Federal Court of Australia

Contreras v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 154

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

OVERVIEW

1    The appellant, Ms Contreras, is a Mexican national. She is the former partner of an Australian citizen, with whom she has a child. The child is a minor and is referred to within as Child A. Child A is an Australian citizen. He resides with the appellant and spends time with and communicates with his father. That arrangement is reflected in parenting orders made by consent by the Federal Circuit Court (‘FCC’) under the Family Law Act 1975 (Cth) (‘Family Law Act’). Child A is also the subject of an airport watch list order which will prevent him leaving Australia while it is current. The appellant will likely be removed from Australia consequential on the cancellation of her partner visa.

2    At issue in this appeal is the cancellation of the appellant’s partner visa in circumstances where the Minister exercised the power of cancellation having decided that the appellant had not complied with the obligation to complete her visa application forms so that no incorrect answers were given or provided and having considered the appellant’s response to a statutory notice about the alleged non‑compliance and the relevant prescribed circumstances: see ss 101(b) and 109 of the Migration Act 1958 (Cth) (‘Act’).

3    The Minister’s conclusion as to the appellant’s non-compliance focussed on answers she had given in the negative to questions directed to eliciting information about two topics — first, past convictions and second, charges for any offence currently awaiting legal action — in her two successive visa applications which she had certified to be correct.

4    Prior to cancellation of the visa, the appellant was provided with, and responded to, notices given under s 107(1) of the Act about possible non-compliance (‘s 107 notices’). There were no material differences between the notices. The notices communicated that the Department of Immigration and Border Protection (‘Department’) had received non-disclosable information that the appellant was wanted in the United States of America for marijuana trafficking and that her visa applications included incorrect answers to the questions set out at [16] and [18] below. The notices also communicated the intention to consider cancellation of the appellant’s visa under s 109 of the Act.

5    The Minister’s decision to cancel the appellant’s partner visa was affirmed by the second respondent (‘Tribunal’). An application for review of the Tribunal’s decision was then dismissed by the FCC: Contreras v Minister for Immigration & Anor [2019] FCCA 2999 (‘J’). This is an appeal from that decision.

STATUTORY PROVISIONS

6    The relevant statutory provisions in the Act in relation to providing information in visa applications are as follows:

100 Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

101 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.

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.

105 Particulars of incorrect answers to be given

(1)    If a non-citizen becomes aware that:

   (a)    an answer given or provided 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 or provided, 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.

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.

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.

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.

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.

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.

7    Regulation 2.41 of the Migration Regulations 1994 (Cth) (‘Regulations’) then prescribes the following circumstances the Minister must have regard to before cancelling the visa for the purposes of s 109(1)(c) of the Act:

(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.

8    Sections 101 and 105 of the Act make reference to “incorrect” answers, and s 108 requires the Minister to decide whether there was non-compliance “in the way described in the notice”, referring back to s 107(1)(a) which in turn refers to the Minister “giving particulars of the possible non-compliance”.

9    It is important to appreciate that the process under s 107 enables the holder of a visa to respond to the notice given, and where the holder disputes the non-compliance, then the holder is given the opportunity to show there was compliance, or in any event, why the visa should not be cancelled; if the holder accepts non-compliance then the holder is given the opportunity to show why the visa should not be cancelled.

THE CIRCUMSTANCES IN THE CASE UNDER APPEAL

10    At the outset we should indicate that the “non-compliance” referred to in this appeal is a breach of s 101(1)(b) of the Act: filling in or completing the application form in such a way that incorrect answers are given or provided. Any particulars of this non-compliance (as mentioned in s 107(1)(a)) and the decision needed to be made by the Minister as to whether there was non-compliance by the visa holder “in the way described in the notice” relate to the fact of an incorrect answer being given or provided. The requirement under the Act to particularise the alleged non-compliance means that the answer that is alleged to be incorrect and the basis for the assertion of non-compliance, namely, the nature of the incorrect answer, must both be identified. In this case, the first requirement was satisfied in the s 107 notices by identifying the relevant questions in the appellant’s visa applications which had sought information in relation to past convictions and charges for crimes or offences in any country and the appellant’s answers to those questions. The latter requirement was adequately covered by informing the appellant that the Department had received non-disclosable information that the appellant was wanted in the United States of America for marijuana trafficking.

11    We will return to the application of these provisions later by reference to the answers given by the appellant on the application forms, as well as the s 107 notices given to the appellant and her response.

12    However, we should immediately deal with the submission of the appellant that notices given under s 107 must be sufficient to ensure the visa holder understands the allegation of non-compliance and is able to meaningfully respond, and that the notices given to the appellant (which are set out in detail below) did not meet this requirement. Assuming this is a legal requirement of a notice under s 107, then, as the facts in this appeal fully demonstrate, it is clear that the appellant was able to and did meaningfully respond to the notices. The particulars given in the notices identifying the questions answered incorrectly by the appellant in her visa applications put the appellant in a position to understand and respond to the issues requiring determination, which she availed herself of during the relevant enquiry. Any submission that, in the circumstances of this appeal, the notices were not effective to particularise the possible non-compliance is unsustainable.

GROUNDS OF APPEAL

13    The grounds of appeal brought by the appellant are as follows:

(1)    The [FCC] erred by failing to find that the Tribunal failed in its statutory task under s 101(b) of the Act, namely by:

(a)    asking itself the wrong question being, was Ms Contreras ever the subject of a charge or warrant, or is she 'wanted'?;

(b)    failing to ask itself the right question being, was it incorrect for Ms Contreras to give information that she was not, as at the date each visa application form was completed, the subject of a charge that was at that time 'currently awaiting legal action'?

(2)    The [FCC] erred by failing to find that the Tribunal took into account an irrelevant consideration, namely whether:

(a)    Ms Contreras knew her relevant answers were incorrect (see s 100 of the Act);

(b)    Ms Contreras' answer was deliberately or inadvertently incorrect (see s 111 of the Act).

(3)    The [FCC] erred by failing to find that the Tribunal erred or acted beyond power by making a decision which had the effect of:

(a)    frustrating, or was otherwise contrary to, a pre-existing order of a court, namely the final parenting order of the [FCC]; and/or

(b)    ignoring a finding of, or making an inconsistent finding with, the [FCC], as to what was in Ms Contreras' young son's best interests.

(4)    The [FCC] erred by failing to find that the Tribunal erred by making an illogical decision having regard to the terms of the [FCC’s] order, especially the record of an 'Airport Watch List Order prohibiting [Ms Contreras' young son] from leaving the Commonwealth of Australia'.

14    We will address each in turn.

GROUNDS 1-2 OF THE APPEAL

Factual background

Answers in visa applications

15    We mention both the appellant’s student and partner visa applications, but the appeal was conducted on the basis that there was no relevant difference in the approach we should take in determining the appeal by reference to either application.

16    In her application for a student visa in December 2011, the appellant was asked:

have you, or any member of your family unit included in this application, ever:

•    been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?

•    been charged with any offence that is currently awaiting legal action?

17    Both questions were answered “no”. The appellant also certified that “the information supplied on or with this form is correct”.

18    In her application for a partner visa in February 2013, the appellant was asked substantially the same questions, and again answered “no”. The appellant certified that the information supplied was “complete, correct and up-to-date in every detail”.

The s 107 notices

19    On 1 July 2015, 5 August 2015 and 27 August 2015, a delegate of the Minister sent the appellant notices of intention to consider cancellation under s 109 of the Act. The specified “particulars of the possible non-compliance” (for the purpose of s 107(1)(a)) were that the appellant did not comply with s 101(b) of the Act by providing incorrect answers at Q58 and Q76 in the student visa application, and Q71 and Q86 in the partner visa application. The notices stated that the delegate of the Minister had received non-disclosable information that the appellant was wanted in the United States of America for marijuana trafficking.

20    The notice sent on 1 July 2015 included the following information:

Particulars of the possible non-compliance:

On the material presently before me I consider that there has been non-compliance with the following section(s) of the Migration Act 1958:

Section 101(b)

This provision relevantly provides that a 'non-citizen must fill in his or her application from in such a way that …no incorrect answers are given or provided.’

By operation of section 99 of the Act, not only must there be no incorrect answers on the application form itself, there must also be no incorrect answers in any information that a non-citizen gives, causes to be given or that is given on his or her behalf (whether in writing, or orally) to the Minister, an officer or a person or tribunal reviewing a decision under the Act ln relation to the non-citizen’s application for a visa.

You did not comply with s 101(b) of the Act because, in your "Application for a student visa" lodged on 31 January 2012, you provided a number of incorrect answers:

Question 58 which asks: “Have you, or any member of your family unit include in this application ever:

•    Been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?

•    Been charged with any offence that is currently awaiting legal action?

You answered: “No” to these questions

You also signed the declaration at question 76 which states:

“I certify the information supplied on or with this form is correct.”

You did not comply with s 101(b) of the Act because in your Form 47SP “Application for migration to Australia by a partner” lodged on 25 March 2013, you provided a number of incorrect answers:

Question 71 which asks: “Have you or any other person included in this application, ever:

•    Been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?

•    Been charged with any offence that is currently awaiting legal action?

You answered: “No” to these questions.    ·

You also signed the declaration at question 86 which states:

“I declare that the information I have supplied in this application is complete, correct and up-to-date in every detail.”

The Department has received non disclosable information as defined under s 5(1) of the Act, that you are wanted in the United States of America for marijuana trafficking.

[…]

Regulation 2.41 of the Migration Regulations 1994 sets out the matters which the delegate must consider:

•    The correct information;

•    the content of the genuine document (if any)

•    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;

•    the circumstances in which the non-compliance occurred;

•    the present circumstances of the visa holder;

•    the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of the Division 3 of Part 2 of the Act;

•    any other instances of non-compliance by the visa holder known to the Minister;

•    the time that has elapsed since the noncompliance;

•    any breaches of the law since the non-compliance and the seriousness of those breaches; and

•    any contribution made by the bolder to the community.

You should address these matters and any other matter you think relevant in your response.

Response to the notices

21    The appellant (through her migration agent) responded to the s 107 notices on or around 10 September 2015.

22    The appellant’s migration agent stated that the appellant had been involved in a criminal activity as a result of being coerced by her ex-husband and his friends to be involved in bringing marijuana into the United States of America. The migration agent stated that the appellant had been arrested in Texas for alleged marijuana trafficking, had attended a court hearing, and was advised to return to the court at a later date but was threatened by her ex-husband and his friends not to return.

23    It was admitted in the response that the appellant had provided incorrect answers in both visa applications and thereby failed to comply with s 101 of the Act, but the migration agent stated that the appellant had trusted Mr Hamish McColl, the appellant’s then-partner and sponsor for her partner visa application, to provide correct answers in completing the application on her behalf. An attached statement of the appellant dated 7 September 2015 stated “[t]he charges against me was [sic] 15 years ago which I’m not avoiding…”

24    The appellant’s visa was subsequently cancelled by a delegate of the Minister on 21 October 2015.

25    On 22 October 2015, the appellant applied to the Tribunal for review of the delegate’s decision.

Appellant’s case before the Tribunal

26    On 9 February 2016, the appellant provided a statement (through her new migration agent) by which she asserted that her previous agent’s submissions were not accurate.

27    The appellant said she was not charged or arrested when she was apprehended by Texas police, had not been served with any charges against her and was not aware a bench warrant issued in respect of her until after her visa was cancelled. She referred to and relied on email correspondence from her attorney in the United States, who stated that the appellant was not arrested at the time of entry into the country but was charged later with importation of marijuana. In that email correspondence the attorney asserted that:

[The appellant] was stopped at a United States port of entry, entering the United States in a vehicle from Mexico. US customs officials discovered that the vehicle contained marijuana. During the investigation and detention at the Port of Entry, Dora became ill and she was taken to the county hospital. US officials did not arrest her nor did they ever take her to the courthouse. She simply was released from hospital.

In the email correspondence, the attorney also stated that there was a strong likelihood that if the appellant returned to the United States “charges would be dropped or she would go into Pretrial diversion”. The attorney said that there was an active bench warrant that had been issued in October 2000 but never served.

28    The hearing before the Tribunal took place on 10 February 2016.

Post hearing submissions

29    After the hearing, on 8 March 2016, the appellant’s representative sent a further written submission to the Tribunal wherein it was stated that the appellant had not been arrested or charged at the time of the offence on 12 October 2000, and that an indictment was filed on 25 October 2000. The representative stated that the appellant had never been served with any warrant, and was not aware of “any charge or warrant” at the time of lodging the visa applications in Australia. An attached letter from the attorney in the United States stated that the docket showed that “all matters regarding these charges” (being the indictment and the issuing of a warrant) occurred after her initial detention on 12 October 2000.

30    The terms of this post hearing submission are significant. The representative submitted as follows (omitting irrelevant parts with own emphasis):

2.    Offence in the USA-False or Misleading information

There is an allegation that the applicant did not disclose the charges (or warrant) when filling out her student visa and spouse visa applications. The applicant’s response and that of her husband, is that they were not aware of the charges or any warrant that had been issued when filing [sic] out both applications and that they did not deliberately or knowingly provide false or misleading information to the department.

We have attached the Criminal Docket now received from the USA authorities. We have also attached the applicants USA lawyer’s explanation as to how to interpret this document – Attachment 2

The conclusions that can be drawn from the attached documents are as follows:

(i)    The offence was committed on 12 October 2000.

(ii)    The applicant’s evidence is that she was released from hospital after she had been arrested without charges being laid against her. Her evidence is that the police officer gave her his card but she never heard back from the police after her discharge from hospital.

(iii)    The docket sheet shows that the case was opened, indictment filed and the case was assigned on 25th October 2000, some 13 days after the initial offence (the date she was initially found to have committed the offence).

(iv)    Had the applicant been arrested, her criminal docket would have stated that she had been arrested and served with the warrant but the docket does not show this. The applicants USA lawyer has attached by way of example, another docket for another client of his to demonstrate the entries that would appear on the docket for the applicant if in fact she had been served with the warrant and had been arrested at any time.

(v)    This is consistent with her evidence and that of her husband.

(vi)    The applicant also gave evidence that she was employed as a TV presenter in Mexico and as an actress and was very well known in both Mexico and the USA because the TV programs she appeared in were also broadcasted in the USA (Mexican TV channels).

(vii)    She also gave evidence that she had crossed the Mexican/USA border countless times after her offence in October 2000 and she was never apprehended nor spoken to about the offence or criminal docket. She often visited her parents and son who lived in the USA and were USA citizens. She was born in the USA and her father is a USA citizen which means the applicant herself is also a USA citizen. She lived in Mexico because she worked in Mexico.

(viii)    It is highly unlikely and improbable that the applicant would have entered the USA numerous times after her offence in October 2000 if she was aware that there was an outstanding warrant for her arrest. The fact that she entered the USA so many times supports her evidence that she was never aware of any outstanding warrant.

(ix)    Despite this, the Criminal docket from the USA which is now attached demonstrates that no action was ever taken against her until 25/10/2000 and she was never served with any warrant (the docket does not show any entry to demonstrate that any warrant had been served or that she had been arrested – see example docket).

(x)    Given the evidence before the tribunal, there is no evidence that the applicant has provided any false or misleading information to the department when lodging her student visa application on 3rd January 2012 or when she lodged her partner visa on 25th March 2013 as on both occasions she was not aware of any charges or warrant that had been issued in relation to offences that she is alleged to have committed on 12th October 2000. The applicant only became aware of the outstanding warrant when she received the letter from the department dated 27th August 2015 (the notice of intention to consider cancellation).

3.    The outstanding charges in the USA

There has ben [sic] no finding of guilt at this stage against the applicant.

The fact that the Tribunal concludes that the applicant did not knowingly and deliberately provide false or misleading information to the department in the two visa application[s] which she has made, does not absolve her from ongoing investigation and prosecution from the authorities in the USA.

The applicant and the USA authorities will need to deal with these matters in due course and the outcome of those investigations and proceedings is yet unknown.

4.    Has the applicant provided “incorrect” answers when she lodged both visa applications?

The only matter before the Tribunal is whether there is clear and probative evidence to conclude that the applicant provided false or misleading information on 3rd January 2012 when she made her student visa application and on 25th March 2013 when she lodged her partner visa application.

[…]

The criminal docket received by the tribunal for “Case 3:00-cr-01753-DB All Defendants – USA v Contreras filed on 25th October 2000” makes it clear that at the time the applicant lodged her student visa application on 3rd January 2012 and her partner visa application on 25th March 2013, the applicant in this case has not been served with any outstanding warrant nor arrested in relation to this warrant and charges. She was not aware of any charges nor any criminal proceedings. There is no entry on the criminal docket to suggest otherwise.

Further, there is no information before the Tribunal which demonstrates conclusively that the applicant was aware of any outstanding warrant or that it had been served on her before she lodged her student visa and spouse applications. There must be clear and probative evidence before the Tribunal to come to such a conclusion and there is no such evidence before the Tribunal.

There is no doubt that the applicant may have suspected for many years that some legal proceedings may be issued against her when she was apprehended for her offences on 12th October 2000. However, the relevant questions asked of her in both the student visa and partner applications which she lodged did not ask her any questions about:

•    Whether she had committed any offences?

•    Whether she suspected that she may be charged with any criminal proceedings in the future?

Consequently, whilst the applicant may have had a concern or suspicion about what may eventuate from her conduct on 12th October 2000, the questions asked of her were very specific and did not extend beyond then [sic] two questions actually asked of her.

[…]

5.    The Visa holder’s circumstances

The visa holder and her husband have been separated for a number of years but are still married. They have not taken any steps to divorce at this stage.

They have a son [Child A] who is 3 year[s] of age.

He is an Australian citizen who lives with the visa holder who is responsible for his day to day care and wellbeing. The evidence before the Tribunal is that the visa holder as the mother has custody of her child by virtue of Family court orders giving her custody whilst the father Hamish, has agreed access to [Child A] on specified days and times.

The evidence of both the visa holder and Hamish the father of [Child A] was that they have joint commitment to [Child A’s] ongoing care and wellbeing. Hamish gave evidence that he accepts that [Child A’s] best interest is served by him being with his mother who can care for him constantly. His evidence was that he could not provide his son with the level of care that is currently provided by his mother and the current arrangements which they have in relation to the custody of [Child A] are the most acceptable arrangements.

Australia is a signatory to the International Convention on the rights of the Child.

Article 3 of the convention provides that “The best interests of children must be the primary concern in making decisions that may affect them.”

Article 1 of the Convention defines a child as a person below the age of 18yrs.

Article 9 of the convention provides:

Children should not be separated from their parents unless it is for their own good. For example, if a parent is mistreating or neglecting a child. Children whose parents have separated have the right to stay in contact with both parents, unless this might harm the child.

If the visa holders visa was to remain cancelled, there are serious questions about what may happen to [Child A].

[Child A’s] father, Hamish gave evidence that he would not consent to his chid living overseas with his mother and the applicant also gave evidence that she would not leave her child and would take all action necessary to ensure he remained under her care and custody.

The interests of [Child A] are very relevant considerations for the Tribunal in exercising its discretion as to whether the applicants visa should remain cancelled or not in circumstances where the Tribunal has found that there are grounds for cancellation.

The Tribunal does not need to turn its mind to this question as there is no evidence before the tribunal that the visa holder has provided incorrect answers to visa applications which she has previously made and there are no grounds for the cancellation of her current BS Partner sub class 801 visa which was granted to her on 17th July 2014.

(Emphasis added.)

31    It is unnecessary to refer further to the information given by the attorney from the United States, which is summarised for present purposes in the letter. However, one matter that is apparent from the attorney’s letter dated 24 February 2016 and earlier email correspondence that is significant is that on 25 October 2000 a bench warrant was issued “for” the appellant, and the case was reassigned from one judge to another judge on 9 June 2003. It is also clear from the attorney’s correspondence that an indictment was issued in addition to the warrant for arrest on 25 October 2000, although neither were served. The warrant was said to be “still open”— the significance of this as relied upon by the attorney is that it was not served, thereby showing the appellant had no knowledge of it (which was the argument being put forward on her behalf).

32    The Tribunal itself rehearsed the position in relation to the material provided by the attorney from the United States and the position of the appellant and her knowledge:

[21]    Instead of independent country information however, the applicant has only submitted selected Information provided by her attorney who is handling the matter in the United States.

[22]    The Tribunal has considered the information submitted with the submission made above by the applicant, dated 9 February 2016. The attachments include an email from the applicant's attorney, dated 10 February 2016 stating, "The nature of her charges are possession with intent to distribute a controlled substance marijuana/importation of a controlled substance marijuana. She was never served with a warrant nor was she ever arrested she was detained at the El Paso port of entry at which time she was transported to a hospital and then released. The warrant when [sic] active several months afterwards but was never served nor was it put on any system. It is still not on any system this [sic] you can't look it up. However, it is active".

[…]

[25]    When the Tribunal put to the applicant at hearing that it was unlikely that just because she went to hospital she was not issued with a summons or some documentation referring to charges, the applicant replied that when she went to hospital the officer just gave her his business card and left and that was that. The Tribunal finds this account somewhat implausible, particularly as the Tribunal gave the applicant an opportunity to provide first-hand information from the authorities that she had not been arrested and had not been required to attend court and had never breached her bail conditions as she claims. These were assertions made by the applicant and her attorney without credible supporting documentation.

[…]

[27]    After the hearing the Tribunal made it clear that the facts of the case, despite the attorney's emails, were still unclear and that without independent country information the Tribunal could not rely on what has been provided by her attorney.

[28]    The attorney has now submitted that the applicant committed the alleged offence on 12 October 2000 but that she was not issued an indictment or warrant for arrest until the 25 October 2000. A docket of the order of events has been presented also which the attorney argues shows that “there is no way to prove that the warrant was served because it is still open, if it had been served then the next docket entry would show arrest. I have sent an example docket sheet of what it would look like had she been arrested after a warrant was issued”. The Tribunal has had regard to this sample docket which shows that the defendant in that case was arrested in February 2015 and that she had an order for issuance of the warrant in March 2015.

[29]    In a submission dated 8 March 2016, the applicant’s current migration agent argues that had the applicant been arrested her criminal docket would have stated that she had been arrested and served with the warrant, but her docket does not show this. Again it is argued that it is improbable that the applicant would have been able to enter into and out of the US after her offence in October 2000, if she was aware that there was an outstanding warrant for her arrest. It is also claimed that the applicant was employed as a TV presenter in Mexico and as an actress and was very well known in both Mexico and the United States, yet the Tribunal has not been able to find any evidence of the applicant having such a high profile from its searches on the web.

[30]    The Tribunal has had regard to the criminal docket submitted in respect of the visa applicant. The Tribunal notes that it states that a Bench Warrant was issued for the applicant on 25 October 2000, but there was no mention of an arrest or the issuance of the warrant to the applicant.

[31]    The Tribunal notes, however, that the criminal docket submitted has no official quality about it. It is not signed by a court official or by a magistrate or Judge. The Tribunal places some, albeit limited weight on this document as its provenance is difficult to verify. Furthermore it has been presented out of context as the Tribunal finds it implausible that other documents that would shed light on the entire sequence of events from the law enforcement authorities' perspective are not available.

[32]    The Tribunal has difficulty accepting that the applicant’s attorney has provided a full picture of the applicant’s circumstances given that its own country research indicates that by its very nature a Bench Warrant has involved a prior process involving arrest and bail. A website setting out the definitions of various warrants states the following:

Other Types of Arrest Warrants:

Bench Warrant

Bench Warrant: An arrest warrant for a defendant who has been discharged on bail and subsequently fails to appear in court. (P.C. §§ 979 et seq.)

A bench warrant, issued by a neutral and detached magistrate upon a defendant's failure to appear, is legal justification for making entry into a residence in which there is probable cause to believe the subject of the warrant is hiding, despite the fact that such a warrant is issued without a finding of probable cause. (United States v. Gooch (9th Cir. 2007) 506 F.3rd 1156.)

[33]    This information clearly shows that the Bench Warrant’s inherent definition involves that a defendant has been discharged on bail and subsequently failed to appear in court - a matter the applicant's attorney appears to refute. This information would indicate that the applicant's departure from the United States was to evade facing this warrant which had been issued because the court considered that the applicant was in hiding,

[34]    This interpretation of the definition of a Bench Warrant is supported by further country information. EntryWaiverLaw, Immigration Lawyer in the United States has provided basic online advice about travelling to the United States with a US Warrant. The article [is] entitled "I have a Bench Warrant, Can I Still Visit the United States?” The immigration lawyer writes:

A bench warrant is used to arrest a defendant and bring them before the court, an obligation that they guaranteed when they posted bail in order to be released from custody.

[35]    Again the information confirms that a Bench Warrant is not defined as a general warrant but has a particular meaning involving the case where the defendant has guaranteed that they would return to court to face charges, after being granted bail.

[36]    The Tribunal has taken into account the attorney’s emails but in weighing them against the research undertaken by the Tribunal is not satisfied that the applicant's attorney is a disinterested party in this matter. The attorney was engaged after the visa was cancelled which is when she claims she became aware of the Bench Warrant, and he is also acting as an advocate for her in her immigration issues. The fact that her attorney who would have access to a wide range of independent information on criminal procedure and practice in the USA, has not presented any academic or other research in relation to the meaning of a Bench Warrant and why it was plausible that the applicant was not aware of the outstanding charges against her, leads the Tribunal to place lesser weight on the emails of the attorney.

[37]    The Tribunal notes that the attorney also says that the applicant would simply have to attend a diversionary process were she to return to the United States. If this is the case the Tribunal questions why the applicant has not already returned the US to resolve the matter conclusively.

[38]    Having assessed the information overall, the Tribunal has concerns about the credibi1ity of the applicant and considers that it is likely that the applicant has been issued with a Bench Warrant because she did not appear before the court as she had undertaken to do during the bail application process. This being the case it belies the applicant's claims that she was unaware that she had charges against her and that in interpreting Questions 58, 76 and 86, she was responding in a literal sense and truthfully.

[39]    If the applicant had skipped bail, so to speak, the applicant would have been fully aware of this and indeed would have been complicit in concealing from the immigration authorities that she had "Been charged with an offence that is currently awaiting legal action" when she lodged her Student visa and her Partner visa.

[40]    The applicant’s credibility is also marred because over time she has given different accounts of how she came to provide the incorrect information. Initially she stated that her ex-husband had filled in the forms incorrectly and that she had relinquished all responsibility to him for filing the application. Later and at the time of review, she has revised her claims to state that her previous migration agent gave a completely wrong account of what happened and that she deliberately had not said anything about being charged with an offence that was currently awaiting legal action, because no warrant had been issued against her and she was totally unaware of the authorities wanting to deal with the matter. After the policeman gave her his business card and did not pursue the matter she just assumed that the matter was over and she was free. Therefore when the migration applications were being filled in she literally entered truthful details because she was not aware that any legal action against her was afoot in the United States.

[41]    Even if the Tribunal were to accept the applicant's changed explanation for the incorrect answers given (section 101(b), (and given the research information above, the Tribunal does not accept it), the visa applicant must have been under no illusion that the question asked at Question 58 was aimed at disclosure of any unresolved criminal matters overseas. The Tribunal considers that it borders on fanciful that in committing a felony in the US, the applicant considered that she had no charges to answer, particularly when it would appear that the Bench Warrant was issued because she had skipped bail.

Tribunal decision

33    On 24 March 2016, the Tribunal affirmed the decision to cancel the appellant’s visa. The Tribunal found that there was non-compliance with s 101(b) of the Act in the way described by the s 107 notice. The Tribunal exercised the s 109 discretion to cancel the visa.

34    The Tribunal found (as part of exercising the discretion) that the correct information that ought to have been disclosed was that the appellant “has a criminal history in the United States and has been charged with offences that are yet to be resolved and that she fled the USA to avoid appearing in court to face those charges”: at [52]. The Tribunal also found that the appellant “stated she had not been charged with any offence that is currently awaiting legal action when clearly this was not the case”: at [55].

Discussion of Grounds 1-2 of the appeal

Ground 1

35    Central to any decision as to whether an answer is ‘incorrect’ is an understanding of the question being asked and the context in which the question is being asked. We accept that determining the meaning of the question should be undertaken with a practical bent, without any need for legal research or advice. That is, “the ordinary meaning of the words or phrases in a visa application form should not be lightly departed from”: see eg Le v Minister for Immigration and Border Protection (2019) 272 FCR 1 (‘Le v Minister’) at [32] (Nicholas, Katzmann and Bromwich JJ). Further, the application form should be read having regard to the reasons for seeking the information: see eg Le v Minister at [31]. Those reasons include whether a visa should be refused under s 501 of the Act, which includes whether a person is not of good character: see s 501(6)(c). Then it must be recalled that the questions apply to persons coming in from all parts of the world, who are subject to different types of criminal procedures and processes. For this reason, the questions must necessarily be general and capable of eliciting the information requested in the context of a wide variety of jurisdictions.

36    It is then important to consider all the relevant questions on the application form are referable to “Character”, to put the questions and answers in dispute in context.

37    The relevant context of the questions and answers in the partner visa application form was as follows (own emphasis added):

38    Looking at the questions in context, there is a difference between being convicted of an offence and being charged with an offence. Then the phrase “currently awaiting legal action” is a wide phrase to be adapted to the circumstances of various applicants from many parts of the world. In our view, “currently awaiting legal action” in relation to an offence would include any legal process relevant to and in connection with the offence that remains extant at the time the question is answered.

39    We can indicate our conclusions by reference to the reasons of the Tribunal and the way it approached (correctly) the task before it.

40    At [9] of its reasons, the Tribunal correctly summarised its role as follows:

The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice…

41    Under the heading “Conclusion on non-compliance”, the Tribunal then concluded at [48] that:

On the basis of the information before it and the reasons provided, the Tribunal finds that there was non-compliance with section 101 by the applicant in the way described in the s 107 notice.

42    The Tribunal found that the correct information was that the appellant had been charged in the United States and that those charges were “yet to be resolved” and were “currently awaiting legal action”: at [52], [55]. Thus, the Tribunal considered in terms not only whether there was a charge, but whether those charges were awaiting legal action.

43    The relevant time at which charges needed to be currently awaiting legal action was the time of the applications in 2011 and 2013. The material before the Tribunal showed that charges were laid against the appellant no later than 25 October 2000, and that those charges were still awaiting legal action at the time of the Tribunal’s decision. Thus there was no difference in the position between 2011 or 2013, on the one hand, and 2016, on the other.

44    Then, as shown from the analysis above as to what was before the Tribunal, there was probative material before the Tribunal to show that the appellant had in fact been charged in the United States, and those charges were currently awaiting legal action. The Tribunal did not need to consider this issue in detail because the appellant did not dispute these matters. Her case was that the non-disclosure in the visa forms was inadvertent. This is clearly apparent from the post hearing submissions referred to above.

Ground 2

45    Then we come to the real battle ground before the Tribunal, being the appellant’s argument that the incorrect answers were inadvertent. As referred to already, the appellant’s lack of knowledge or awareness does not mean that an answer is not incorrect: see s 100 of the Act. See also s 111 which provides that ss 107 to 109 apply whether the non-compliance was deliberate or inadvertent.

46    However, contrary to the argument of the appellant, these provisions do not make the question of whether the appellant’s incorrect answers were deliberate or inadvertent legally irrelevant in the context of the visa application.

47    It is true that an answer can be “incorrect” even if the person did not know it was incorrect, or if the error was inadvertent. However, that does not mean that the Tribunal was prohibited from considering whether an incorrect answer was deliberate or inadvertent. The difference between deliberate and inadvertent errors may be highly relevant to the discretion to cancel: see eg DFS17 v Minister for Immigration [2020] FCA 642 (14 May 2020) at [43] (Charlesworth J).

48    In the Tribunal, the appellant’s case was that she did not know that she had been charged. She claimed that she was not charged at the time of her initial detention on 12 October 2000 and that she had not been “served” with any charges or warrants. Read with the material provided by her attorney in the United States (to which the appellant referred), the appellant did not dispute that she was charged at a later point but rather contended that she was unaware of those charges because she had never been served. The Tribunal’s reasons complained of merely respond to these claims.

49    The Tribunal considered a number of factors as to whether to accept that the appellant’s conduct was deliberate, concluding as follows:

[38]    Having assessed the information overall, the Tribunal has concerns about the credibi1ity of the applicant and considers that it is likely that the applicant has been issued with a Bench Warrant because she did not appear before the court as she had undertaken to do during the bail application process. This being the case it belies the applicant's claims that she was unaware that she had charges against her and that in interpreting Questions 58, 76 and 86, she was responding in a literal sense and truthfully.

[39]    If the applicant had skipped bail, so to speak, the applicant would have been fully aware of this and indeed would have been complicit in concealing from the immigration authorities that she had "Been charged with an offence that is currently awaiting legal action" when she lodged her Student visa and her Partner visa.

[40]    The applicant’s credibility is also marred because over time she has given different accounts or how she came to provide the incorrect information. Initially she stated that her ex-husband had filled in the forms incorrectly and that she had relinquished all responsibility to him for filing the application. Later and at the time of review, she has revised her claims to state that her previous migration agent gave a completely wrong account of what happened and that she deliberately had not said anything about being charged with an offence that was currently awaiting legal action, because no warrant had been issued against her and she was totally unaware of the authorities wanting to deal with the matter. After the policeman gave her his business card and did not pursue the matter she just assumed that the matter was over and she was free. Therefore when the migration applications were being filled in she literally entered truthful details because she was not aware that any legal action against her was afoot in the United States.

[41]    Even if the Tribunal were to accept the applicant's changed explanation for the incorrect answers given (section 101(b), (and given the research information above, the Tribunal does not accept it), the visa applicant must have been under no illusion that the question asked at Question 58 was aimed at disclosure of any unresolved criminal matters overseas. The Tribunal considers that it borders on fanciful that in committing a felony in the US, the applicant considered that she had no charges to answer, particularly when it would appear that the Bench Warrant was issued because she had skipped bail.

[…]

The circumstances in which the non-compliance occurred

[55]    The non-compliance in terms of breaching s.101(b) occurred when the visa holder provided incorrect information in her application for a visa subclass 572 and in her Combined Partner visa subclass 820/801. She stated that she had not been charged with any offence that is currently awaiting legal action when clearly this was not the case. She failed to notify the Department of her criminal history and that she had failed to honour her bail conditions to appear before the court to have her matter dealt with, instead fleeing the US to avoid charges against her. Furthermore, the applicant then continued to compound her non-compliance by stating that she had actually entered her migration application form correctly as she was not aware of the Bench Warrant. The definition of a Bench Warrant means that the applicant would have been aware that she had skipped bail and was deliberately avoiding justice. The Tribunal has placed considerable weight on the applicant’s continued attempts to mislead the immigration authorities.

[56]    It would appear that the applicant deliberately provided incorrect information to the Department to enable her to enter and remain in Australia and by default evade her criminal law difficulties in the US.

50    Contrary to ground 2, the Tribunal did not commit error in considering and determining whether the incorrect answers given by the Appellant were inadvertent or deliberate.

GROUND 3 OF THE APPEAL

51    The following matters are relevant to this ground.

52    The appellant’s partner visa was granted because of her relationship with an Australian citizen, Mr McColl. They had met in Mexico before the appellant ever came to Australia. Child A was born of that relationship in December 2012. The relationship ended in 2013 because it turned “abusive”, “destructive and dangerous” for the appellant.

53    Relevantly to the issues raised in grounds 3 and 4, and as we have already referred to above, the appellant and Mr McColl have joint custody of Child A, and that child is prohibited from departing Australia. The parenting orders relevantly provide (in addition to the specific custody orders as to the living arrangements and access):

THE COURT ORDERS, BY CONSENT, THAT:

[…]

16.    In the event a dispute arises between the father and the mother in respect to these orders, their implementation and/or other significant parenting dispute relating to [Child A] that cannot be resolved between the parties, the father and the mother are to attend upon the Family Relationship Centre (“FRC”), or Relationships Australia, or any such accredited Family Dispute Resolution service such as Family Dispute Resolution Services “FDRS”) to participate in family dispute resolution mediation and both the father and the mother are to make a genuine effort to resolve any disputes and attempt come to an agreement about any issues in relation to [Child A] before any further application to the Family Law Courts.

AND IT IS NOTED THAT:

…

C.    The parties did not agree to the issue relating to discharging the Airport Watch List Order, prohibiting [Child A] from leaving the Commonwealth of Australia.

54    We can dispose of ground 3 of the Appeal in short compass: the Tribunal’s decision was not contrary to the FCC parenting orders relating to the child.

55    A parenting order under the Family Law Act does not confer an immunity on a parent from the general law. A parenting order is made against the background of particular factual circumstances (eg that the parents are living in Australia), but the making of orders under the Family Law Act does not confer a right to have those facts continue. Indeed, a parenting order under the Family Law Act contemplates that there may need to be a variation of the order to take account of the changing circumstances of the parties to the proceedings: see s 64B(2)(g)(ii)). The parenting order itself contemplates a change in circumstances.

56    Accordingly, the fact that the FCC has made parenting orders under the Family Law Act does not limit the discretion conferred by s 109 of the Act: see Cockrell v Minister for Immigration [2007] FCA 1779 (‘Cockrell v Minister’) at [43] (Besanko J); on appeal (2008) 171 FCR 345 at [14] (Gray, Finn and Mansfield JJ); CHZ19 v Minister for Home Affairs [2019] FCA 914 (17 June 2019) at [125]-[126], [141] (Colvin J); Meyrick v Minister for Home Affairs [2020] FCA 677 (20 May 2020) at [54] (Jackson J).

57    The Tribunal undertakes a different statutory task from that of a court exercising jurisdiction under the Family Law Act and applies the criteria in the Act and Regulations (and any Ministerial directions).

58    The Tribunal must form its own views on the best interests of any children: Cockrell v Minister at [43] (Besanko J). In its reasons, the Tribunal considered the best interests of Child A under the heading “Other relevant factors for consideration”. The Tribunal could lawfully have regard to this factor, as the prescribed circumstances in reg 2.41 of the Regulations are not exhaustive (Minister for Immigration v Khadgi (2010) 190 FCR 248 at [68] (Stone, Foster and Nicholas JJ)) and in the post hearing submissions referred to above the interests of Child A were specifically raised for the Tribunal’s consideration.

59    We agree with the following observations of the Tribunal in its reasons:

Should the visa be cancelled?

[49]    As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

[50]    In exercising this power, the Tribunal must consider the applicant's response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations…

[51]    Whilst these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department's Procedural Advice Manual) PAM3 ‘General visa cancellation powers’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

 […]

[69]    For all the arguments put forward as to why the visa application should not be cancelled the Tribunal has given greatest consideration to the son of the visa applicant and the consequences of such a cancellation.

GROUND 4 OF THE APPEAL

60    Ground 4 of the appeal can similarly be disposed of in short compass. There was no jurisdictional error of the type submitted by the appellant. It may be accepted that the exercise of a discretionary power of the kind found in s 109 is infected with jurisdictional error if it is legally unreasonable, illogical or irrational.

61    The appellant contends that the Tribunal was aware of, and had specific regard to, the airport watch list order. That order necessarily meant that the appellant’s son could not and would not join her overseas if she was removed as an unlawful non-citizen. Even so, the Tribunal found that she could and would move overseas with her son.

62    It is then submitted that the way that the parenting orders were dealt with by the Tribunal was thus illogical. The Tribunal both acknowledged that there was a legal impediment to the child leaving Australia and found that he would leave Australia. The appellant submits the parenting orders were an impediment at law to the factual scenario on which the Tribunal relied materialising (ie the child leaving Australia), and the decision was thus illogical or irrational.

63    The Tribunal referred expressly to the existing parenting orders, including the fact that there was a current airport watch list order: at [73]. Crucially, the Tribunal considered that these issues would need to be resolved by the making of further orders under the Family Law Act. The Tribunal stated (at [74]) that “the arrangements of the care of the child and any changes would need to go before the Family Court again” (strictly, a court exercising jurisdiction under the Family Law Act). The Tribunal considered the position of the son “if” he were to go with his mother to either the United States or Mexico, given she is the custodial parent: at [70]-[72]. However, the Tribunal also noted that the father might seek full custody of the son under the Family Law Act: at [75].

64    The Tribunal in this case weighed up the best interests of the son in various different future scenarios and acknowledged that the movement of the son from Australia would require further orders under the Family Law Act. Thus there is no contradiction in the Tribunal finding that there was an existing legal impediment to the son leaving Australia, and also assessing the position if the son were to return with the appellant to Mexico.

DISPOSITION

65    For the above reasons, the appeal should be dismissed with costs.

Associate:

Dated:    24 August 2021