Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 886
•13 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 886
File number(s): MLG 536 of 2024 Judgment of: JUDGE J YOUNG Date of judgment: 13 September 2024 Catchwords: MIGRATION – application for judicial review – where delegate of the first respondent cancelled the applicant’s student (subclass 500) visa (Visa) under s 116(1)(d) of the Migration Act 1958 (Cth) – where applicant not immigration cleared – consideration of whether s 109 applies when considering to cancel visa under s 116(1)(d) of the Migration Act 1958(Cth) – found that the provisions of s 109 do not apply to the exercise of power under s 116(1)(d) – application dismissed. Legislation: Migration Act 1958 (Cth) ss 97A, 99, 101, 102, 103, 104, 105, 107, 108, 109, 116(1)(d), 118A(1), 119, 120, 172.
Migration Regulations 1994 (Cth) reg 2.41
Cases cited: Commonwealth of Australia v Okwume (2018) 263 FCR 60
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [202] HCA 12
Okwume v Commonwealth of Australia [2016] FCA 1252
Sandoval v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 71: [2001] FCA 1237
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 14 August 2024 Place: Melbourne Counsel for the Applicant: Mr Aleksov Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr Solomon-Bridge Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
MLG 536 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURPREET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
13 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The Application filed 8 March 2024 be dismissed.
3.The Applicant pay the First Respondent’s costs in an amount to be fixed, if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG:
Before the Court is an Application for review of a decision of a delegate (Delegate) of the first respondent (Minister) to cancel the applicant’s student (subclass 500) visa (Visa) under s 116 of the Migration Act 1958 (Cth) (Act).
For the reasons that follow, the Application is dismissed.
BACKGROUND
The applicant is a citizen of India.
On 22 November 2022, the applicant was refused a visa from Canada.
On 5 January 2023, the applicant lodged an application for the Visa whilst offshore. The Visa application form recorded the following question (Question) and answer (Answer):
Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?
No
On 19 January 2023, a delegate of the Minister granted the applicant the Visa.
On 3 February 2024, the applicant arrived in Australia at Brisbane International Airport as the holder of the Visa. Upon arrival, the applicant was questioned regarding his immigration and visa history. The applicant made admissions to having previously been refused a visa from Canada (Canadian Visa Refusal).
At 11.56pm on 3 February 2024, the applicant was provided with a notice of intention to consider cancellation (Notice of Intention) of the Visa. At 12.07am on 4 February 2024, an interview was held with the applicant during which he submitted that the Visa should not be cancelled as he had completed a Certificate IV in Commercial Cookery, he wanted to complete his Diploma of Hospitality Management so he could “face his father” and that he wanted to set up a business in India.
At 12.35am on 4 February 2024, the Delegate decided to cancel the applicant’s Visa under s 116(1)(d) of the Act because they were satisfied a ground exists at s 101 of the Act to do so (Delegate’s Decision). In determining whether to cancel the Visa, the Delegate had consideration to the applicant’s representations, whether the applicant had a compelling need to travel to Australia, the extent of compliance with the Visa conditions, the degree of hardship that may be caused to the applicant if the Visa is cancelled, whether there were any extenuating circumstances that led to the grounds for cancellation existing, the applicant’s behaviour with the Department of Home Affairs (Department), and the legal consequences of the cancellation of the Visa.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Delegate’s Decision on 8 March 2024. The Application contained the following grounds for judicial review (without amendment):
1.The Delegate failed to consider whether the Applicant would have been granted the student visa had the incorrect information not been provided and instead the correct information had been provided, in connection with the Applicant’s visa application and visa grant.
PARTICULARS
a.The delegate referred to s 116(1)(d) and s 101 as the basis for cancellation.
b.However, the delegate failed to identify that a cancellation under s 101 actually takes place under s 109, and the delegate failed to consider the mandatory requirements under s 109(1) before deciding to cancel the Applicant’s visa.
c.The subject matter, scope and purpose of these provisions indicate that Parliament did not intend to permit cancellation of visas just because of incorrect information having been supplied, without the delegate considering whether the incorrect information would have had any bearing on the grant of the visa in the first instance.
d.Most importantly, s 109(1)(c) and reg 2.41 prescribe mandatory relevant considerations.
e.Reg 2.41(c) requires a delegate to consider “whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document, which he failed to do so.
2.The delegate failed to consider reg 2.41(e) being the current circumstances of the applicant in particular that the applicant had family (including children) in India (strong incentive to leave Australia).
An affidavit annexing a copy of the Delegate’s Decision was filed in support of the Application. Written submissions were also filed on 16 July 2024.
The Minister filed a Response on 13 March 2024. The Response sought orders that the Application be dismissed on the basis that it does not establish any jurisdictional error in the Delegate’s Decision. The Minister also filed written submissions on 7 August 2024 and a joint list of authorities on 6 August 2024.
The hearing took place on 14 August 2024.
CONSIDERATION
The substantive and procedural requirements for the cancellation of a visa are set out in Subdivisions C, D and E of Division 3 of Part 2 of the Act.
Section 116(1)(d) is contained in Subdivision D and provides as follows:
Power to cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(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;
…
Subsections (2) and (3) of s 116 are not presently relevant.
Section 116(1)(d) empowers the Minister to cancel a visa of a person who has not been immigration cleared if the visa would be “liable to be cancelled under Subdivision C”. It is uncontested that the applicant was not immigration cleared. As set out above, the Delegate relied upon s 101 contained in Subdivision C as the ground upon which the applicant’s Visa was cancelled. Section 101 provides as follows:
Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
It is also uncontested that the applicant did not comply with s 101 when he failed to disclose the Canadian Visa Refusal.
The applicant submits that “liable to be cancelled under Subdivision C” means cancelled in accordance with Subdivision C. Accordingly, the applicant submits that all of the provisions of Subdivision C, and most presently relevant, those of s 109(1)(c), were required to be complied with by the Delegate. It is uncontested that in cancelling the applicant’s Visa the Delegate did not comply with s 109(1)(c). The applicant submits that in those circumstances the applicant’s Visa was not “liable to be cancelled under Subdivision C” and the power in s 116(1)(d) was not enlivened. For the following reasons, I reject those submissions.
Section 109 is contained in Subdivision C. Subdivision deals with persons who have been “immigration cleared”: see ss 107, 172 of the Act. I adopt the following summary of the relevant provisions of Subdivision C contained in the Minister’s submissions as follows:
(1)any information that a non-citizen gives or provides to the Minister in relation to the non-citizen’s application for a visa is taken for the purposes of, inter alia, ss 100 and 101(b) to be an answer to a question in the non-citizen’s application form: s 99;
(2)an answer to a question is incorrect even though the person who gave or provided the answer did not know that it was incorrect: s 100;
(3)a non-citizen must fill in or complete his or her application form for a visa in such a way that no incorrect answers are given or provided: s 101(b);
(4)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 s 101, the Minister may give the holder a written notice of that matter: s 107; and
(5)the Minister is then to consider any response given by the visa holder and decide whether there was non-compliance by the visa holder in the way described in the notice: s 108.
Section 109(1) then provides:
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.
The prescribed circumstances for the purposes of s 109(1)(c) are set out in reg 2.41 of the Migration Regulations 1994 (Cth) (Regulations) as follows:
2.41Whether to cancel visa – incorrect information or bogus document (Act s 109(1)(c))
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c)whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d) the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f)the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g)any other instances of non-compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non-compliance;
(j)any breaches of the law since the non-compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
Note:Under s 109 of the Act, the Minister may cancel a visa if there was non-compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.
The applicant relies particularly on reg 2.41(c) and (e) of the Regulations.
As to the meaning of “liable to be cancelled” as used in s 116(1)(d), I consider this phrase is capable of more than one meaning. The Oxford English Dictionary provides the following definition of “liable”:
Law. Bound or obliged by law or equity, or in accordance with a rule or convention; answerable; legally subject or amenable to.
In light of the provisions of Subdivision C, D and E, when read together and as a whole, I consider that the phrase “liable to be cancelled” as used in s 116(1)(d) means amenable to cancellation under Subdivision C, in the sense that a substantive ground exists in Subdivision C for potential cancellation (being non-compliance with ss 101, 102, 103, 104 and 105); rather than cancellation in accordance with the totality of the provisions of Subdivision C as submitted by the applicant. The provisions of Subdivision C, D and E and their interaction are addressed below.
Section 116(1)(d) is found in Subdivision D which is concerned with visa holders who have not yet entered Australia or have not been immigration cleared. Subdivision E is headed “Procedure for cancelling visas under Subdivision D in or outside Australia” and is stated to be “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”: s 118A(1). The “matters” that Subdivision E deals with are “if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116”: s 119.
Sections 119 and 120 provide as follows:
119 Notice of proposed cancellation
(1)Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must, in writing, notify the holder that there appear to be grounds for cancelling it and:
(a)give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b)invite the holder to show within a specified time that:
(i) those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.
(2) The notification under subsection (1) must be given in the prescribed way.
(4) The other provisions of this Subdivision do not apply to a cancellation:
(a) under a provision other than section 116; or
(b) to which Subdivision F applies.
120 Certain information must be given to visa holder
(1)In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or part of the reason, for cancelling a visa; and
(b)is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and
(c) was not given by the holder; and
(d) was not disclosed to the holder in the notification under section 119.
(2) The Minister must by written notice:
(a) give particulars of the relevant information to the holder; and
(b) set out why it is relevant to the cancellation; and
(c) invite the holder to comment on it.
(3) The notice under subsection (2) must be given in the prescribed way.
Subdivision E is therefore an exhaustive statement of the procedural fairness requirements to be observed when the Minister is considering cancelling a visa under s 116 of the Act in respect of a visa holder who has not been immigration cleared.
This is to be contrasted with the provisions of Subdivision C which apply when the Minister is considering cancelling a visa of a person who has been immigration cleared. In such circumstances the requirements of ss 107 to 109 must be complied with.
Those provisions provide as follows:
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.
107APossible non-compliance 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.
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.
109Cancellation 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.
Pursuant to s 97A of the Act, those requirements are taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters that Subdivision C deals with. As was observed by Charlesworth J in Okwume v Commonwealth of Australia [2016] FCA 1252 (Okwume) at [149] the requirements of the natural justice rules prescribed in Subdivision C affecting a person who has been immigration cleared are more generous towards the visa holder than those prescribed in Subdivision E, affecting a person who has not been immigration cleared.
In my view, to conclude as the applicant contends that the provisions of s 109 apply to a cancellation under s 116(1)(d), would fail to give effect to the materially different notice requirements contained in ss 119 and 107 and would also be inconsistent with the provisions of ss 97A and 118A(1). The provisions must be read together and as a whole and each given work to do. When one does so, I consider they evince a clear intention that whether a visa may be cancelled under s 116(1)(d) for incorrect information being given by the visa holder (as was the case here under s 101) is to be determined in accordance with the provision of Subdivision E, including ss 119 and 120. The procedures in ss 107 to 109 do not apply.
In Okwume, Charlesworth J considered the cancellation of the applicant’s visa for having presented a bogus document under s 103 of Subdivision C. As the applicant had not been immigration cleared the relevant cancellation power arose under s 116(1)(d). In considering the cancellation of the applicant’s visa and detention, Charlesworth J held that:
(1)the natural justice hearing rules prescribed in Subdivision C (affecting a person who has been immigration cleared) “are more generous towards the visa holder than those prescribed in Subdiv E” (affecting a person who has not been immigration cleared) (at [149]);
(2)there was “a clear intention that the question of whether a person in Mr Okwume’s position (not being immigration cleared) has contravened s 103 of the Act is to be determined in accordance with the procedures prescribed in Subdiv E” (at [149]);
(3)thus, the “procedures prescribed in s 107 to s 109 of the Act do not apply” to a person who is not “immigration cleared” (i.e. for whom cancellation under s 116(1)(d) is being considered) (at [149]); and
(4)“liable to be cancelled under” in s 116(1)(d) therefore (at [144]):
…requires that there be grounds to cancel the visa on a substantive ground prescribed in Subdiv C, with the existence of such grounds to be established in accordance with the procedure governing decisions under Subdiv D, rather than in accordance with the procedures prescribed in Subdiv C itself.
(Emphasis added)
Charlesworth J’s judgment was affirmed on appeal: Commonwealth of Australia v Okwume (2018) 263 FCR 60.
In Sandoval v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 71: [2001] FCA 1237 (Sandoval) the applicant’s visa was cancelled on two bases, including s 116(1)(d) for providing incorrect information in the visa application form under s 101 of Subdivision C. In considering the validity of the cancellation decision and the interaction between Subdivisions C and D, Grey J held that:
(1)“…The reference to subdiv C in s 116(1)(d) is therefore intended to import all of the provisions of subdiv C into the ground in s 116(1)(d), except those applicable only to someone who has entered Australia and been immigration cleared” (at [31]); and
(2)“…Sections 107, 108 and 109 are therefore inapplicable [to cancellation under s 116(1)(d)], as they contain procedural safeguards applicable only to visa holders who have entered Australia and had been immigration cleared” (at [32]).
The applicant submits that Okwume and Sandoval did not specifically consider the provisions of s 109(1)(c). The applicant submits that Okwume and Sandoval dealt exclusively with procedural issues and are therefore not authority for the proposition that s 109(1)(c) does not apply to cancellation under s 116(1)(d). The applicant contends that s 109(1)(c) is a substantive matter and not a procedural matter and therefore the Minister is required to comply with it when cancelling a visa under section 116(1)(d). The applicant also relied upon Grey J’s comments in Sandoval at [31] where he said:
Counsel for the Minister contended that the reference in s 116(1)(d) to Subdiv C is to be taken not as a reference to the whole of Subdiv C, but merely as a reference to a ground or “trigger” for cancellation of a visa to be found in Subdiv C. If the legislature had intended to accomplish only this, it is difficult to see why it chose to use the wording it did in s 116(1)(d). It would have been simpler to specify as a ground for cancellation in s 116 the fact that a visa holder had failed to answer a question in an application form or a passenger card, given an incorrect answer in an application form or a passenger card, or given a bogus document. It may have been necessary to make provisions mirroring those in ss 99 and 100, so as to extend the meaning of the word “answer” to cover all information provided, and so as to make it clear that incorrectness in an answer is not confined to deliberate incorrectness. Instead, the legislature chose to rest the ground in s 116(1)(d) on liability of the visa to be cancelled under Subdiv C. The reference to Subdiv C in s 116(1)(d) is therefore intended to import all of the provisions of Subdiv C into the ground in s 116(1)(d), except those applicable only to someone who has entered Australia and been immigration cleared.
I accept that s 109(1)(c) was not expressly referred to in either Okwume or Sandoval. However, I reject the submission that as a result those authorities do not stand for the proposition that s 109(1)(c) does not apply to cancellation under s 116(1)(d). Firstly, both decisions contain clear and unequivocal statements that s 109 does not apply to the exercise of power under s 116(1)(d). Subsection 109(1)(c) is a subsection of s 109. Further, as set out above, the subsections of s 109 are conjunctive. Secondly, both decisions identify the differing notification requirements contained in Subdivision C and Subdivision E and the differing classes of persons to whom those provisions apply. It is in this context, and following this analysis, that both authorities conclude that s 109 does not apply to the exercise of power under s 116(1)(d). I respectfully concur with that analysis and conclusion. Thirdly, I am unable to see how, as contended by the applicant, s 109(1)(c) is said to apply in the exercise of power under s 116(1)(d) but s 109(1)(a) and (b) are conceded not to. The requirements of s 109(1)(a)-(c) are conjunctive, as evidenced by the use of the word “and” between the subsections. Each element must therefore be satisfied. The construction advanced by the applicant does not accord with the plain and express language of the statute. For the same reasons, I do not consider anything turns on the distinction sought to be drawn by the applicant between procedural and substantive matters. Fourthly, such a construction cannot, in my view, be sustained in light of s 118 of the Act. That section relevantly provides as follows:
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);
…
are not limited, or otherwise affected, by each other.
Accordingly, the power under s 116 is not limited or otherwise affected by s 109, which includes s 109(1)(c).
As to the applicant’s reliance on Grey J’s comments in paragraph [31] of Sandoval, as set out in paragraph [36] above, I respectfully disagree with his Honour’s comments as to the language used in s 116(1)(d). However, irrespective, his Honour concluded that ss 107, 108 and 109 apply only to persons who have been immigration cleared and the provisions of Subdivision E apply to persons which have not been so cleared. That finding is entirely consistent with that of Charlesworth J in Okwume.
Accordingly, I find that neither the provisions of s 109(1)(c) nor reg 2.41 (including regs 2.41(c) and (e)) apply to a cancellation under s 116(1)(d). Accordingly, the Delegate was not required to have regard to those provisions and no error arose because of the failure to do so.
For completeness, I also reject the applicant’s submissions that the “mere fact” of the Canadian Visa Refusal could not have had any material bearing on the decision to grant the applicant the Visa. I accept the Minster’s submission that noting the Delegate who cancelled the Visa was different to the delegate who granted it, it cannot now be speculated by the applicant in relation to reg 2.41(c) that the fact of the Canadian Visa Refusal had no material bearing on the decision to grant the Visa. It is evident from Attachment A to the Notice of Intention where it states that “You could not provide any further information regarding why you were refused a Canadian visa”, that the cancelling Delegate was interested to know why the Canadian visa had been refused only a few weeks before the applicant’s application for the Visa. Further, in light of the inclusion in the Visa application form of the Question, it cannot be sensibly speculated that the Answer was of no import.
Finally, I also reject the applicant’s submission that consideration of reg 2.41(e) would have led to the realisation that the applicant had a child in India which presented a strong incentive for the applicant not to overstay and that might have been a compelling matter for the Delegate to consider. Firstly, the applicant was asked why the Visa should not be cancelled and, while referring to other identified personal circumstances, he did not rely upon his incentive to return and not overstay by reason of his child in India. Secondly, the Delegate accepted that the purpose of the applicant’s travel was to “complete a diploma which will allow hi[m] to set up a business in India”. As such, there is no realistic possibility that the decision would have been different if the Delegate had considered reg 2.41(e) as contended by the applicant, as the Delegate accepted the applicant’s purpose for travel (and that he was therefore a genuine temporary entrant) and his intention to return to India. Accordingly, this consideration was not material: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [202] HCA 12.
DISPOSITION
For the reasons set out above, the Application must be dismissed.
The Minister seeks that the applicant pay its costs. I shall order that the applicant pay the Minister’s costs in an amount to be fixed if not agreed.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 13 September 2024
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