FEDERAL COURT OF AUSTRALIA

Administrative Law )

Immigration Law     ) -  cancellation of visa - meaning of s 116(1)(a) of Migration Act 1958 conferring a power of cancellation where Minister is satisfied “any circumstances which permitted the grant of the visa no longer exist” - effect of context and of s 118 - requirements of ss 119, 120, 121 replacing the rules of natural justice - necessity for compliance - specification of reasonable place and period for a visa holder’s response to the invitation referred to in s 121 must take account of circumstances - relevant circumstance that applicant had been held for a long period without a meal after a long flight and felt unwell - discussion of the discretion of the Court where a decision is bad for illegality - principle that those who administer the law should keep within the law - effect of statutory role of detailed provisions re procedure for cancellation of visas as replacement for rules of natural justice upon discretion to grant relief.

Words and Phrases - “no longer”.

Migration Act 1958, ss 116, 118, 119, 120, 121, 127

Chiorny v Minister for Immigration and Multicultural Affairs(1997) 44 ALD 605, referred to

Minister for Immigration and Ethnic Affairs v Pochi (1981) 149 CLR 139, referred to

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465, applied

Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673, applied

Johns v Australian Securities Commission (1993) 178 CLR 408, applied

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, applied

Trong v Minister for Immigration, Local Government and Ethnic Affairs (1996) 45 ALD 507, applied

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621, followed

NCA (Brisbane) Pty Ltd v Simpson (1986) 13 FCR 207, followed

Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253, followed

Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162, followed

BTR Plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246, referred to

Conway v Repatriation Commission (1988) 16 ALD 770, referred to

Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136, referred to

ZHANG JIA QING v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 445 of 1997

Burchett J

Sydney (Heard in Melbourne)

5 November 1997

THE COURT ORDERS THAT:

1.    It be declared that the cancellation of the visa held by the applicant was not effected lawfully;

2.    The said cancellation be set aside ab initio;

3.    The respondent pay the applicant’s costs of this application.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BURCHETT J

This is an application, brought under Part 8 of the Migration Act 1958, and particularly s 475(1)(c), s 476 and s 481, challenging the validity of the cancellation of a visa.

The applicant, Mr Zhang, was one of five Chinese (four men and one woman) who arrived in Melbourne at about 6.20am on 12 July 1997 on a flight from Beijing via Guangzhou (formerly known as Canton).  Although the five fell into two groups of three persons and two persons, they appeared to be travelling together.  Each of the persons had a short term business visa, known by the designation Class 456.  The group of three, including the applicant, had obtained these visas on the basis that they proposed to conduct business discussions on behalf of Beijing Yi Ya Decoration Company Limited of Beijing, of which the applicant was said to be Deputy General Manager, with an Australian company C.R.C. International Pty Ltd (“C.R.C.”).  They had submitted applications to the Australian Embassy in Beijing, supported by a written invitation from C.R.C., signed by one Mary Lu, and their visas had issued accordingly.  The other two had obtained their visas in a similar fashion, having been invited to Australia by another Australian company.

After Mr Zhang had collected his luggage from the carousel, he was diverted by an official from the stream of incoming passengers, and was subsequently interviewed by an officer of the Immigration Department, a Mr Peric, in an office at the airport.  As Mr Zhang spoke very little English, Mr Peric telephoned a Mandarin speaking interpreter, and the interview took place through the medium of a conference telephone,  the interpreter being at the other end of the line.  While, doubtless, this procedure made for administrative convenience and would be generally appropriate (Mr Peric said he always held interpreted interviews that way, but his does not appear to have been the general practice, since the one interpreter called gave evidence that she worked more often on site), it would be surprising if it did not add to the difficulties of persons less at ease with audio technology than some Australians.  Mr Zhang has complained that he had difficulty communicating, although he attributed the problem to the interpreter’s accent, probably wrongly in the case of this first interview.  Later in the day, it is likely that jet lag and other factors combined to exacerbate the situation for him.   The affidavit of the officer indicates that he asked Mr Zhang why he had come to Australia, to which Mr Zhang replied “he would be involved with C.R.C. in business negotiations surrounding the purchase of decoration and building materials”.  Mr Peric’s affidavit continues:

“He made no mention of Mary Lu and when questioned on this said negotiations on the deal had been undertaken by the General Manager.  I informed the Applicant that he was not telling the truth.  I produced a faxed copy of a letter addressed to the visa section Australian Embassy Beijing which shows not only that he had signed the letters of invitation but also negotiated the business meetings as the Deputy General Manager.  The Applicant was also shown a further letter sent to him by Mary Lu confirming his invitation to visit CRC International.  He was then further questioned on the specifics of the itinerary or meetings intended for the two week stay.  The Applicant stated he was not familiar with it but claimed they would also be given an opportunity to see Melbourne.”

In fact, by the time this interview took place at possibly about ten o’clock (the evidence does not enable me to fix a precise time, but I accept evidence given by the interpreter, Catherine Nicolandos, that her services were called upon for a period of one hour and five minutes from about ten o’clock on that day for three interviews of approximately equal length, one of which was the interview with Mr Zhang, so that the time might have been closer to eleven o’clock), Mr Peric and another officer, a Ms Merriman, had been making various enquiries in relation to the five Chinese.  Ms Merriman had ascertained that there was someone in the arrival hall, a Mr Frank Fei (or Fei Guo), who had come to meet the flight in question.  Affidavits were read, for the applicant, of Mr Fei, and for the respondent, of Ms Merriman.  Neither was cross-examined.  But Mr Fei made specific statements about his conversation with Ms Merriman and also with another customs officer, in each case indicating that he had come to the airport to meet both the female Chinese in the group, Li Jie, and her companions.  These statements were not specifically denied either by Ms Merriman or by the other customs officer, and I see no reason not to accept them.  It is clear, on his own account, that he did not know personally any of the group other than Li Jie.  It is also clear that he gave Ms Merriman to understand he had been told Lie Jie “was travelling to Australia for business purposes”.  He gave his mobile telephone number to Ms Merriman and continued to wait, but by three o’clock in the afternoon had heard no further.  He then went to enquire at the customs office, where he was told that “the immigration officers had cancelled the visas of Li Jie and her companions”.  That his enquiry was couched in terms which elicited information about Li Jie’s companions tends to confirm his statement that he was there to meet them as well as Li Jie, although he did not know them personally. 

The officers also contacted the Embassy in Beijing by telephone to make enquiries about the issue of the visas.  A Mr Frodsham there stated the two groups had lodged separate applications for visas, supported by the Beijing company already mentioned, and by another company, Beijing Xin Yin Bo Electronic and Telecommunication Technical Co.  However, all the application forms appeared to him to have been completed by the same person, and the support letters from the two companies “were so similar as to appear to him to have been completed by the same person”.  Apparently on the basis of these facts, as Mr Peric understood his telephoned information, he had reached the following conclusion:

“The Chinese letters in support of the applications were determined by him to be fraudulent.  On this basis he assessed that the documents were non bona fide and stated that had the applications been seen in unison at the time of decision, they would not have been approved.”

The telephone conversation was immediately confirmed by facsimile letter, the substance of which was as follows:

“I refer to our telephone conversation a few moments ago.  As I said, both PMO Michelle Frew and myself have been dragged in out of bed and have looked at these applications.  Our observations and findings are;

.the 5 pax applied in two separate groups, ie a group of three and a group of two;

Group 1          ZHANG Jia Qing        150264            our file 97403/04

                        LI Jie                           090371           

                        LI Shen                        130575

Group 2          XIA Yun Qiao              281159            our file 97407/04

                        YAN Xiao Bo               240273

.both groups were decided by different delegates on different days;

.all forms are completed by the same person;

.the inviting itinerary of each group is extremely similar;

.each group was to be met on arrival at Melbourne Airport by the respective inviting company parties;

.all claim to be Managers despite the youth of some members;

.the letters presented in Chinese we now believe to be fraudulent having compared the typeface of the letters belonging to each group;

We have no comment about the inviting parties in Australia as they may well be genuine in their intentions to invite these people.

In reexamining these applications together we consider the applicant’s [sic] to be non bona fide.”

Accompanying this facsimile letter were facsimile copies of:

1.    A letter to the Australian Embassy Beijing signed “Zhang Jia Qing Deputy General Manager”, requesting the issue of the visas and mentioning C.R.C. International Pty Ltd of Melbourne, but not (a matter possibly of some significance) Mary Lu;

2.    A letter signed Mary Lu on behalf of C.R.C. International Pty Ltd (an ACN number is quoted) addressed to Mr Zhang Jia Qing as Deputy General Manager of Beijing Yi Ya Decoration Company Ltd, which confirms an invitation “to visit us in Melbourne in June 1997 to continue our business discussions and to advance our negotiation for on-going business co-operation.”

3.    A detailed travel itinerary covering three weeks from 24 June 1997;

4.    Two forms of application for a temporary business visa filled out on behalf of Mr Zhang and Li Jie (having regard to the comment in the letter, it is curious to note that the handwriting on these forms is not at all the same, although the wording certainly supports the view that a common draft or precedent was employed);

5.    A number of documents substantially in Chinese characters.

In detailing the material received by facsimile from the Embassy in Beijing, I have relied on the affidavit filed in this matter sworn by Mr Peric.  But when the hearing commenced, the matter was intended to be heard together with applications by each of the other four Chinese involved, and evidence in those matters was put before me on the basis that it could be relied upon as evidence in Mr Zhang’s application.  Subsequently, because of the time taken in the cross-examination of Mr Zhang, it was decided that his application alone would proceed at this stage to a conclusion of the hearing, but the other evidence remained before me.  That evidence shows that other application documents were also sent by facsimile from the Embassy in Beijing, revealing both differences and similarities between applications. 

Although it was a Saturday, an attempt was made to reach Mary Lu by telephone at the telephone number shown on the letter, received by facsimile from the Embassy, on letterhead bearing the name C.R.C. International Pty Ltd.  A person was spoken to who acknowledged the name Mary Lu, but, according to Ms Merriman, “said she was not familiar with the company C.R.C. International”, and she was not expecting visitors from China.  Later in the day, Ms Merriman again telephoned the number shown on the C.R.C. International Pty Ltd letterhead, and on this occasion spoke to a person who said that she was Mary Lu’s daughter and that Mary Lu did have business interests in C.R.C. International.  According to Ms Merriman, she “went on to say that her mother did sign a letter of invitation and was expecting a group of four people to arrive.  However, she said that her mother had expected them two weeks ago and did not know that they were arriving today.  When asked why Mary Lu did not say this earlier today her daughter said that her mother did not understand English too well.”  (Ms Merriman’s handwritten notes of the earlier conversation confirm that there had been some difficulty, and she had noted “English not 100%”.)

Also at some stage during the day, there was a further telephone discussion with staff at the Embassy at Beijing.  Mr Peric’s affidavit records an unidentified staff member as stating “that they were satisfied with their assessment that the company letters and documents supporting the visit on which approval for the visa rested were now considered non bonafide [sic].”

Mr Peric stated in his affidavit that he held a further interview with Mr Zhang “to discuss my concerns regarding the bonafides of the business visit and to give him an opportunity to address my concerns”.  According to Mr Peric, this interview was held using the same interpreter, but the interpreter who gave evidence stated definitely that she was only called upon once at about ten o’clock in the morning for a period of just over one hour, and not again in the afternoon.  I see no reason to doubt her statement as to this, and am accordingly left without evidence, other than that of Mr Zhang previously noted, concerning the quality of the interpretation at the last interview, which was certainly held in the afternoon.  Mr Peric says he raised with Mr Zhang the fact that his arrival in Australia was at a later date than had been scheduled and he had not been met by Mary Lu.  Mr Zhang, according to Mr Peric, “could provide little detail about his proposed business program in Australia beyond elaborating that he would undertake business negotiations with C.R.C. International.  He had no itinerary and did not know about any other business meetings arranged by his Australian host, or the interstate visits.”  Mr Peric’s affidavit comments that “his lack of knowledge in regards to negotiations with both the Australian Embassy and C.R.C. has lead [sic] me to believe he may not be a bonafide business visitor.  ...  The visa office in Beijing had confirmed that letters presented in Chinese in support of their visa applications are believed to be fraudulent.  ...  Because of these points, consideration would be given to cancelling his visa.”  The affidavit continues that Mr Zhang “was asked for comments on this proposed action and given the opportunity to advance reasons why his visa should not be cancelled.”  The affidavit says nothing about fixing a time for response, but in oral evidence Mr Peric claimed (and his notes confirm this) that he told Mr Zhang he could have five minutes to think about it and that Mr Peric would be back for his response.

The affidavit states:

“An assessment was made by me that the Applicant was not a genuine business visitor intending to pursue the activities specified in the visa application form submitted to the Australian Embassy in Beijing.”

He decided “to cancel the Applicant’s visa under s.116(1)(A)” [sic], and he gave the following reasons:

“(a)     the Applicant had arrived as a class 456 business visitor but could provide little detail about his proposed business program.

(b)       the Australian Embassy in Beijing stated he provided fraudulent Chinese documents when applying for his visa.

(c)        the reasons that he had given as to why the visa should not be cancelled did not convince me that this action should not take place.  This action was effected through the visa cancellation data-base and by placing a ‘label inoperative’ stamp on the visa label.”

It is the decision to cancel his visa under s 116(1)(a) of the Migration Act that the applicant challenges.  Section 116 provides as follows:

“(1)     Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(a)       any circumstances which permitted the grant of the visa no longer exist; or

(b)       its holder has not complied with a condition of the visa; or

(c)        another person required to comply with a condition of the visa has not complied with that condition; or

(d)       if its holder has not entered Australia or has so entered but has not been immigration cleared - it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

(e)        the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or

(f)        the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or

(g)       a prescribed ground for cancelling a visa applies to the holder.

(2)       The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.

(3)       If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.”

Although this case is primarily concerned with s 116(1)(a), it is necessary to consider the context provided by paras (b) to (g).  The expression in paragraph (d) “immigration cleared” must be understood in the light of other provisions.  Section 5 states that it “has the meaning given by subsection 172(1)”.  There it is relevantly provided:

“A person is immigration cleared if, and only if:

(a)       the person:

            (i)         enters Australia at a port; and

            (ii)        complies with section 166; and

            (iii)       leaves the port at which the person complied and so leaves with the permission of a clearance officer and otherwise than in immigration detention ... .”

The definition of “port” in s 5 includes “a proclaimed airport”.  It is not disputed that Melbourne airport is such an airport.  Section 166 is the provision requiring, relevantly, a non-citizen entering Australia to produce evidence of identity and of an effective visa, and to furnish required information.  Applying paragraph (d) to the present case, as Mr Zhang had entered Australia at a port but had not left the port at the time of the impugned decision, he had not been “immigration cleared”.

What is meant by the further expression, in paragraph (d), “it [ie the visa] would be liable to be cancelled under Subdivision C (incorrect information given by a holder) if its holder had [entered Australia] and been immigration cleared” is to be ascertained by reference to a number of earlier sections.  Sections 101 to 105 (inclusive) require a non-citizen (inter alia) to give no incorrect answers in a form of application for a visa or in a passenger card; not to give an officer a “bogus document”; if circumstances change, to correct an answer to a question in the application form which is incorrect in the new circumstances; and if he becomes aware that an answer in the form or passenger card or certain other information given by him “was incorrect when it was given” to notify an officer.  Section 107 then provides that “[i]f the Minister considers that the holder of a visa who has been immigration cleared” did not comply with any of these provisions, the Minister may give notice accordingly, inter alia, requiring a written response within fourteen days and stating that the Minister will consider cancelling the visa.  By s 108, the Minister must consider any response and decide whether there was non-compliance in the way described in the notice, and by s 109, if the Minister decides there was non-compliance, the power arises to cancel the visa.  Each of ss 101 to 109 (inclusive) is contained in the Subdivision C referred to in s 116(1)(d).

It was not argued that Mr Peric did not have the powers of the Minister under s 116.  Therefore, if he had been “satisfied” that “incorrect answers” had been given in the application for a short term business visa when it asserted Mr Zhang did have “proposed business activities in Australia”, which were described as “[r]epresenting the company in business negotiations of the co-operative agreement with Australia [sic] business partner”, s 116(1)(d) gave a power to cancel the visa:  see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-277.  But this required the reaching of a conclusion of “satisfaction” about the application made in Beijing, a conclusion of the most serious kind.  What Mr Peric did, according to his handwritten notes of his final interview with Mr Zhang, was to tell him there were the following reasons for cancellation of his visa:

“- Arrived later than scheduled according to itinerary

- Pax [ie Mr Zhang]could provide no details of business program in [Australia]

- Visa office confirmed bogus docs [documents] lodged

- Pax lack of knowledge in regards to business Neg. [negotiations].”

The first of these could hardly have been a major consideration, particularly as the delay was not great.  The second may have been due to the delay, or may have been regarded as supporting the inferences to be drawn from the final two points, each of which went to the genuineness of the business trip for the purposes of which the visa had been granted.  Certainly, the most striking point was the assertion that the use of bogus documents had been confirmed.

After giving Mr Zhang five minutes to consider these points, and hearing his response which did not acknowledge wrongdoing and sought entry pursuant to the visa to conduct business, Mr Peric records that he considered the response and “decided to cancel under sec 116(1)(A)” [sic].  He also records that he advised the applicant of his decision in writing as well as verbally.  The writing utilized a form headed “NOTIFICATION OF CANCELLATION UNDER SECTION 116 OF THE MIGRATION ACT 1958 - IN IMMIGRATION CLEARANCE”.  The form was filled in to refer to Mr Zhang.  Omitting formal parts, it read:

“This is to advise that your visa has been cancelled.  The cancellation of your visa takes effect from 12 July 1997 (date).  Your visa was cancelled under paragraph 116(1)(a) because any circumstances which permitted the grant of the visa no longer exist.

Your comments were taken into account in making this decision.

Your visa evidence [sic] in your passport has been stamped inoperative.

As you are no longer the holder of a visa, you have been refused immigration clearance and will be removed from Australia as an unlawful non-citizen.”

In the part of the form which I have reproduced, the date, the statement of the particular paragraph of s 116(1) and the words “any circumstances which permitted the grant of the visa no longer exist” were inserted by Mr Peric in ink.

Mr Peric also prepared a typed report of this matter, in which he referred to having told Mr Zhang that “his lack of knowledge in regards to negotiations with both the Australian Embassy and C.R.C. has led me to believe he may not be a bonafide business visitor” and that “the visa office in Beijing had confirmed that letters presented in Chinese in support of their visa applications [ie those of Mr Zhang and the other Chinese] are believed to be fraudulent”.  The report goes on to record Mr Zhang’s statement that he should be allowed entry into Australia “to conduct business”, and then states:

“IT WAS THEN DECIDED TO CANCEL THE PASSENGER’S VISA UNDER SECTION 116(1)(A) AS:

1)         PAX HAD ARRIVED AS A CLASS 456 BUSINESS VISITOR BUT COULD PROVIDE LITTLE DETAIL ABOUT HIS PROPOSED BUSINESS PROGRAM.

2)         THE AUSTRALIAN EMBASSY IN BEIJING STATED HE PROVIDED FRAUDULENT CHINESE DOCUMENTS WHEN APPLYING FOR HIS VISA.

3)         THE REASONS THAT HE HAD GIVEN AS TO WHY THE VISA SHOULD NOT BE CANCELLED DID NOT CONVINCE THAT THIS ACTION SHOULD NOT TAKE PLACE.  THIS ACTION WAS EFFECTED THROUGH THE VISA CANCELLATION DATA-BASE AND BY PLACING A ‘LABEL INOPERATIVE’ STAMP ON THE VISA LABEL.”

Mr Peric gave evidence orally, and was cross-examined.  In his evidence, he appeared to be concerned to minimise the importance of the information obtained from the embassy in Beijing, but I am satisfied that the decision, as his report at the time suggests, was strongly influenced by this information.  Otherwise, further inquiry would surely have been made when Mary Lu’s daughter confirmed her mother’s involvement in C.R.C., that her mother had signed the letter of invitation, and that her mother expected the arrival (although not on that day) of the Chinese.  I am satisfied Mr Peric did not entertain any idea that the circumstances had really changed since the issue of the visa so that the circumstances which permitted its grant no longer existed.  What he thought was that there was reason to suspect the proposed visit was never a genuine business visit, having been arranged for some other undisclosed purpose.  Of course, suspicion was not the same thing as proof, and he referred in his evidence to doubts in his mind.  He did not make his decision under s 116(1)(d), the provision that would have been applicable to a case of actual satisfaction that the visa had been obtained by fraud.

It is apparent that this matter raises quite directly the true construction of s 116(1)(a).  In order to have the power to cancel a visa under this provision, the Minister must be satisfied that “any circumstances which permitted the grant of the visa no longer exist”.  The paragraph does not say “never existed”.  As a matter of the ordinary meaning of words, the expression “no longer exists” refers to the cessation of a state of affairs that did exist; it does not suggest that alleged circumstances have turned out to have been a fabrication.  The meaning of “no longer” is stated in The New Shorter Oxford English Dictionary (1993) vol 1 p 1624: “not now as formerly”.  In the specification of a power to cancel a visa issued under the authority of the Australian Government, with the result that a person may be taken into custody and deported, it is not to be expected that Parliament would have intended a loose meaning.  Such a provision is, of its nature, to be understood in a precise sense.  There is only one precise sense of the expression “no longer exists”.  If any circumstances which permitted the grant of the visa are called into question under this paragraph, that question is whether they do not now exist as they formerly did, that is, at the time of the issue of the visa.

So far, I have been considering the language in isolation.  If, however, it is considered in the context of the other paragraphs of s 116(1), the position is even clearer.  For one of those paragraphs, paragraph (d),  explicitly covers the case where a visa has been obtained upon representations that were false at the time they were made.  Sections 101 and 103, which it incorporates by reference, refer to the giving of incorrect answers in the form of application for the visa and to the furnishing of a bogus document in support of that application.

Counsel for the Minister sought to avoid the contextual force of paragraph (d) by referring me to s 118, which provides:

“The powers to cancel a visa under:

(a)       section 109 (incorrect information); or

(b)       section 116 (general power to cancel); or

(c)        section 128 (when holder outside Australia); or

            ...

are not limited, or otherwise affected, by each other.”

But I think this section is concerned with the exercise of the powers in question, not with their interpretation.  Even if it were concerned with interpretation, it could not be understood to provide that the various paragraphs of s 116 do not supply a meaningful context within which each must be interpreted, but that s 116, that is, the whole section, is not limited, or otherwise affected, by the other sections mentioned.  Furthermore, if, despite both these points, s 118 should be taken to isolate each individual paragraph of s 116(1), in its interpretation, the consequence would be to enforce a strictly literal meaning.  The literal meaning of paragraph (a) would be of no assistance to the Minister, as I have already indicated.

Accordingly, the decision to cancel Mr Zhang’s visa was invalidly reached, since Mr Peric was not in fact satisfied of the matter stated in the paragraph, nor did the facts on which he relied fall within its terms.

This conclusion has a further consequence, which attracts a further ground upon which the application before me was based.  That ground relied on the terms of ss 119, 120 and 121 of the Act.  Section 119, so far as is relevant, provides:

“(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 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 holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.

(3)       The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.

...”

Section 120, which perhaps is peculiarly relevant to discretionary considerations, provides that the Minister must give particulars of information, and as far as reasonably practicable ensure that it is understood, where he considers that information “would be the reason, or a part of the reason, for cancelling a visa”.  Section 121 relevantly provides:

“(1)     An invitation under paragraph 119(1)(b) ... is to specify whether the response to the invitation may be given:

(a)       in writing; or

(b)       at an interview between the holder [ie the holder of the visa] and an officer; or

(c)        by telephone.

...

(3)       Subject to subsection (5) [here irrelevant], if the invitation is to respond at an interview, the interview is to take place:

            (a)        at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and

            (b)        at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period.

...”

The applicant complained that the Minister’s duties under these sections were not performed in this case.  A considerable amount of evidence was directed to this aspect of the matter.  I do not think it is necessary to burden these reasons with a lengthy examination of it.  For one thing is clear; the ground which, on its true construction, s 116(1)(a) expresses was not notified to the applicant, nor were particulars of that ground given to him.  This conclusion does not rest on Mr Zhang’s evidence.  It will be recalled that Mr Peric, in his own affidavit, indicated that after enquiries had been made, Mr Zhang “was invited for a further interview to discuss my concerns regarding the bonafides of the business visit and to give him an opportunity to address my concerns.”  This does not suggest that Mr Zhang would have been, or was, told of the quite different ground on which the decision was actually made.  Nor does the balance of Mr Peric’s affidavit suggest that any ground other than lack of bona fides and fraud was raised with Mr Zhang.  Neither the handwritten notes nor the somewhat fuller elaboration contained in the report prepared by Mr Peric contains any indication that the ground on which the visa was cancelled was ever notified to Mr Zhang, or that he was ever given particulars of that ground. Rather, he was told of the officer’s “concerns” in terms calculated to suggest that the problem was whether he was a bona fide business visitor or a person who had obtained his business visa by fraud.

One detail of the evidence should not be overlooked.  Mr Zhang’s affidavit in support of his application included the allegation that, according to the chronology indicated by his account, quite shortly before the final decision to cancel his visa, he “began to feel unwell as [he] had not eaten since very early in the morning, and it was now 3.00pm or 4.00pm in the afternoon.  [H]e told the officer this but he said he was not interested.”  Mr Peric’s affidavit contains no denial of this allegation, although he annexed to it, as “a true record of the events”, the report to which reference has already been made.  That report indicates that at an unspecified earlier time during the day [which on the interpreter’s evidence could not have been later than 11.05am] Mr Zhang was offered “some refreshments.  He accepted a glass of water.”  Bearing in mind that the applicant had arrived at 6.20am on a flight from Beijing, if he had only had a glass of water at about 11.00am, his complaint much later, which appears to have been made at the time or shortly before he was given five minutes to respond to Mr Peric’s “concerns”, seems wholly justified.  Since the allegation, made in an affidavit of no great length, was left unanswered, I can only conclude that it was correct.  That is not a state of affairs which should be condoned, or permitted to occur again.  If Australian citizens were so treated overseas, I have no doubt the Australian Government would be concerned.  In my opinion, the specification of a reasonable place and period for a visa holder’s response to the invitation referred to in s 121 must take account of the circumstances.  In the circumstances of the present case, it was not reasonable to require Mr Zhang to respond when and where he had been kept for so long without eating, and after he had indicated (as was by then understandable) that he was feeling unwell.  I do not accept Mr Peric’s evidence suggesting that he had no difficulty in doing so.  In a previous matter, a judge of the Court has expressed “serious concern” that an officer, who was, as Mr Peric was and as will generally be the case, “in a dominant position”, had failed to ensure the fairness of procedures followed under ss 119 and 120:  Chiorny v Minister for Immigration and Multicultural Affairs (1997) 44 ALD 605 at 611.

The visas of the other four Chinese were also cancelled.  After the visas had been cancelled, all five were held in detention.  Following their detention, they made further applications, claiming to be refugees.  These applications were withdrawn prior to the commencement of the hearing of the present matter.  Mr Zhang was cross-examined at considerable length about inconsistencies between statements made in his refugee application and statements made in connection with his short term business visa.  It was submitted that even if I found, as I have,
that the visa was cancelled invalidly, I should decline to grant any relief on the basis that the visa could and should have been validly cancelled under s 116(1)(d).  Of course, in the events that have happened, the visa has now expired.  The applicant, for his part, submits that he is entitled to have an invalid cancellation held to be invalid, and that it may be important for him, on any future application for a visa, to be able to say that he has never suffered a lawful cancellation of a visa held by him.

A number of considerations are involved.  In the first place, it may be said that the Act does not treat the particular ground for a cancellation as immaterial.  Section 127(2)(a) requires the Minister to “specify the ground for the cancellation”.  But there are two fundamental considerations that stand in the way of accepting the Minister’s submission.  On the one hand, these proceedings are for judicial review of the legality of administrative action.  The law does not permit the Court to be substituted for the administrator for the purpose of finding the facts.  Therefore the applicant’s case on the facts has never been presented, and could not have been presented.  Mary Lu, for instance, was not called, nor was evidence obtained from China to investigate the opinions, necessarily somewhat hastily formed, put forward by Mr Frodsham.  If the visa still had some time to run, no-one would suggest that the Court should find the underlying facts; it would simply set aside the decision and refer the matter back to the Minister.  How can the expiry of the visa change the nature of the proceeding, which remains a proceeding for judicial review of the decision to cancel?  The argument was put as an appeal to the Court’s discretion.  But if the Court, either on the partial evidence before it, or after hearing further evidence, were to find in favour of the applicant, and the issues of fact were then in some way to come before the Minister again, the Court’s decision would have no binding effect.  For the reasons given in the joint majority judgment of the High Court in Minister for Immigration and Ethnic Affairs v Pochi (1981) 149 CLR 139 at 143-144, the Court should be slow to accept the Minister’s invitation to enter upon an exercise of discretion which would have that consequence.  It would be different if the proposition were that the only decision legally open to Mr Peric was to cancel the visa, so that his errors of law were immaterial, but that was not, nor in the circumstances could it have been, the argument:  cf BTR Plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 at 253-254; Conway v Repatriation Commission (1988) 16 ALD 770 at 771; Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 139.

In the second place, and it is on this basis that I decide the matter, the submission seems to me to run counter to a proper regard for the rule of law.  It amounts to saying, in the name of some kind of “rough justice”, that the law should not be enforced in this instance.  In my opinion, it is extremely important that those who administer the laws of the Commonwealth should keep within the law.  As Wilcox J said in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 486:  “There is a substantial public interest in statutory decision-makers making their decisions in accordance with, rather than in disregard of, the law.”  See also his Honour’s insistence in Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673 at 683 that there was “a principle involved in the case that goes beyond the question whether compliance with the regulations would have led to a different outcome for particular people” (that, like the present, was a visa case).  This principle has repeatedly been asserted by the High Court in relation to the criminal law since the seminal remarks of Barwick CJ (with whom the other judges all agreed) in Reg v Ireland (1970) 126 CLR 321 at 334-335.  It also applies in relation to that fundamental principle of administrative law which is known by the name of natural justice:  see Johns v Australian Securities Commission (1993) 178 CLR 408 at 431, 437, 458-459; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582, 596-597; Trong v Minister for Immigration, Local Government and Ethnic Affairs (1996) 45 ALD 507 at 520, per Merkel J; and the comment made by Prof Allars in (1997) 19 Sydney LR at 418, and the cases there cited.  In Ainsworth, Brennan J said (at 597):

“Where an official entity, purportedly exercising a statutory power or performing a statutory function which requires it to observe the rules of natural justice, publishes a report damaging to a person’s reputation without having given that person an opportunity to be heard on the matter, prima facie that person is entitled to a declaration that the report, so far as it damages his or her reputation, has been produced in breach of the entity’s duty to observe the rules of natural justice.  The declaration cannot assert that the report was in fact erroneous for the court is not concerned with the merits of the report.  ...  The Commission did not accord fair treatment to the appellants and it is right so to declare.”

There is importance in the fact that the provisions of the Migration Act, with which I am concerned, were designed to replace, in respect of decisions concerning visas, the rules of natural justice, the rules of which Brennan J stated the effect in Ainsworth.  As Davies J said in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 at 626, “it plainly appears that the new provisions were designed to substitute statutory law for the common law as reflected in s 39B of the Judiciary Act and in the ADJR Act.”  In my judgment in Eshetu (at 639-640), I made the same point at somewhat greater length.  In the course of my discussion, I referred to the explanatory memorandum that accompanied the bill which became the Migration Reform Act  1992.  Part of the memorandum which I quoted (at 639) included the statement:

“The scheme of decision-making under the amendments made in this bill will set out with greater certainty the procedural requirements to be followed to ensure that applicants are provided with the protection necessary to receive a fair consideration when decisions are made affecting their right to enter or remain in Australia.  The procedural requirements under the existing regime have been governed by the common law rules of natural justice and these rules have not provided the certainty needed for effective administration of the migration program.  Accordingly, these common law rules will be replaced by a codified set of procedures which will afford the same level [of] protection to individuals but will have the additional advantage of greater certainty in the decision-making process ... . The bill provides for an application for review of a decision where procedures such as these are not observed.”

See also the further quotation from the memorandum made at 640, including the statement:

“To ensure procedural fairness, procedures for decision-making which embody the principles of natural justice have been set out in the Reform Bill ... The specific codified procedures in the Reform Bill ... replace the current uncertain rules with regard to natural justice and statutory criteria for decision-making will clarify the matters which must be considered in making a decision.  An applicant will be able to appeal to the Federal Court if the codified procedures and criteria have not been followed by decision-makers ... .”

Having regard to these statements, it cannot be denied that the detailed criteria contained in the sections to which I have referred in this judgment were intended to provide protection to those persons to whom these criteria might come to be applied.  In particular, they were intended to replace, and that in full measure, the rights conferred by the common law as belonging to natural justice.  This being so, what was said by the High Court in the natural justice cases which I have cited, and in particular the remarks of Brennan J in Ainsworth v Criminal Justice Commission at 597, must be applicable, mutatis mutandis, to a breach by the Minister of his duty to observe the statutory requirements for the cancellation of a visa.  Those requirements are the protection the Commonwealth offers to the visa holder who arrives in this country.  In the present case, the protective requirements were disregarded in more than one respect, and the subjection of a person in a vulnerable position, vis-a-vis government officials, to a long ordeal without food can only be seen as inhumane.  The principle is of the highest importance. Infringement of a person’s liberty is likely to be involved when a visa is cancelled, and Mr Zhang has in fact been in custody for several months.

In my opinion, the Court should insist upon the due observance of the law, and Mr Zhang is entitled to a declaration that the cancellation of his visa was not effected lawfully, and an order setting it aside ab initio.  It would not be right to allow the unlawful cancellation some temporary validity:  NCA (Brisbane) Pty Ltd v Simpson (1986) 13 FCR 207 at 252; Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253 at 258; Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162 at 169.  The applicant is also entitled to an order for his costs.

Associate:

Dated:  5 November 1997