FEDERAL COURT OF AUSTRALIA
MIGRATION – visas - application pursuant to ss 476(1)(a) and 476(1)(e) of the Migration Act 1958 (Cth) (“the Act”) to review a decision of the Minister’s delegate to cancel the first applicant’s long stay temporary business visa (subclass 457) while in immigration clearance at Melbourne airport - cancellation made pursuant to s 116(1)(e) on the ground that “the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community” - s 119 notice of intention to cancel particularised grounds as “known association with a person who … has been involved in the illegal entry of non‑citizens to Australia” and a person “travelling on a fraudulent … passport … with a fraudulent Australian visa to Melbourne airport” - whether incorrect application of the law to the facts.
MIGRATION – whether the decision‑maker’s failure to particularise all reasons for cancellation in the notice and to ensure that the visa holder understood why each of the matters were relevant to the cancellation was an error of law reviewable under s 476(1)(e).
MIGRATION – judicial review - s 476(1)(a) - whether procedures required pursuant to ss 119, 120 and 121 of the Act to be observed in connection with the making of the decision to cancel a visa were observed - s 121(3) - whether the failure to specify a time in the notice at which an interview was to take place so that the visa holder could provide comments as to why the grounds for cancellation did not exist or that there was a reason why the visa should not be cancelled invalidated the decision - discussion of mandatory nature of procedures.
MIGRATION – visas - whether, as “approved dependent” or “members of a family unit”, the first and second applicants’ visas were cancelled automatically by the decision to cancel the first applicant’s visa.
MIGRATION – visas - cancellation of child’s visa - judicial review - s 476(1)(e) - whether decision‑maker erred in law by incorrectly applying Article 3 of the United Nations Convention on the Rights of the Child by failing to make the “best interests of the child” a “primary consideration” - whether decision to cancel parent’s visa was an action “concerning” a child - discussion of decision‑maker’s obligation to draw decision to the attention of the visa holder and provide an opportunity to respond - effect of principles espoused by the High Court in Teoh’s case - effect of Ministerial Statements issued by the Federal Government after Teoh.
WORDS AND PHRASES – “good order”
Migration Act 1958 (Cth): Pt VIII, Subdiv D, Div 3, Pt 2, Subdiv E, Div 3, Pt 2
s 116(1)(e), s 119, s 120, s 121(3), s 139(a) & (b), s 140(1), s 189, s 476(1)(a) & (e), s 476(3)(a), s 501
United Nations Convention on the Rights of the Child
Article 3(1)
Eshetu v Minister of Immigration and Multicultural Affairs (1997) 71 FCR 300, followed
Borsa v Minister of Immigration and Multicultural Affairs (unreported, R D Nicholson J, 17 July 1998), followed
Zhang Jia Qing v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 519, followed
Chief of the General Staff v Stuart (1995) 58 FCR 299, distinguished
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, considered and applied
Davey Browne v Minister for Immigration and Multicultural Affairs (unreported, Wilcox J, 29 May 1998), considered
Department of Immigration and Ethnic Affairs v Ram (1996) 69 FCR 431, considered
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608, considered and applied
O’Connor v LEAW Pty Ltd (1997) 42 NSWLR 285, applied
WILLIAM TIEN & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 599 of 1998
GOLDBERG J
MELBOURNE
3 DECEMBER 1998
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
WILLIAM TIEN First Applicant
LIANG YAN LI Second Applicant
NATALIE TIEN Third Applicant
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. It be declared that the cancellation on 5 November 1998 of the visa held by the first applicant was not effected lawfully.
2. The decision on 5 November 1998 to cancel the visa of the first applicant be set aside ab initio.
3. It be declared that by reason of the matters set out in paragraphs 1 and 2 of this order, the cancellation on 5 November 1998 of the visas held by each of the second and third applicants was not effected lawfully.
4. The respondent pay the applicants’ costs of the application including reserved costs.
Note: Settlement and entry of orders is dealt with in O 36 of the Federal Court Rules
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
First Applicant
LIANG YAN LI Second Applicant
NATALIE TIEN Third Applicant
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
Introduction
The applicants apply to review the decision of the respondent to cancel the visas held by the applicants. The second applicant is the defacto wife of the first applicant and the third applicant is their four year old daughter. All applicants are presently held in immigration detention. The application is expressed to be made pursuant to Pt VIII of the Migration Act 1958 (Cth) (“the Act”) or alternatively the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). However, by virtue of the provisions of s 485(1) of the Act the jurisdiction of the Court to review the decision cancelling a visa can only be made pursuant to Pt VIII of the Act. Section 475(1)(c) of the Act provides that a decision made under the Act relating to visas is a judicially reviewable decision which is reviewable under s 476 of the Act. The grounds in s 476(1) relied on are:
· that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision (s 476(1)(e));
· that procedures that were required by the Act to be observed in connection with the making of the decision were not observed (s 476(1)(a)).
The delegate of the respondent made a decision on 5 November 1998 to cancel the first applicant’s visa and the respondent contends that such cancellation automatically resulted in the cancellation of the visas of the second and third applicants without any further decision needing to be made in relation to those visas. No decision as such was taken to cancel the visas of the second and third applicants.
Background to cancellation of first applicant’s visa
The first applicant (“Mr Tien”) first came to Australia in 1989. He had applied for and obtained a business long‑stay visa, the most recent of which, a long stay temporary business visa, subclass 457, had been approved on 21 May 1998. The visa was granted until 21 May 2000. The second and third applicants were named as “approved dependants” in the notification of the visa. On 5 November 1998 shortly before 11.00 am Mr Tien arrived at Melbourne airport on a flight from Hong Kong. He was travelling with another person travelling under the name Herman Changga who held an Indonesian passport. When they arrived at the customs barrier the Indonesian passport was found by immigration officers to be irregular. Mr Tien told immigration officers that the other person could not speak English and spoke Indonesian and Mandarin. The Department of Immigration’s database disclosed that the visa in the Indonesian passport had been issued to a different person. A Departmental document examiner determined that the visa was counterfeit and that the Indonesian passport was a forgery and he told other Departmental officers, including Ms Sonia Leonardi, that it was his opinion that they were bogus. Mr Tien and the other person were taken from the primary line to be interviewed by Ms Leonardi. The other person was interviewed first and although an Indonesian interpreter was obtained the other person could not understand the interpreter or speak Indonesian. A Mandarin interpreter was then arranged.
At approximately noon another Departmental officer, Mr Victor Vella, took over the interview. The other person admitted he was not Herman Changga, an Indonesian citizen, but was Zhang Yong Zhi born in Guang Dong, People’s Republic of China (“PRC”). He told Mr Vella that he owned a timber business in China and he had met Mr Tien in Hong Kong in early September 1998, having been introduced by a person called “Jimmy”. Later in the interview he said that it was Mr Tien who had introduced him to Jimmy in late September 1998. He said that Mr Tien took him to Indonesia to meet Jimmy and he travelled on his PRC passport. They signed some papers and returned to Hong Kong. On 3 November 1998 he travelled to Indonesia as Mr Tien had notified him that his Indonesian travel document was ready for collection. Mr Tien met him at the Jakarta airport and they met Jimmy and picked up the documentation. An Australian visa was placed in the Indonesian passport. On 4 November 1998 they went together to Hong Kong and departed for Australia. Before leaving Hong Kong Mr Tien requested a loan of $HK10,000 to purchase the airline tickets.
Mr Zhang said that he tried to gain entry to Australia by producing false documentation and said that Mr Tien had told him that was the only way he could gain entry into Australia. Mr Vella refused Mr Zhang entry pursuant to s 166(1)(a)(ii) of the Act, detained him pursuant to s 189 and he left Australia on a Cathay Pacific flight at 1.40 pm the same day.
Ms Leonardi commenced interviewing Mr Tien shortly after 1.00 pm. She told him that his travelling companion could not speak Indonesian and that he had admitted his true identity. Mr Tien said he had known him only as Changga and that they had communicated in Mandarin. Garuda airline tickets for a flight from Jakarta to Hong Kong for Zhang Yong Zhi and Mr Tien had been found by Departmental officers in Mr Tien’s luggage. Ms Leonardi put to Mr Tien that he had knowingly accompanied a person on false documentation to facilitate his illegal entry into Australia and that his visa was now subject to possible cancellation. Mr Tien strongly denied the allegation. He said that he had paid $US3,500 to a man named “Jimmy” in Jakarta for Mr Zhang’s visa. He said that $US3,000 was for the bond and $US500 was Jimmy’s fee. Ms Leonardi asked Mr Tien why he had previously claimed that Mr Zhang could speak Indonesian and he said that he had been told by Jimmy to say that, but he did not elaborate any further on the matter. Ms Leonardi then showed Mr Tien the tickets and boarding passes in the name of Mr Zhang found in Mr Tien’s luggage which showed that Mr Tien and Mr Zhang had checked in and sat together. At that point of the interview Mr Tien denied knowing Mr Zhang’s true identity but later in the interview he said that Jimmy had shown him a document containing Mr Zhang’s details.
Ms Leonardi decided to prepare a notice of intention to cancel Mr Tien’s visa under s 116 of the Act. Section 116(1) is in the following terms:
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.”
The Act provides for a procedure which must be implemented and carried out before a decision to cancel a visa can be made and be said to be valid or effective.
Section 117(1) is in the following terms:
“Subject to subsection (2), a visa held by a non‑citizen may be cancelled under section 116:
(a) before the non‑citizen enters Australia; or
(b) when the non‑citizen is in immigration clearance (see section 172); or
(c) when the non‑citizen leaves Australia; or
(d) while the non‑citizen is in the migration zone.”
Section 5 of the Act gives the expression “immigration cleared” the meaning given by s 172(1) of the Act. Section 172(1)(a) provides that 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; or
…”
Melbourne Airport is a port for the purposes of s 172(1)(a) and s 166 requires, for present purposes, that a non‑citizen entering Australia is to produce evidence of identity and an effective visa and is to give the clearance officer any information required. For present purposes, as Mr Tien had entered Australia at a port and was still at the port at the time Ms Leonardi prepared the notice of intention to cancel his visa he had not been “immigration cleared” and was accordingly in “immigration clearance” for the purposes of s 117(1)(b).
In such circumstances a notice of the grounds for cancellation was required to be given to Mr Tien in accordance with s 119 of the Act and the procedure set out in ss 120 and 121 had to be followed. These provisions are contained in Subdiv E of Div 3 of Pt 2 of the Act. Section 119(1) provides:
“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.”
Section 120 provides:
“(1) In this section, ‘relevant information’ means information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for cancelling a visa; and
(b) is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and
(c) was not given by the holder; and
(d) was not disclosed to the holder in the notification under section 119.
(2) The Minister must:
(a) give particulars of the relevant information to the holder; and
(b) ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and
(c) invite the holder to comment on it.
(3) The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances.”
Section 121 provides:
“(1) An invitation under paragraph 119(1)(b) or 120(2)(c) is to specify whether the response to the invitation may be given:
(a) in writing; or
(b) at an interview between the holder and an officer; or
(c) by telephone.
(2) Subject to subsection (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) Subject to subsection (5), 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.
(4) …
… ”
The notice was signed by Ms Leonardi and given to Mr Tien at 1.20 pm. The notice set out as possible grounds for cancellation that it had come to the Department’s attention that Mr Tien’s visa might be liable for cancellation under s 116 of the Act on the ground:
“Section 116(1)(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.”
The notice stated that cancellation of Mr Tien’s visa was being considered for the following reasons:
“You have a known association with a person by the name of ‘Jimmy’ who has been involved in the illegal entry of non‑citizens to Australia.
ON 05.11.98 you accompanied a PRCH National travelling on a fraudulent INDONESIAN passport with a fraudulent Australian visa to Melbourne Airport.”
The notice continued in the following terms:
“Section 119 of the Migration Act 1958 gives you the opportunity to comment as to why your visa should not be cancelled. Your comments could include:
n why grounds for cancellation do not exist; and
n why your visa should not be cancelled.
You are requested to provide your comments to the immigration officer at an interview at this airport by the following time: am/pm
If you choose not to comment, the immigration officer may make his/her decision based on the information available to them. If a decision is made to cancel your visa, you will be refused immigration clearance and removed as soon as practicable. If a decision is made not to cancel your visa you will be immigration cleared and allowed to enter Australia.
Factors that may be taken into account in making the cancellation decision include:
n the purpose of your travel to Australia
n the conditions on your visa you are to comply with
n the degree of hardship which may be caused to you or your family or others if your visa is cancelled
n the circumstances in which the ground for cancellation arose
n your behaviour in relation to the Department, now and on any previous occasion.
If you currently hold a permanent visa, the following factors may be taken into account:
n your present circumstances such as the strength of your family, social or business ties to Australia
n the seriousness of the ground for cancellation.”
When Ms Leonardi first gave Mr Tien the notice of intention to cancel his visa it only had written on it the first reason for cancellation. Approximately one minute after Ms Leonardi gave the notice to Mr Tien she took it back from him, said she forgot to add another matter and wrote in the second reason relating to Mr Tien’s accompanying a PRCH national travelling on fraudulent documentation.
When Ms Leonardi gave Mr Tien the notice she asked him to acknowledge its receipt in writing and to put the time of receipt on the notice. Mr Tien declined to do so until he had spoken to his solicitor. Ms Leonardi told Mr Tien that she would give him ten minutes to consider his response. That time was subsequently extended at Mr Tien’s request as he said he had been unsuccessful in contacting his solicitor who was on holiday in Queensland. He asked for more time which he was given. At approximately 2.10 pm Mr Tien told Ms Leonardi that his solicitor had called and had instructed him not to sign anything until he had consulted his books. At 2.25 pm the solicitor telephoned Mr Tien and told him to expect a telephone call from Mr Fernandez, a solicitor experienced in immigration matters. Ms Leonardi gave Mr Tien further time to allow this to occur.
At approximately 2.35 pm Mr Fernandez telephoned the airport and asked to be included in the interview by means of a conference telephone and Ms Leonardi agreed.
Although the invitation extended to Mr Tien pursuant to s 119(1)(b) of the Act invited him to show that the grounds particularised by the immigration officer did not exist and to show that there was a reason why his visa should not be cancelled at an interview at the airport, the interview did not take place at a time specified in the notice because no time was specified in the notice which was given to Mr Tien. There was therefore a failure to comply with s 121(3)(b) of the Act. Nevertheless, Mr Tien was given an adequate time within which to prepare for the interview and he was able to arrange, as he requested, for a solicitor to participate in the interview by way of a conference telephone. I will return to the issue whether the failure to specify the time of the interview in accordance with s 121(3)(b) invalidated the subsequent decision to cancel Mr Tien’s visa.
Mr Tien read to Mr Fernandez the notice of intention to cancel his visa which had been given to him and the interview commenced at approximately 2.45 pm, some eighty‑five minutes after the notice had been given to Mr Tien. Ms Lynn McKirdy, the manager of the immigration staff at Melbourne airport was also present at the interview. A description of the interview to which I now refer is a description given by Ms Leonardi and agreed to by Ms McKirdy. A written record of the interview was given to Mr Tien’s solicitors and Mr Tien had read it before the hearing commenced. He did not suggest that any part of Ms Leonardi’s description of the interview was incorrect, although he repeated that he did not have any knowledge that Mr Zhang had any false documentation, he maintained that his wife’s passport from Sierra Leone was a genuine passport and said that his Indonesian identity documentation was genuine.
Mr Tien told Ms Leonardi that he was introduced to Mr Zhang in Jakarta about one and a half months ago, that he was looking for investment opportunities and that he gave an investment proposal to Mr Zhang which required Mr Zhang to invest $500,000. Mr Tien said that Mr Zhang was accompanying him to Australia to see his company before he invested in it and to have a holiday. Mr Tien said that he paid Jimmy $US3,500 to prove his sincerity for the Australian visa, that he had been told that $US3,000 was needed to verify that he had the assets needed to apply for the visa and that the $US500 was Jimmy’s fee. Ms Leonardi asked Mr Tien if he had contacted the Australian Embassy and he said that he had telephoned the Embassy and asked if Indonesians needed a bond or proof of financial standing to travel to Australia and he was told that they did.
Mr Tien said that about one week ago he had been told that the visa was ready for collection and he went to Jakarta where he met with Mr Zhang and Jimmy and whilst he was in Jakarta he set up an office of his company Timemac Pty Ltd (“Timemac”). Mr Tien said that Jimmy Tambayong had organised the visa and Mr Tien denied any knowledge of the fraudulent Indonesian passport and said that he believed that the visa was genuine.
Mr Tien said that he was told by Jimmy to say that Mr Zhang spoke Indonesian and he said that they had only ever communicated in Mandarin. When Ms Leonardi showed Mr Tien the tickets and boarding passes bearing Mr Zhang’s name which were found in his luggage he admitted that Jimmy had shown him a paper confirming Mr Zhang’s true identity.
Mr Tien said in his affidavit that he denied that he had any knowledge that Mr Zhang had any false documentation. However he had admitted to Ms Leonardi in the interview that Jimmy had shown him a paper confirming Mr Zhang’s true identity and I am satisfied, having regard to the contents of the whole of the interview and Mr Tien’s statements, that he was aware that Mr Zhang was travelling on false documentation.
Ms Leonardi then asked Mr Tien about a refused entry of his wife, the second applicant, into Hong Kong in September 1998. Mr Tien said that his wife was refused entry because she was the holder of a Sierra Leone passport which was on a list of fraudulently issued Sierra Leone passports. Ms Leonardi put to Mr Tien that his wife’s passport had been obtained fraudulently and that she had paid for the passport. Mr Tien denied this saying the passport was lawfully obtained in recognition of the work he had conducted for the previous Sierra Leone government. He believed his wife’s passport problem was as a result of a change of government in Sierra Leone. He said that he went to the Sierra Leone Embassy in Hong Kong in September 1998 to sort the matter out. Ms McKirdy told him that there was no Sierra Leone representative in Hong Kong and never has been.
Mr Tien had in his possession an Indonesian driver’s licence in the name of William Tien Wijaya. He said he had paid $200 for the licence, that it was not genuine and that it was very easy to obtain any sort of document in Indonesia. Mr Tien said he needed an Indonesian document to be able to move around easily and conduct his business and that he used the driver’s licence, a forged document, to gain entry into military installations in Indonesia.
In his affidavit Mr Tien said that these documents were genuine and that he did not state that his licence or any other documents were forged. He said that as he had been dealing with the Indonesian Government in military communications installations it was necessary for him to obtain Indonesian documents as this was the only way he could deal with the authorities. Having regard to other answers which Mr Tien gave in the course of cross‑examination in relation to the need for non‑Indonesian citizens to obtain Indonesian identification documents in order to carry on business in Indonesia, I am satisfied that he told Ms Leonardi that the driver’s licence was not genuine.
Ms Leonardi then gave Mr Tien an opportunity to provide reasons not to cancel his visa. Mr Tien said that he did not agree that his visa should be cancelled for the following reasons:
· he came to Australia to do business and works very hard;
· he has many people who would vouch for his character;
· his company will go public next year;
· he has legitimate business interests in Australia;
· he has not committed any crime within Australia;;
· he has a five year old daughter (in fact four years old), born in Australia, who goes to school.
Ms Leonardi said that she took into account all of the information given to her during the interview but considered there were strong grounds for cancellation of Mr Tien’s visa under s 116(1)(e) of the Act for the following reasons:
· Mr Tien had acknowledged that he was travelling with a PRC national, Mr Zhang who was travelling on a fraudulent Indonesian passport containing a fraudulent Australian visa;
· Mr Tien admitted paying $US3,500 to Jimmy Tambayong for the fraudulent Australian visa issued to Mr Zhang in a false identity;
· Mr Tien was aware of Mr Zhang’s true identity and that Mr Zhang could not speak Indonesian;
· Mr Tien admitted that he had obtained a fraudulent Indonesian document in the form of an Indonesian driver’s licence to gain entry into military installations in Indonesia;
· Mr Tien’s wife was also the holder of a fraudulently obtained Sierra Leone passport, she was allowed entry back into Australia on 17 September 1998, after being refused entry at Hong Kong, and was told to contact the Department of Immigration but she had failed to do so.
Ms Leonardi then cancelled Mr Tien’s visa under s 116(1)(e) of the Act and refused him immigration clearance under s 172(1)(a)(ii) because he was unable to satisfy s 166(1)(a)(ii) of the Act, that is show a visa that is in effect. At approximately 5.00 pm Ms Leonardi gave Mr Tien notification of the decision to cancel his visa. The notification document was headed “Notification of Decision” and set out that Mr Tien had been notified on 5 November 1998 of the Department of Immigration and Multicultural Affairs’ intention to cancel his visa and that the Department had decided to cancel his visa on the ground set out in s 116(1)(e) of the Act. The notice was signed by Ms Leonardi with the date and time of 1700 hours on 5 November 1998. Mr Tien was asked to sign an acknowledgment of the notice which he did after consultation with his solicitor. Ms Leonardi then advised Mr Tien that he had been refused immigration clearance and that he would be transported to the Immigration Detention Centre pending removal from Australia.
No separate decision was taken to cancel the second or third applicants’ visas. The only document the second applicant received from the immigration officers was a property receipt for property taken from her at the time she was taken into immigration detention.
As the second and third applicants were shown as approved dependants on Mr Tien’s visa approval they had been added to his visa and each held a visa which the Department regarded as cancelled pursuant to s 140(1) of the Act by virtue of the cancellation of Mr Tien’s visa. Although it does not appear explicitly from the evidence it is apparent that the second and third applicants were taken from the place at which they were living in Melbourne to the Immigration Detention Centre some time after Mr Tien’s visa was cancelled. Once the second and third applicants’ visas were cancelled by force of the cancellation of Mr Tien’s visa in accordance with s 140 of the Act they became unlawful non‑citizens and an officer of the Department knowing that situation was obliged to detain them in accordance with s 189(1) of the Act.
Mr Tien is the chief executive officer and managing director of Timemac, an internet service provider and general telecommunications company with offices in Australia, Hong Kong and Indonesia. Its head office is in Melbourne. Timemac was incorporated on 12 August 1998 for the purpose of taking over the distribution and development in Australia and elsewhere of technology developed in the United States of America which enables the transmission of a number of channels of voice at one time on a single copper wire. Timemac is in the process of setting itself up as an internet telephone service provider and has been funded by a number of Australian investors. Mr Barry Dorr, a director of Timemac, said that the presence of Mr Tien in Australia was vital to the well being of the company.
Department of Immigration officers had visited the address where Mr Tien, his defacto wife and child lived in Melbourne and had obtained a copy of an Indonesian birth certificate which showed that Mr Tien had been born in Indonesia and that his parents were Indonesian. This document was dated 10 December 1959 and although it was obviously a fraudulent document Mr Tien maintained it was genuine because he was able to obtain it from a local authority office. He had obtained it some months ago and he said it was very easy to obtain such a document.
There was a substantial amount of cross‑examination of Mr Tien which was directed to challenging his credit and suggesting that he was involved in the business of facilitating the use of fraudulent or forged travel documentation. Mr Tien denied these allegations and said that the Indonesian documents of identity which he had obtained were necessary for doing business in Indonesia. He denied that documents which described him as an Indonesian citizen were false, apparently on the basis that although they did not record the truth they could be obtained from relevant government or local authority departments. That is why he said that the fraudulent birth certificate dated 10 December 1959 was not a false document because he paid money for it and had been given it. It was obvious that the birth certificate was fraudulent because the persons described in the document as his parents were not his parents and the date of the document was not authentic.
At Mr Tien’s residence officers of the Department also found two blank Malaysian passports said to be forged. Evidence was given by the person who gave these documents to Mr Tien as to their provenance. The respondent invites me to conclude that Mr Tien had these documents for the purpose of preparing or facilitating the use of fraudulent travel documentation. As I am undertaking a task of judicial review of a decision of a delegate of the Minister, it is not necessary to form any view on this issue. In the course of cross‑examination it was put to Mr Tien that he had in his possession in his residence in Melbourne travel documentation which was either fraudulent or intended to be used for fraudulent purposes. However, that documentation was not Australian documentation. It was submitted by Mr Gunst QC, who appeared for the respondent, that the possession of such documentation “would found a much stronger cancellation decision now”. I do not have to make a finding in respect of that matter in this proceeding as such information, evidence and documentation has not been relied upon by the respondent in the notice of intention to cancel, it has not been the subject of particularisation pursuant to s 120 of the Act and did not form part of the reasons for the decision to cancel the visa. The evidence which was brought out in Mr Tien’s cross‑examination was directed to issues of credit and the exercise of my discretion. It was not material which was available to Ms Leonardi at the time she decided to cancel Mr Tien’s visa and it was not material upon which Ms Leonardi based her decision. Save for any issue in relation to Mr Tien’s credit and the exercise of my discretion it is irrelevant to the issues which arise for consideration, namely whether Ms Leonardi committed errors as alleged and whether the procedures required by the Act to be observed were in fact observed.
Applicants’ submissions
The applicants initially relied upon two general grounds of review of the decision to cancel Mr Tien’s visa. The first was that the decision involved an incorrect interpretation of the law or an incorrect application of the law to the facts because the facts upon which the decision‑maker relied did not demonstrate, and could not demonstrate, that the presence of Mr Tien in Australia is or would be a risk to the “good order” of the Australian community.
The second ground was that procedures required by the Act to be observed in connection with the making of the decision to cancel the visa were not observed because the invitation to Mr Tien to show that grounds did not exist to cancel his visa and that there were reasons why his visa should not be cancelled, was required to specify the time at which the interview was to take place (as required by s 121(3)(b) of the Act) and it had not done so.
It was also submitted that the relevant procedures required by ss 119‑121 of the Act had not been complied with in relation to the second and third applicants’ visas and that s 140 of the Act did not result in automatic cancellation of their visas upon the cancellation of Mr Tien’s visa.
The applicants contended that the only grounds upon which the Minister was entitled to rely for the purposes of s 119(1) of the Act was the first ground or reason specified in the notice of intention to cancel the visa because once a notice has been delivered it is too late to provide another reason. The applicants rely upon the fact that approximately one minute after Mr Tien was given the notice of intention to cancel his visa Ms Leonardi took it back from him, said she forgot to add in another matter and added the second reason. In the events which occurred I do not consider much turns on this point because the first reason, in the circumstances which occurred, involves an overlap with the second reason. I am also satisfied that s 119 does not preclude the Minister or the Minister’s delegate from adding to the information given in the notice by reason of which the grounds for cancellation appear to exist. Indeed if the Minister or the Minister’s delegate is in possession of such information which is not included in the s 119 notice, the Minister or the delegate is obliged, by virtue of s 120 of the Act, to provide that information to the visa holder in the way that the Minister or the delegate considers appropriate in the circumstances: s 120(3). What Ms Leonardi did by adding the second reason on the notice was consistent with her obligations under ss 119 and 120.
Initial submissions that no time had been specified by Ms Leonardi within which Mr Tien could show that the grounds she had given for cancelling his visa did not exist and that there were reasons why his visa should not be cancelled as required by s 119(1)(b) and that Ms Leonardi was not a delegate of the Minister for the purposes of s 116 of the Act were not pressed at the hearing.
What information did the Minister’s delegate take into account?
At the hearing of the application no point was taken, or submission made, by the applicants that Ms Leonardi had taken matters into account in making her decision which she should not have taken into account. After I reserved my decision it seemed to me that there was a significant issue which had not been addressed and I sought further written submissions from the parties. The issue, in short, is whether the Minister in cancelling a visa under s 116 is limited to reasons specified in a s 119 notice and a s 120 notice. The issue arises this way. The scheme set out in Subdiv E of Div 3 of Pt 2 of the Act in relation to the procedure for cancelling visas requires the Minister, if considering cancelling a visa, to give particulars of the grounds which appear to exist for cancelling the visa and the information because of which the grounds appear to exist. The Minister is then required to invite the visa holder to show within a specified time that those grounds do not exist or that there is a reason why the visa should not be cancelled. The power to cancel a visa is found in s 116 and it sets out the grounds upon which such cancellation may occur.
It seems to me therefore that the Minister is only entitled to cancel a visa on grounds and information which the Minister is satisfied exist if the scheme in Subdiv E of Div 3 of Pt 2 has been followed, that is to say the particulars of the grounds and the information on which they are based must be notified to the visa holder in an appropriate way, which may be orally. However the scheme of the subdivision is not satisfied or complied with simply by the communication of the information. The fact of the nexus between the grounds of cancellation and the information giving rise to the grounds must be communicated to the visa holder. The visa holder must be told that the Minister or delegate considers that the information is a reason for the grounds of cancellation which were being considered. This is made clear by s 119(1)(a) and s 120(2)(b). Under s 119(1)(a) the Minister must give particulars of the information “because of which” the grounds appear to exist. Under s 120(2)(b) the Minister must ensure, as far as is reasonably practicable, that the visa holder understands why the relevant information is “relevant to the cancellation”.
Ms Leonardi concluded that there were “strong grounds” for cancellation of Mr Tien’s visa under s 116(1)(e) for the five reasons which she specified. Two of those reasons did not fall within the grounds specified in the notice of intention to cancel namely the fraudulent Indonesian driver’s licence and the second applicant’s fraudulently obtained Sierra Leone passport. Although these reasons emerged in the course of the interview Ms Leonardi did not specify those reasons as reasons for the grounds she was considering for cancellation of Mr Tien’s visa. However Ms Leonardi was only required by s 120 to give Mr Tien particulars of such information as would be part of the reasons for cancelling Mr Tien’s visa where that information had not been given by Mr Tien. It was Ms Leonardi who raised the issue of the fraudulent Sierra Leone passport and although the evidence is less clear as to who raised the existence of the fraudulent Indonesian driver’s licence I am satisfied that it was Ms Leonardi who first raised it with Mr Tien. It was apparently found in his possession and there was no reason for Mr Tien to mention it to Ms Leonardi unless he was responding to a question asked by her in relation to the licence.
I am conscious of the instruction of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272, 291 that one should not scrutinise the reasons of a decision‑maker upon “over‑zealous” judicial review. Bearing this edict in mind I am still satisfied that the two items of information particularised in the notice of intention to cancel do not cover all the reasons which led Ms Leonardi to the conclusion that there were strong grounds for cancellation of Mr Tien’s visa under s 116(1)(e) of the Act. The reasons relating to the second applicant’s Sierra Leone passport and the fraudulent Indonesian driver’s licence are not related to either particular of information in the notice. Although both matters were put by Ms Leonardi to Mr Tien in the course of the interview, Ms Leonardi did not tell Mr Tien why these matters were relevant to the cancellation of his visa nor did she take any steps to ensure that Mr Tien understood why these matters were relevant to the cancellation of his visa.
The respondent submitted that the matters of the fraudulent Indonesian driver’s licence and the fraudulently obtained Sierra Leone passport were conveyed to Mr Tien in the course of the interview in compliance with s 120. That may be so but there is no evidence that Ms Leonardi took any steps to ensure that Mr Tien understood why those matters were relevant to the cancellation of his visa, which steps were required by s 120(2)(b).
I am therefore satisfied that Ms Leonardi took into account two particulars of information in considering and making her decision to cancel Mr Tien’s visa which a correct application of the law precluded her from taking into account. The scheme of ss 119 and 120 is such that it requires the Minister or the Minister’s delegate to take into account only information which would be a reason for cancelling a visa where that information has not been given by the visa holder and has been provided to the visa holder in the manner set out in ss 119, 120 and 121.
Put this way the proposition may be said to be that Ms Leonardi took irrelevant considerations into account. If this be the correct characterisation of what Ms Leonardi did, it is not a permissible ground of review: s 476(3)(a). However a decision made on the basis of taking an irrelevant consideration into account may also be said to be a decision made by reference to an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the decision‑maker where the law requires particular matters to be taken into account in reaching the decision. Where, as here, a decision is made to cancel a visa for a reason not put as a reason to the visa holder in a s 119(1)(a) notice or in the manner required by s 120, an error of law is committed because the scheme of Subdiv D of Div 3 of Pt 2 of the Act requires only the reasons advanced in the s 119(1)(a) notice and in any s 120(2) notice to be the reasons for the grounds of cancellation.
Accordingly error of law is available as a ground of review in the present circumstances: Eshetu v Minister of Immigration and Multicultural Affairs (1997) 71 FCR 300, 306 per Davies J, 316‑317 per Burchett J; Borsa v Minister of Immigration and Multicultural Affairs (unreported, R D Nicholson J, 17 July 1998) 14‑15.
Even if I am incorrect in finding that what occurred in respect of compliance with the scheme of Subdiv D of Div 3 of Pt 2 of the Act constituted an error of law for the purposes of s 476(1)(e), it nevertheless constituted a failure to observe the procedure required by the Act to be observed in reaching the decision to cancel Mr Tien’s visa within the meaning of s 476(1)(a).
Was there an incorrect interpretation or application of the law?
The applicants’ principal submission on the proposition that the decision to cancel the visa involved an incorrect interpretation of the law or incorrect application of the law to the facts was that the presence in Australia of a person who had a “known association” with a person involved in the illegal entry of non‑citizens into Australia or who had accompanied a person travelling on fraudulent documentation could not be a risk to the “good order of the Australian community”. The health and safety of the Australian community are not relevant considerations in the present circumstances. The expression “good order of the Australian community” is not defined in the Act. I was not referred to any judicial consideration of this particular expression. It must be construed in the context in which it appears, that is, juxtaposed to the words “the health, safety” of Australian community. In that context it has, in my opinion, a public order element, that is to say it requires there to be an element of a risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law in Australia or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society. It involves something in the nature of unsettling public actions or activities. For example, a person who came to Australia and was found to be committing in Australia serious breaches of the law or criminal acts or was inciting people in the community to violence could properly be said to be a person whose presence in Australia is a risk to the good order of the Australian community. It should be emphasised that it must be the presence of the visa holder “in Australia” which constitutes or would constitute the risk to the good order of the Australian community.
There is no suggestion that whilst he has been in Australia Mr Tien has been a risk to the good order of the Australian community in the sense to which I have referred. The reasons upon which Ms Leonardi based her decision to cancel the visa do not rely upon any reasons relating to Mr Tien’s activities or anticipated activities in Australia. Rather, as he told Ms Leonardi, he has been involved in commercial activities in Australia with other Australian persons and it is not suggested that he has committed any breaches of the law whilst in Australia or that he is likely to do so. It is not suggested that his commercial activities in Australia would be a risk to the good order of the Australian community.
The respondent submitted, in substance, that Mr Tien has either participated in or, at the least, acquiesced in the use of fraudulent travel documentation for the purpose, in particular, of enabling non‑citizens illegally to enter Australia. It was also said that he is a person who is willing to use false identification documentation for himself. Mr Tien’s explanation for such use is that it is necessary to enable a person of non‑Indonesian nationality to do business in Indonesia. I express no conclusion or finding on that proposition. It is not necessary or desirable to do so in the circumstances of this case. It is not suggested by Mr Tien that he holds such a view in respect of Australia. It was open to Ms Leonardi to find on the material and information available to her that Mr Tien had been involved in the use by a non‑citizen of false travel documentation for the purpose of entering Australia but, in my opinion, such a finding does not mean that Mr Tien’s presence in Australia is or would be a risk to the good order of the Australian community.
As I have already observed, the expression “good order of the Australian community” requires a consideration of issues similar to those which arise on a consideration of the expression “public order”. That is to say one is concerned with activities which have an impact on public activities or which manifest themselves in a public way. Such activities are contemplated in s 501 which gives the Minister particular grounds on which to cancel a visa. Section 501 of the Act is in the following terms:
“(1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:
(a) subsection (2) applies to the person; or
(b) the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:
(i) be likely to engage in criminal conduct in Australia; or
(ii) vilify a segment of the Australian community; or
(iii) incite discord in the Australian community or in a segment of that community; or
(iv) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or violence threatening harm to, that community or segment, or in any other way.
(2) This subsection applies to a person if the Minister:
(a) having regard to:
(i) the person’s past criminal conduct; or
(ii) the person’s general conduct;
is satisfied that the person is not of good character; or
(b) is satisfied that the person is not of good character because of the person’s association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.
(3) The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.”
However the existence of s 501 does not limit or narrow the construction to be placed on s 116(1)(e) because s 118 provides that the powers to cancel a visa under ss 109, 116, 128, 134, 140 and 501 are not limited to or otherwise affected by each other.
Mr Gunst submitted that the good order of the Australian community encompassed the orderly and proper administration of Acts of Parliament such as the Migration Act and he relied on the breadth of the expression “good order” in military law. However in that context the expression is juxtaposed with “discipline” to provide that it is an offence to engage in conduct to the prejudice of good order and military discipline. This offence covers many disparate offences. In Chief of the General Staff v Stuart (1995) 58 FCR 299 Lockhart J said (323‑324):
“Conduct likely to prejudice the good order and the discipline of the Defence Force may take many forms. It is impossible, indeed unwise, to attempt any exhaustive definition of the words employed in s 60. The Manual of Military Law (1941, Aust ed) at p 427 contains a list of instances of offences said to be not uncommonly the subject of charges under the equivalent section of the Army Act. The learned editors of Halsbury’s (4th ed, 1983), Vol 41, par 430 suggest a broad range of conduct or behaviour which is embraced by the phrase ‘conduct to the prejudice of good order and Navel (etc)’ discipline. The type of conduct which has been included in the phrase has been considered by courts and military tribunals not infrequently. See for example Heddon v Evans (1919) 35 TLR 642 per McCardie J; and Anning’s Appeal (unreported, Woodward J, President, Cox and Gallop JJ, DFDAT 5 of 1989).
Historically, the offence has been cast always in wide terms, as it is with s 60. The words of the section are clear. It is for the courts and military disciplinary tribunals when hearing charges under s 60 or appeals from convictions under that section to determine the application of the section in particular contexts. In my view it is unnecessary and unwise to substitute other words for those that appear in the section itself in an attempt to guide military personnel and Appeals Tribunals in construing and applying the section”.
Although the 1941 Manual of Military Law includes possession of false documents as being the subject of a charge of conduct to the prejudice of good order and discipline I do not consider that much assistance is gained from military law in construing s 116(1)(e) of the Act.
I am satisfied that Ms Leonardi’s decision to cancel Mr Tien’s visa involved an error of law being an incorrect interpretation of the applicable law and an incorrect application of that law to the facts as she had found them. None of the reasons on which she was entitled to rely could be said to constitute the presence of Mr Tien in Australia as, or likely to be, a risk to the good order of the Australian community and it was not open to Ms Leonardi on the facts properly before her to reach a conclusion to that effect.
The position of the second and third applicants
The applicants submitted that the second and third applicants were visa holders independently of Mr Tien. They referred to the definitions of “holder” and “visa holder” in s 5(1) of the Act to demonstrate that they held visas in their own right. The applicants submitted that s 140 of the Act must, however, be read in the light of s 139 of the Act which provides for certain subdivisions of the Act, which include s 116 through to s 121 of the Act, to apply if a visa is held by two or more non‑citizens. It was submitted that by virtue of s 139(a) the procedure required by s 116 to s 121 of the Act applies to each of the second and third applicants. However, those sections only apply when the Minister or delegate wishes to turn his or her mind to the issue whether he or she wishes to cancel a visa. In relation to the second and third applicants that situation does not arise because the visa is automatically cancelled under s 140(1). This conclusion is confirmed by s 139(b) of the Act which provides that if a visa is held by two or more non‑citizens:
“to avoid doubt, if the visa is cancelled because of one non‑citizen being its holder, it is cancelled so that all those non‑citizens cease to hold the visa.”
As I have observed earlier the second and third applicants were approved dependants for the purposes of Mr Tien’s visa and members of his family unit within the meaning of the regulations. Accordingly, once Mr Tien’s visa was cancelled the visas of the second and third applicants were cancelled, not by a decision of the Minister but by force of the operation of s 140 which made the cancellation of the second and third applicants’ visas self executing on the cancellation of Mr Tien’s visa.
The applicants submitted that there was a substantial consequence to the procedures set out in s 116 to s 121 to be applied to the second and third applicants. It was said that as they had been immigration cleared in accordance with s 172 of the Act they were entitled to a merits review of any decision to cancel their visa. It was submitted that they had been deprived of that merits review by the procedures not being adopted and that Mr Tien’s visa could not be cancelled, thereby automatically causing the cancellation of their visas until the procedure required by the Act for cancellation of visas had been followed in relation to them. However, in my opinion, because the second and third applicants were members of Mr Tien’s family unit they had no rights to challenge the cancellation of their visas independently of any procedure taken in relation to the cancellation of Mr Tien’s visa and no decision as such was required to be taken in relation to the cancellation of their visas.
Was the required procedure in s 121(3)(b) followed?
The applicants’ second principal submission was that Ms Leonardi failed to comply with the procedure provided by s 121(3)(b) of the Act as no time had been specified for the interview. The applicants conceded that s 119(1)(b) had been complied with and that a time had been specified by Ms Leonardi within which Mr Tien could show that the grounds did not exist or that there was a reason why his visa should not be cancelled. However the applicants submitted that the combined effect of subs (1) and (3) of s 121 set out an additional procedural requirement with which the Minister’s delegate was obliged to comply.
Ms Leonardi gave Mr Tien the relevant notice required by s 119. Although the notice did not specify the time by which Mr Tien was to provide his comments as to why his visa should not be cancelled the applicants accepted that a time of ten minutes had been specified orally by Ms Leonardi and they did not seek to challenge this specification. However, the notice did not comply with s 121(3) of the Act.
As the invitation to Mr Tien for the purposes of s 119(1)(b) was an invitation to provide his comments at an interview with the immigration officer, s 121(3) required the notice to specify the place at which the interview was to take place and the time at which the interview was to take place. The notice or invitation specified the airport as the place for the interview but did not specify the time at which the interview was to take place.
There is a lack of congruity in relation to the procedure provided by ss 119 to 121 where the Minister or the Minister’s delegate invites the visa holder to show at an interview between the visa holder and a Departmental officer that the grounds for cancellation of the visa do not exist and that there is a reason why the visa should not be cancelled. Assume a situation where the time specified for the purpose of s 119(1)(b) is half an hour. That specification identifies the time up to which and within which the visa holder has the opportunity to show that the grounds do not exist for cancellation or that there is a reason why the visa should not be cancelled. Once that time has expired the Minister or the Minister’s delegate takes the next step. If the invitation to respond specifies the response to be given in writing or by telephone then the period required to be specified in s 121(2) can be the same time that is specified in s 119(1)(b). However, if the invitation to respond is specified to be at an interview, then s 121(3)(b) requires the invitation to specify the time at which the interview is to take place, that is to say, the time at which the interview is to commence. In such circumstances the time specified by s 119(1)(b) cannot also be the time required to be specified for the purposes of s 121(3)(b). Returning to my earlier assumption, if the invitation is to show, within half an hour, that the grounds do not exist or that there is a reason why the visa should not be cancelled, at what time is the interview to commence? The answer is that where an invitation specifies that the response to the invitation is to be given at an interview a second time must be specified in the invitation.
In this respect the proforma notice of intention to cancel used by Ms Leonardi is at the least ambiguous and at the most incomplete. It states:
“You are requested to provide your comments to the immigration officer at an interview at this airport by the following time: am/pm.”
Assume that a time of, say, 2.00 pm is inserted in the blank space. In such circumstances s 119(1)(b) is complied with. The deadline or outer limit within which the opportunity to respond is given to the visa holder is 2.00 pm. But when is the interview to commence? No time is specified. As the interview requires the participation of the immigration officer, a recipient of the notice is not told the time at which the interview is to take place, that is to say the interview is to commence.
If it is intended that the proforma notice specify the time required by s 119(1)(b) and also specify the time required by s 121(3) of the Act it would be necessary for the notice to specify something along the lines:
“You are requested to provide your comments to the immigration officer within one hour at an interview at this airport which will commence at
am/pm”.
Of course, the blank space must be filled in. Although the visa holder can be notified orally of the time within which he or she can show that the grounds for cancellation do not exist and that there is a reason why the visa should not be cancelled, as provided by s 119(2) and (3) of the Act, there is no similar provision in relation to the notification of the time and place of the interview.
I am satisfied that the procedure required by s 121(3) is mandatory; it should have been followed in relation to the invitation given to Mr Tien but was not so followed. The language used in ss 119, 120 and 121 makes it clear that the procedure set out is mandatory and must be followed. I do not regard this failure as insignificant or of no importance. The respondent submitted that although the Parliament had abrogated the common law rules relating to natural justice and replaced those rules with statutory rules that were clear, simple and easy to apply so that people knew where they stood, Parliament did not intend to create greater rights or create inflexible, mandatory procedures. To the extent to which this submission has the result that immigration officers and delegates of the Minister do not have to follow the procedures laid down in ss 119 to 121 of the Act, I reject the submission. I also reject the submission that the failure to comply with the procedure in s 121(3)(b) in this case was trifling. I may be doing an injustice to the respondent’s submission in this respect, but I am responding to the submission that Parliament did not intend that if there was a trifling overstepping of the specified procedures an otherwise sensible decision would be set aside.
I am conscious of the fact that it may be said that I am being pedantic about my approach to, and construction of, the provisions of Subdiv E of Div 3 of Pt 2 of the Act. However, I consider that the procedure required to be not directory but rather mandatory and for good reason. The procedure is designed to cover situations where immediate action is sought to be taken by Departmental officials at airports and where visa holders will often not have access to legal advice or, indeed, any other advice. In many situations English will not be a visa holder’s first language. In my opinion, in such circumstances, it is not only desirable but necessary that the relevant statutory provisions be the subject of strict compliance.
The statutory provisions with which I am concerned were considered by Burchett J in Zhang Jia Qing v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 519. At 532 his Honour said:
“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 (Cth). 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 CLR 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.”
I take the same approach as Burchett J, namely that “the Court should insist upon the due observance of the law” (533).
In my opinion, the procedure required to be observed and followed by s 121(3)(b) was not observed or followed with the result that the cancellation of Mr Tien’s visa was not effected lawfully.
Unlike Zhang Jia Qing (supra) Mr Tien was given the opportunity to respond to the issues and grounds raised by Ms Leonardi. He was given the opportunity to call a solicitor and when the first solicitor was not available and when later he was recommended to a specialist immigration solicitor he was given that opportunity. That solicitor participated in the interview. The time for the interview to commence, albeit not specified to Mr Tien, was extended on two occasions for his benefit. Nevertheless I cannot ignore or overlook the fact that the required statutory procedure was not followed.
The respondent submitted that if I found a procedural defect in the cancellation procedure implemented, I should nevertheless exercise the discretion committed to me by s 481 of the Act in favour of upholding the cancellation because notwithstanding the infraction of the statutory procedure which was in effect a minor blemish Mr Tien was given a very fair and ample opportunity to be heard and to respond to the grounds alleged against him. Having regard to the nature and purpose of the relevant statutory requirements I am not disposed to exercise my discretion in the manner submitted by the respondent.
So to do would be, in effect, to approve or condone a failure to comply with a procedure which the Parliament intended should be the subject of precise compliance. I have already referred to a passage in Zhang Jia Qing (supra) in which Burchett J referred to passages in the explanatory memorandum which accompanied the bill which became the Migration Reform Act 1992 (Cth). That explanatory memorandum at pages 5 and 6 contained a number of statements which made it clear that a codified set of procedures were being laid down and that compliance with them was mandatory. Those statements were:
“The Reform Bill contains an integrated package of amendments which will codify decision‑making processes relating to the grant and cancellation of visas.
…
Uncertainty exists concerning what is required to make a legally valid decision because of the uncertain content of natural justice, or procedural fairness, as that concept has evolved and continues to evolve in the courts. The Reform Bill provides for a code for decision‑making, to replace the common law rules of natural justice.
…
The Reform Bill provides for codified procedures which will apply to all decisions made under the principal Act in relation to grant and cancellation of visas.
…
As noted above, the codified procedures to be established by the Reform Bill will replace the common law rules of natural justice or procedural fairness. Those rules require that a person has a reasonable opportunity to present his or her case and, in most circumstances be given an opportunity to respond to relevant and credible information which is adverse to that case. The rules are embodied in the codified provisions set out in the Reform Bill which will also delineate precisely (emphasis added) what is required to comply with the rules:”
Putting the matter another way, it would have the effect that Departmental officers and delegates of the Minister do not have to regard themselves as always bound to observe the statutory requirements. Where the Parliament has seen fit to codify the procedures to be followed where cancellation of a visa is contemplated on the grounds set out in s 116 of the Act the Court should not condone a failure to comply with the code.
It was also submitted on behalf of the respondent that even if there was a technical flaw in the procedure adopted on the day, if the cancellation of the visa was set aside, the decision to cancel would be revisited and, given the amount of the material now available about various actions and activities of Mr Tien, the decision to cancel would be the same as the decision made on 5 November 1998. I express no view on whether the material now available is such as to entitle the respondent or his delegate to cancel Mr Tien’s visa if the proper and required procedural steps are followed. But even if that were to be the case, it would not, in my view, be appropriate for me to find that I should therefore condone an earlier breach of the statutory requirements to be followed before the earlier decision to cancel was made.
United Nations Convention on the Rights of the Child
In the further written submissions received from counsel for the applicants my attention was directed to Article 3 of the United Nations Convention on the Rights of the Child (“the Convention”). The Convention came into force on 2 September 1990 and was ratified by Australia with effect from 16 January 1991. Article 3 states:
“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
It has not been incorporated into Australia’s domestic law by statute.
This ground had not been raised in the application for review but counsel for the respondent, quite properly, did not oppose the issue being raised. I gave the parties the opportunity to make further oral submissions on this issue.
The applicants submitted that Ms Leonardi knew that a child was involved in the matter because when she gave Mr Tien the opportunity to provide reasons why his visa should not be cancelled Mr Tien told her that he had a five year old daughter, born in Australia, who goes to school. Thus, it was said that the best interests of the child should have been a primary consideration but that they were not. Reliance was placed on Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 and Davey Browne v Minister for Immigration and Multicultural Affairs (unreported, Wilcox J, 29 May 1998). It followed, said the applicants, that there had accordingly been an error of law within s 476(1)(e) of the Act as the law applicable to the third applicant, the child, had been incorrectly applied.
The respondent submitted that as a matter of fact the rights of the child had been taken into account but that in any event there was no action involved “concerning” the child as the decision to cancel Mr Tien’s visa did not affect the child’s visa; rather it was the Act (s 140) which cancelled the child’s visa.
The foundation for the applicant’s submission is found in the judgments of the majority (Mason CJ, Deane and Toohey JJ) in Teoh. At 286‑287 Mason CJ and Deane J said:
“It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute.”
However, their Honours went on to hold that ratification of an international treaty creates a legitimate expectation, subject to one qualification, that administrative decision‑makers will act in conformity with the treaty. At 291 their Honours said:
“… Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision‑makers will act in conformity with the Convention and treat the best interests of the children as ‘a primary consideration’.”
(The qualification to which I referred is the reference to “absent statutory or executive indications to the contrary”). However, their Honours were concerned to point out at 291 that:
“The existence of a legitimate expectation that a decision‑maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision‑maker to act in a particular way is tantamount to treating it as a rule of law. It incorporates the provisions of the unincorporated convention into our municipal law by the back door.”
What is important for present purposes is that their Honours pointed out what should happen if a decision‑maker proposed to make a decision inconsistent with the legitimate expectation. They said at 291 that in such circumstances:
“… procedural fairness requires that the person affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course.”
In other words, if a decision‑maker proposed to give a decision which did not accord with the principle that the best interests of the child were to be a primary consideration the decision‑maker was bound to bring this fact to the attention of the party affected.
Toohey J referred to the same proposition at 302:
“In any event it is not that decision‑makers must give effect to the precept that ‘the best interests of the child shall be a primary consideration’. There may be other interests carrying equal weight. Rather, a decision‑maker who does not intend to treat the best interests of a child as a primary consideration must give the person affected by the decision an opportunity to argue that the decision‑maker should do so.”
As Wilcox J noted in Davey Browne (supra) 15 the decision in Teoh:
“excited concern at a bureaucratic and political level.”
On 10 May 1995 the then Minister for Foreign Affairs and the then Attorney‑General issued a joint statement the purpose of which was described as being “to restore the position to what it was understood to be prior to the Teoh case”. The statement referred to the reference to “statutory or executive indications to the contrary” and said:
“We now make such a clear and express statement. We state, on behalf of the Government, that entering into an international treaty is not reason for raising any expectation that government decision‑makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law. It is not legitimate, for the purpose of applying Australian law, to expect that the provisions of a treaty not incorporated by legislation should be applied by decision makers. Any expectation that may arise does not provide a ground for review of a decision. This is so both for existing treaties and for future treaties that Australia may join.”
On 25 February 1997 the new Minister for Foreign Affairs and the Attorney‑General issued a replacement statement which included the following:
“Therefore, we indicate on behalf of the Government that the act of entering into a treaty does not give rise to legitimate expectations in administrative law which could form the basis for challenging any administrative decision made from today. This is a clear expression by the Executive Government of the Commonwealth of a contrary indication referred to by the majority of the High Court in the Teoh case.”
A Bill to give effect to this statement the Administrative Decisions (Effect of International Instruments) Bill 1997 passed the House of Representatives in 1997 but it is still before the Senate. Notwithstanding the publication of this statement I do not consider that the statement has the effect apparently intended. I consider that the reference to “statutory or executive indications to the contrary” referred to by Mason CJ and Deane J in Teoh (supra) is a reference to indications made at or about the time the relevant treaty is ratified. There is considerable force in the observations of Hill J in Department of Immigration and Ethnic Affairs v Ram (1996) 69 FCR 431 where in the context of the first ministerial statement on 10 May 1995 his Honour said at 437‑438:
“When, in Teoh, Mason CJ and Deane J refer to ‘executive indications to the contrary’, it may well be that their Honours intended to refer to statements made at the time the treaty was entered into, rather than to statements made years after the treaty came into force.
When initially referring to executive comments, their Honours do so in the context of ratification, an act that speaks both to the other parties to the Convention and to the people of Australia as well as to the world. I doubt their Honours contemplated a case where at the time of ratification, Australia had expressed to the world and to its people its intention to be bound by a treaty protecting the rights of children, but subsequently, one or more ministers made statements suggesting that they at least had decided otherwise.”
In Davey Browne (supra) Wilcox J did not find it necessary to determine the effectiveness of the second Ministerial statement on 25 February 1997 because the Tribunal was required by the Criminal Deportation Policy announced in 1992, when making a decision on whether a deportation order should be issued, to apply the terms of the Convention.
In Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 the Full Federal Court (Burchett and Branson JJ, Whitlam J dissenting) held that, in a deportation case similar to Teoh, a deportation decision by the Administrative Appeals Tribunal should be set aside as no notice had been given that the Tribunal did not intend to give effect to the principle that the best interests of the child shall be a primary consideration. It was accepted in that case, as indeed is made clear in Teoh, that:
“ … the law declared by the decision in Teoh is concerned with procedural fairness; it does not create a substantive rule, applicable irrespective of obligations procedurally imposed.” (at 615 per Burchett J)
The decision which was set aside had been made on 14 November 1995 and the Full Court did not have to consider the significance of the later Ministerial Statement on 25 February 1997.
In the circumstances before the Court Ms Leonardi became aware during the interview that Mr Tien had a five year old daughter (in fact four years old) who was born in Australia and goes to school in Australia. Ms Leonardi said Mr Tien told her this in the course of providing reasons not to cancel his visa. Consistently with the decision in Teoh and the approach taken by the Full Court in Vaitaiki (supra) Ms Leonardi was obliged to give Mr Tien notice if she proposed to make a decision inconsistent with the legitimate expectation that the best interests of his child were to be a primary consideration and if she decided not to give the best interests of the child the consideration required by the Convention she was obliged to tell Mr Tien of her intention not to do so, so that he might have the opportunity to respond to that matter cf Vaitaiki (supra) per Burchett J at 615.
I do not accept the respondent’s submission that Ms Leonardi in fact considered the rights of the third applicant either in the manner contemplated by Teoh or at all. The evidence does not support the submission that Ms Leonardi took account of the third applicant’s best interests. The only evidence which bears on this issue is Ms Leonardi’s statement that she took into account all of the information given to her during the interview but she considered there were strong grounds for cancellation of Mr Tien’s visa for the reasons which she identified. This evidence is so general that I am not satisfied that Ms Leonardi specifically turned her attention to, or focused, on “the best interests” of the third applicant at all.
Even if it could be said, contrary to my finding, that Ms Leonardi did turn her mind to, or focus on, the best interests of the child, the evidence does not support the conclusion that Ms Leonardi considered the best interests of the child as a primary consideration. I am satisfied on the evidence before the Court that Ms Leonardi, in reaching her decision to cancel Mr Tien’s visa did not consider the best interests of the child as a primary consideration nor did she tell Mr Tien that she was intending not to consider the best interests of the third applicant as a primary consideration. Adopting the words of Wilcox J in Davey Browne (supra) 24, Ms Leonardi:
“… did not grapple with the obligation under the Convention to make the best interests of [the child] a primary consideration.”
The decision which Ms Leonardi made did not necessarily have to be a decision in the best interests of the child but Ms Leonardi was obliged to address that issue as a primary consideration at the same time as she was considering the matters which tended to support a decision adverse to the best interests of the child. As I noted earlier, if she decided not to make the best interests of the child a primary consideration she was bound to draw this decision to the attention of Mr Tien and give him an opportunity to respond to it.
If, as the respondent submitted, Ms Leonardi took the view that she had performed the Convention obligation by taking into account the information supplied by Mr Tien that he had a five year old daughter born in Australia who goes to school, then for the reasons I have given, she either incorrectly interpreted the applicable law or incorrectly applied the law to the facts she had found.
I do not consider that the Ministerial Statement made on 25 February 1997 is such an “executive indication to the contrary” as to displace the application of the Teoh principle to the circumstances before the Court. The executive indication to the contrary contemplated by the judgment of Mason CJ and Deane J is one that a decision‑maker or decision‑makers in particular circumstances will not act in accordance with a Convention. The Ministerial Statement says nothing about the manner in which decision‑makers will go about their task in reaching a decision. Rather the Ministerial statement appears to be an attempt (in my view unsuccessful) to reverse or overrule the principle for which Teoh is authority. I do not consider that it is a “clear expression by the Executive of a contrary indication”. Put shortly, the Statement appears to be saying that Teoh is not the law. However, Teoh is a principle to be observed by decision‑makers unless and until the Parliament or the Executive tells decision‑makers not to act in accordance with treaties; or until the Parliament legislatively overrules Teoh. In order for a Ministerial Statement to constitute an executive indication to the contrary (as referred to by Mason CJ and Deane J in Teoh) it would be necessary for the statement to say something to the effect that decision‑makers will not act, or are directed not to act, in accordance with particular provisions of particular Conventions or treaties.
I reject the respondent’s submission that Ms Leonardi’s decision to cancel Mr Tien’s visa was not an “action concerning” the third applicant. That submission is inconsistent with the reasoning in Teoh (supra). Ms Leonardi’s decision concerned the third applicant because it was the trigger which had the effect of requiring her father to be removed from Australia and the decision had a further self‑executing direct effect on the third applicant as it caused the cancellation of her visa as well as the visa of her mother, the second applicant, because of the provisions of s 140 of the Act. In O’Connor v LEAW Pty Ltd (1997) 42 NSWLR 285, Rolfe J said at 303 that the term “concerning” is “a word of wide import”. It is sufficiently wide to mean that Ms Leonardi’s decision was a decision “concerning” the third applicant having regard to the dependency of her visa on the visa of her father and the consequence to her of the removal of her father from Australia.
It follows therefore that the decision to cancel Mr Tien’s visa should be set aside and that the respondent pay the applicants’ costs of the application including reserved costs. I will hear the parties on the form of the order.
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I certify that this and the preceding thirty‑two (32) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg |
Associate:
Dated: 3 December 1998
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Counsel for the Applicant: |
Mr M W Gerkens |
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Solicitor for the Applicant: |
Fernandez Canda & Co |
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Counsel for the Respondent: |
Mr C Gunst QC |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
13, 25 and 27 November 1998 |
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Date of Judgment: |
3 December 1998 |
