the requirement in s.128(b) that the non citizen be outside Australia.
If those were the only available powers of cancellation then the applicants could have no cause for complaint. It would be “appropriate” to exercise the power under s.128 if it appeared likely that otherwise there would not no power to cancel at all. But if the applicants had entered Australia the power of cancellation under subdivision C would have remained available It could not be “appropriate” to cancel a visa without notice if (as appears here) the only consequence of a failure to do so is that the non citizen would be able to enjoy procedural protections Parliament has afforded, and a right enjoyed under international law. There must be some other reason for the exercise of the power that undoubtedly exists, if it is not to be seen to be exercised capriciously and arbitrarily.
Seen in this light, it is probably open to me to conclude that the decision of the delegate was perverse, illogical and unreasonable in the Wednesbury sense. But it is unnecessary for me to reach such a dramatic conclusion. The first delegate was exercising a discretionary power. The power had to be exercised lawfully. It is well established that a decision maker will fall into jurisdictional error if he or she fails to give any meaningful consideration to something that the decision maker is bound to consider: NAJT v Minister for Immigration [2005] FCAFC 134 at [212]. The delegate was bound to consider whether the exercise of power was “appropriate”. That consideration, in the context of this case, where the applicants presented no apparent risk should they have re-entered Australia, was manifestly inadequate.
That establishes jurisdictional error.
It is not strictly necessary for me to consider the remaining grounds of review, but I shall do so for completeness, and in order to deal with the possibility that I might be found to have been wrong in my finding above.
Did the applicants give an “incorrect answer”?
The applicants contend that the question of whether or not they provided incorrect information is a jurisdictional fact and that they did not in fact give incorrect information. However, the applicants concede that they cannot succeed on this ground in the face of the decision of the Full Federal Court in SHJB v Minister for Immigration (2001) 134 FCR 43 at [14]-[22]. The argument is put protectively so as to preserve the applicants’ rights on appeal. I note the concession and reject this ground of review.
The argument is put in a somewhat different way in relation to the “date of decision” issue. The applicants contend that the question of whether or not they provided incorrect information needed to be considered as at the date of the decision of the MRT on 3 November 2003 and that they did not give an incorrect answer in relation to the period between then and when the change of circumstances form was signed on 15 December 2003. The applicants contend that any period prior to the decision of the MRT became irrelevant once the MRT had determined that the applicants met the criteria for a dependents visa by reference to their single status.
I cannot accept the Minister’s contrary contention that the relevant period for the consideration of changed circumstances was the period between the date the applicants completed form 47A[23] and the date they provided the notification of changed circumstances form[24]. There were obviously changed circumstances between those two dates and it would have been ludicrous for the Minister’s Department to enquire about them. The applicants could not seriously have been expected to rehearse all of the information that they had previously disclosed to the Minister’s Department and to the MRT which explained how their circumstances had changed since 2000. Over that period the applicants had been found by a delegate not to be dependent upon their father on 2 January 2001 and that decision was reversed by the MRT in its decision made on 3 November 2003. In asserting that there were no changed circumstances, the applicants could not possibly have been making an unqualified reference to the period between 3 July 2000 and 15 December 2003 because it was patently obvious that circumstances had changed dramatically. The applicants had been found not to be dependent and had subsequently been found to be dependent.
The MRT decision was based upon the information available to it at the time of its decision, including information from Monilta that she had a boyfriend and that her parents knew about it. She was contemplating marriage[25] but there was no commitment on the of part her parents[26]. Monica was less forthcoming than Monilta but the MRT saw no reason to distinguish between them. Her circumstances were materially the same as Monilta’s and, if she had been as forthcoming as Monilta, there still would have been no basis to distinguish between them.
[23] as it was then called, on 3 July 2000
[24] 15 December 2003
[25] SCB at 49
[26] SCB at 50
In the light of, and notwithstanding the information about the possible marriage of Monilta, the MRT found that the applicants were neither married nor engaged and in the cultural context in which they lived it would be expected that they remain living at home[27]. In reaching that conclusion the MRT took into account the policy contained in PAM 3 which states:
[27] SCB at 53
Females living at home
12. In Australia and similar cultures, an adult female living at home would not be regarded as dependent. However, there are circumstances where, for social or cultural reasons, a female may have no choice other than to remain at home and be denied independence. In these circumstances, officers need to establish whether dependence is by preference or whether the situation is imposed by outside forces and there is no choice involved for the individual. This could apply to unmarried or divorced women under the age of 25. Policy would not envisage concessions beyond this age because to try to satisfy all cultural norms would lead to arbitrary, inconsistent and unjust decision making and deny the acceptance of Australian cultural norms.[28]
[28] see SCB at 53
The applicants may not have had a complete understanding of what was expected of them in relation to the notice of changed circumstances forms sent to them. In its terms, the form only required completion if circumstances had changed. If circumstances had not changed the form did not require completion at all. It is true that in its letter providing the form[29], the Minister’s Department asked the applicants’ father to indicate on the form if there were no changed circumstances, but that is not what the form itself called for. Further, the departmental request was not addressed to the applicants, but their father. The applicants went beyond what was required of them in signing the forms and thus asserting that circumstances had not changed. Their action in doing so is explicable in terms of the request in the departmental letter, and the accompanying warning that visas might be refused pursuant to s.61 of the Migration Act (presumably notwithstanding the decision of the MRT) if the request was not complied with.
[29] SCB at 54
Having regard to the obvious changed circumstances between 3 July 2000 and 3 November 2003 the applicants’ assertion that there were no changed circumstances was only intelligible as a reference to the period from 3 November 2003, or alternatively, as a reference to an absence of previously undisclosed information for the whole period since the applicants’ father first applied for his visa. The only interpretation reasonably open in relation to the assertion is that the applicants were stating that, having been found to be dependent on the basis of their personal circumstances as disclosed to the MRT, that position remained unchanged. The applicants’ were certainly not saying that nothing had changed since they first applied for a visa. Obviously, much had changed. They were saying that they had nothing to add to what had been disclosed previously to the Minister’s Department and to the MRT. The delegate fundamentally misconstrued the applicants’ statement in her decision of 9 June 2005. She placed a construction on the statement that could not possibly have been intended. In effect, the delegate put words into the applicants’ mouths that they had not uttered. The conclusion reached by the first delegate[30] was simply not open to her on the material before her – or to which she should have had regard (see the discussion on the relevant considerations issue below). This rendered the decision unreasonable in a sense demonstrating legal error: Re Minister for Immigration; ex parte S20/2002 (2003) 198 ALR 59 per Gleeson CJ at [9]; Ou Yang v Minister for Immigration [2003] FCAFC 258. That also vitiates the first decision.
[30] see [13] above at (c)
The prescribed matters issue
The applicants contend that both delegates were required to have regard to the prescribed circumstances in s.109(1)(c) of the Migration Act and/or the prescribed matters in MSI 368. I reject this ground insofar as it depends upon s.109. I agree with and adopt for the purposes of this judgment the Minister’s submissions reproduced at [74] above. I also agree with, and adopt for the purposes of this judgment, the Minister’s submissions reproduced at [75] above to the extent that they relate to s.109.
Further, I disagree, in relation to the decision of the first delegate, with the applicants’ submissions reproduced at [62] and [63] above, to the extent that they relate to matters other than s.109. I have already found that it was open to the first delegate to conclude that it was “appropriate” to cancel the applicants’ visas without notice. Beyond that, the discretion conferred upon the first delegate was unfettered. She was not bound to have regard to anything outside subdivision F of the Migration Act. The matters complained of by the applicants in relation to this ground may require consideration in a different context but they were not considerations which were jurisdictional
pre-requisites pursuant to the Migration Act or Regulations. I reject this ground of review insofar as it relates to the decision of the first delegate.
The position is a little different in relation to the decision of the second delegate. The second delegate was relevantly required by s.131(1)(b) to revoke the cancellation if satisfied that there was a reason why the cancellation should be revoked (other than the non existence of a ground for cancellation). In Chhuon v Minister for Immigration (2003) 198 ALR 500 the Federal Court found that the delegate in that case had merely “rubber stamped” the initial cancellation decision and that the exercise of power had thereby miscarried. I accept, from that decision, that for a valid decision to be made under s.131, something more than a simple recitation of the decision of the first delegate was required. More generally, however, the discretion was “at large”. The matters complained of by the applicants might support a contention that the second delegate overlooked relevant considerations in exercising power pursuant to s.131(1)(b) but I cannot accept the contention that s.109 of the Act, or the Regulations, or the Migration Series Instructions, or indeed anything outside of subdivision F of the Act, established mandatory considerations.
I reject this ground of review.
The relevant considerations issue
In relation to this ground the applicants contend that both decisions are vitiated by error because a number of matters were overlooked by both delegates which they were bound to consider. In particular, the applicants assert that both delegates should have considered whether there was any intention to mislead and should have taken into account the delay that had occurred in dealing with the permanent resident visa applications, the issue of dependency in its proper factual and cultural context and the decision of the MRT.
The considerations referred to by the applicants in relation to this ground (and the previous ground) could have been relevant to a consideration by the first delegate of whether it was “appropriate” to cancel the visa. They could also have been relevant to a consideration by the second delegate whether there was any other reason to revoke the cancellation. I consider the revocation decision below. I have already found that the exercise of discretion by the first delegate miscarried. There was, however, no obligation on the first delegate to consider the requirements of subdivision C of the Migration Act or the Migration Regulations or the Migration Series Instructions.
The matters complained of by the applicants might hypothetically have been relevant to a consideration of whether it was more appropriate to consider cancelling the visas under subdivision C or subdivision D, but, that was not the exercise of power that was being considered.
The first delegate’s exercise of power miscarried before she could reach a stage in her consideration of the exercise of power that might have given rise to a need to have regard to those matters.
The issue of delay by the Department and the MRT, the issue of dependency and the decision of the MRT on it may all also have been relevant to the consideration that might have been given to the issue of appropriateness by the first delegate. However, the first delegate fell into error before getting to that stage. The decision of the first delegate miscarried, as I have already found, in relation to s.128(a)(i). I do accept, nevertheless, that in determining whether a ground for cancellation existed under s.116(1)(d) the first delegate overlooked relevant material in failing to pay any regard to the decision of the MRT which, if it had been considered, put in proper context the assertion by the applicants that there were no changed circumstances and also put in proper context the question of whether that assertion was false or misleading. It was because the assertion by the applicants that there were no changed circumstances could only be properly understood by reference to the MRT decision, that that decision became a necessary part of a proper consideration for the determination of whether a ground of cancellation existed under s.116(1)(d).
I find that by failing to take into account the decision of the MRT the first delegate fell into jurisdictional error, by overlooking relevant material which, if it had been considered, could well have led to a different conclusion on that issue: VAAD v Minister for Immigration [2005] FCAFC 117.
The revocation issue
The relevant parts of the decision of the second delegate are reproduced at [17] above. The applicants assert that the second delegate, in considering whether there was another reason why the cancellation should not be revoked, fell into jurisdictional error by failing to have regard to the matters raised on behalf of the applicants by letter dated 27 July 2005[31] and did not make a decision in good faith in the sense described in Chhuon. The Minister contends that the letter of 27 July 2005 was taken into account and that the second delegate’s decision was more than a mere “rubber stamping” of the cancellation decision.
[31] see [15]-[16] above
I reject the contention that the second delegate did not act in good faith but I find that there was no meaningful consideration of the issues of whether a ground for cancellation existed or whether there was any other reason to revoke the cancellation. The revocation decision was more than a mere “rubber stamping” of the cancellation decision but it was not much more. In relation to the first question the second delegate fell into the same errors as the first delegate[32]. Further, while the second delegate had regard to the representations made on behalf of the applicants, the delegate failed to take into account that the substance of those representations had, in effect, previously been accepted by the MRT which had found that the applicants were dependent upon their father notwithstanding the marriage then contemplated by Monilta. The second delegate, by overlooking that relevant material, thus fell into the same jurisdictional error as the first delegate: see VAAD (op cit). The intellectual process that should have been apparent in the decision of the second delegate to demonstrate meaningful consideration of the representations, and to draw the link to the MRT decision, was lacking. That in itself is sufficient to establish jurisdictional error: Singh v Minister for Immigration (2001) 109 FCR 152 at [58]-[71]; NAJT v Minister for Immigration (op cit).
[32] see [110] and [118] above
The second delegate also failed to pay any regard to the issue of delay by the Department in granting the visas and failed to pay any regard to the considerations set out in paragraph 24.2.1 of MSI 368. However, while those considerations ought to have been taken into account in a thoroughly reasoned decision[33], and on the basis of sound administration, they were not relevant considerations that the second delegate was bound to take into account. The failure to take them into account was not therefore a jurisdictional error: Minister for Immigration v Huynh [2004] FCAFC 256 at [71].
[33] It was remarkable how quickly the Department moved to cancel the visas after taking six years to grant them.
It is because the consideration given to the applicants’ representations was manifestly inadequate and overlooked relevant material and not because of bad faith, that the exercise of power by the second delegate miscarried.
This also establishes jurisdictional error.
I find that both the decisions of the first delegate made on 9 June 2005 to cancel the applicants’ visas and the decisions of the second delegate on 21 September 2005 not to revoke the cancellations are vitiated by jurisdictional error. Neither is a privative clause decision.
The applicants should receive relief in the form of constitutional writs of certiorari. It is a matter for the Minister whether any further consideration of the issue of cancellation of the applicants’ permanent residence visas is warranted. In the meantime, and to avoid any doubt as to whether the applicants are entitled to enjoy their right to re-enter and live in Australia, the applicants should also receive declaratory relief.
I will hear the parties as to costs.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 27 October 2006
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