FEDERAL COURT OF AUSTRALIA
Sandoval v Minister for Immigration & Multicultural Affairs [2001] FCA 1237
MIGRATION – visa – cancellation – tourist (short stay) visa – cancelled at airport by Minister’s delegate after interview – question in application form “Why do you want to visit Australia?” – applicant gave one reason – delegate found applicant had another reason – relationship with Australian citizen – whether incorrect answer given – whether omission of information makes answer incorrect – finding by delegate that applicant attempted to mislead embassy – whether conclusive of purpose not to remain in Australia temporarily – whether discretion exercised – effect of Migration Series Instructions
WORDS & PHRASES – “incorrect answer”
Migration Act 1958 (Cth) ss 45(2), 97, 99, 100, 101, 104, 105, 107, 108, 109, 110, 111, 116(1)(d), 116(1)(g), 119, 121, 122, 125, 476, 481(1), 496(1), 496 (1A), 499
Migration Regulations 1994 (Cth) regs 1.18, 2.07, 2.43(1)(j), Sch 1 item 1218, Sch 2 items 676.211, 686.211
Acts Interpretation Act 1901 (Cth) s 15AB(1), 49A
Migration Reform Act 1992 (Cth) s 11
Migration Legislation Amendment Act 1989 (Cth) s 11A
Migration Series Instruction no 316
Saravananan v Minister for Immigration & Multicultural Affairs [2001] FCA 938 cited
Jalal v Minister for Immigration & Multicultural Affairs [2000] FCA 207 (2000) 60 ALD 779 cited
Minister for Immigration & Multicultural Affairs v Jalal [2000] FCA 1370 (2000) 102 FCR 63 referred to
Minister for Immigration & Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 cited
JOSE LUIS SANDOVAL AND PENELOPE RUTH FENNER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 794 of 2001
GRAY J
4 SEPTEMBER 2001
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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V 794 of 2001 |
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BETWEEN: |
JOSE LUIS SANDOVAL FIRST APPLICANT
PENELOPE RUTH FENNER SECOND 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. The decision of Victor Vella, a delegate of the respondent, made on 3 August 2001,
to cancel the tourist (short stay) visa subclass 676 held by the first applicant, be set
aside.
2. The respondent pay the applicants’ costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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V 794 of 2001 |
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BETWEEN: |
FIRST APPLICANT
PENELOPE RUTH FENNER SECOND 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
1 This is an application pursuant to s 476 of the Migration Act 1958 (Cth) (“the Migration Act”) for judicial review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”) to cancel the first applicant’s visa.
The facts
2 The following summary of the facts is taken largely from the affidavit of Victor Vella, sworn on 10 August 2001 and filed in the proceeding.
3 The first applicant, Mr Sandoval, is a citizen of Venezuela. He arrived at Melbourne Airport on the morning of 3 August 2001 on a flight from the United States of America. A customs officer referred him to a delegate of the Minister to assess the genuineness of Mr Sandoval’s visit to Australia. The delegate, Mr Vella, an immigration inspector, decided to conduct a full interview.
4 Mr Sandoval held a visa known as a tourist (short stay) visa subclass 676, granted on 25 July 2001 by an officer of the Department of Immigration and Multicultural Affairs at the Australian Embassy in Santiago, Chile (“the Embassy”). (The Court was told that the Australian Consulate in Venezuela does not deal with applications for visas under the Migration Act, which are therefore made to the nearest embassy.) The visa authorised multiple entry into Australia until 25 July 2002 and permitted Mr Sandoval to remain in Australia for a maximum of three months from the date of each arrival. It contained a condition, known as condition 8101, prohibiting Mr Sandoval from working in Australia. It also contained a condition, known as condition 8503, preventing Mr Sandoval from applying for a further visa during his stay in Australia.
5 In the course of the interview, Mr Vella asked Mr Sandoval who his friends in Australia were. He named the second applicant, Penelope Ruth Fenner, and her husband, Peter Fenner. He said he was going to stay with them at their home at an address in Glen Iris. Mr Vella asked Mr Sandoval how he came to know Ms Fenner. He said that he had met Ms Fenner and her husband in India in December 2000, he had spent over two months with them and that they both invited him to come to Australia. He said that he had come to Australia to visit them and to help them translate two of their books into Spanish. He hoped at the same time to improve his English. He said that Ms Fenner and her husband were not paying him anything to help with the translating, but that they were providing him with free accommodation and food and they might show him around Australia. He also said that they had paid for his return airline ticket from Miami to Melbourne. Mr Vella suggested to Mr Sandoval that he would be working and being paid in food and accommodation. Mr Sandoval responded by saying that Ms Fenner had written a letter to the Embassy, explaining that he was going to be helping with translating the books and that he was trying to improve his English, and that the Embassy had still given him the visa.
6 Mr Vella then stopped the interview and contacted the Embassy, asking for a copy of the letter of Ms Fenner in support of the visa application. He received a copy of the application itself. The application is in a form described as Form 48R and headed “Application to visit Australia for tourism or other recreational activities”. The form is filled in by means of handwriting in the spaces provided. In response to the question “Do you have ANY relatives, friends or contacts in Australia?” Mr Sandoval listed Ms Fenner, Dr Peter Grenck (apparently Peter Fenner) and another person. He gave the Glen Iris address as the address of both Ms Fenner and Dr Peter Grenck. The third person’s address was another address in Victoria. He described each of those persons as “friend”. In response to the question “Why do you want to visit Australia? (include details of any dates that are of special significance to your visit)”, Mr Sandoval wrote “My Australian friends are offering me a great opportunity to improve my English and to help them with their books”. In response to the question “Is someone else providing support for your visit to Australia?” Mr Sandoval named Ms Fenner and Dr Peter Fenner, describing each as “friend” and specifying the Glen Iris address as the address of both. The application was dated 20 June 2001.
7 Mr Vella also received from the Embassy a copy of a statutory declaration of Ms Fenner, made on 24 April 2001. The contents of that declaration are as follows:
“My husband Dr Peter Fenner + myself, Penelope Fenner have invited Jose Sandoval to come to stay with us in Australia for six months, or longer if he wishes, in order that he may further improve his English. He will be working on a translation of our book, for no charge, into Spanish. We invite him to stay fully accommodated in our home and will happily provide him with whatever he needs to enjoy his visit here to Australia. We trust this letter will suffice to support the multiple entry visa he requires for visiting us here in Melbourne. Should any additional information be required we would be happy to supply it to assist Jose in arriving in Australia!”
8 While the interview was suspended, customs officers searched Mr Sandoval’s luggage. They found a bundle of correspondence between Mr Sandoval and Ms Fenner, being e-mails that had apparently passed between them and had then been printed. The contents of the correspondence revealed the existence of an intimate relationship between Mr Sandoval and Ms Fenner. It is unnecessary to go into the details of the correspondence, but counsel for the Minister relied on two specific passages, so I set them out. The first was in an e-mail from Mr Sandoval to Ms Fenner, dated 20 February 2001, where Mr Sandoval said:
“THE MORNING YOU CALL ME I SPOKETO (sic) MY KIDS AND THEY REACT LIKE THEY SAW ME YESTERDAY, SO I DON’T FEEL I HAVE ANYTHING HERE IN VZLA.NOTHING STRONGER THAM (sic) THE LOVE I FEEL FOR YOU…(sic) SO FROM THE BOTTOM OF MY HEART I AM READY TO GO TO AUSTRALIA TO TRY ANEW (sic) LIFE WITH YOU IF YOU WANT ME THERE.”
The second passage is in an e-mail from Mr Sandoval to Ms Fenner dated 22 April 2001, where Mr Sandoval referred to:
“MY PURPOSE OF MAKE YOU HAPPY FOR THE REST OF MY LIFE MARRIAGE OR NOT MARRIAGE,IN (sic) VZLA,INDIA (sic) OR AUSTRALIA,IN (sic) TWO WEEKS OR NEXT YEAR…i (sic) DON’T KNOW HOW… (sic) BUT BABA DOES.”
(The reference to “BABA” concerns matters of religion, or spirituality, which apparently are common to Mr Sandoval and Ms Fenner.)
9 With the benefit of the material supplied by the Embassy, and the documents found in Mr Sandoval’s luggage, Mr Vella resumed his interview of Mr Sandoval. He questioned Mr Sandoval further about his reason for coming to Australia and his relationship with Ms Fenner. Mr Sandoval said that helping with the translation of books into Spanish was not the reason he was in Australia. Other reasons to visit Australia were that he wanted to have fun and tour the country and do some activities. He was going to be improving his English and to help Ms Fenner and Dr Fenner with the translation of their books. Mr Sandoval said that he and Ms Fenner were very good friends. He then said that they love each other and that they love each other like friends. Later, he said that he was in love with her and that she loved him too. He said that Ms Fenner was separated from her husband at the time that he met her and that her husband was already living with another woman at that time. Mr Vella then asked Mr Sandoval the real reason he came to Australia. Mr Vella suggested that it was to be with Ms Fenner. Mr Sandoval agreed that he came to Australia because he loved Ms Fenner. Mr Vella asked whether Mr Sandoval was going to marry Ms Fenner. He replied that he could not, because she was married and he was still married. Mr Vella then stopped the interview again.
10 After an interval of thirty-five minutes, at 1.10 pm, Mr Vella recommenced interviewing Mr Sandoval. Mr Vella’s superior, Mr Lim, was also present. Mr Vella told Mr Sandoval that he was considering cancelling the visa. He told Mr Sandoval that documents provided with the application for the visa, and parts of the e-mail correspondence, indicated that Mr Sandoval had attempted to mislead the Embassy into granting him the visa. Mr Lim told Mr Sandoval that the documents that he provided in support of his application for the visa gave a different story to the correspondence. He said that they showed that Mr Sandoval was not in Australia only to visit and translate, but that there were other reasons, like his relationship with Ms Fenner. Mr Vella then gave to the applicant a form, described as form 1111, headed “Cancellation of a temporary visa under section 116 of the Migration Act 1958”. Part A of this form, headed “Notice of intention to cancel visa”, had been filled in by Mr Vella. The printed form stated:
“It has come to the Department’s attention that there may be grounds for cancellation of your visa under section 116 of the Migration Act 1958 for the following reasons:”
Mr Vella had entered in handwriting the words:
“Non genuine visitor. Docs provided with visa application + docs found in pax luggage indicate attempts were made to mislead Australian Embassy for the grant of the visa.”
11 Immediately following these words, the form continued:
“If this is the case, your visa may be cancelled under:
Subsection 116(1) and, if applicable, regulation 2.43(1) .
and if applicable, must be cancelled according to subsection 116(3) and regulation 2.43(2) .
because prescribed circumstances exist.”
In the first box, Mr Vella handwrote the letters “g” and “d”. In the second box, he wrote the letter “J”. Partly inside and partly outside the second box, he wrote “s101”. There was no marking in the third box.
12 The form also contained the following:
“The Migration Act 1958 gives you the opportunity to comment on the intention to cancel your visa and to give reasons why your visa should not be cancelled. Your comments could include:
· why grounds for cancellation do not exist; and
· why your visa should not be cancelled.
Provide your comments at interview.
Interview will be held on . beginning at am/pm
At the following location .
You will need to provide your comments within . minutes of the start of the interview.”
In the first box, Mr Vella had filled in the date “03/08/01”. In the second box, he wrote “1320”, without deleting “am” or “pm”. In the third box he wrote “Melb Airport” and in the fourth box he wrote the figures “10”.
13 This part of the form is signed by Mr Vella and dated 3 August 2001 at 1310 pm. Mr Sandoval by his signature acknowledged receipt of the notice on that day at 1312 pm.
14 When Mr Vella gave the form to Mr Sandoval, he told Mr Sandoval that Mr Vella would give him ten minutes to get his thoughts together and to tell Mr Vella why he should not cancel the visa. Mr Sandoval said that he wanted to respond immediately, but Mr Vella told him that he had to take time to gather his thoughts.
15 Mr Vella recommenced the interview at 1.30 pm. Mr Lim was again present. Mr Sandoval said that he did not intend marry Ms Fenner yet, both because they were both still married and because they had not decided to get married. He agreed that he had discussed marriage with Ms Fenner, but that she did not want to get married yet. Mr Sandoval said that he did not disclose his relationship with Ms Fenner in the visa application because he did not think it was appropriate, and because he wanted to protect Ms Fenner’s reputation.
16 Mr Vella told Mr Sandoval that some of the things in his visa application were not true. He said that the statutory declaration that Ms Fenner had provided was not true, because it said that she and her husband wanted Mr Sandoval to come to Australia and to live in their house with them, yet Ms Fenner’s husband did not live in that house and was living with another woman.
17 Mr Lim told Mr Sandoval that the problem was that Mr Sandoval had not told the whole truth. He had said only what he thought he should say in order to get the visa.
18 The interview was stopped again at 1.40 pm, so that Mr Vella could consider what the applicant had said. After taking his response into consideration, Mr Vella decided to cancel the visa. He completed part B of the form 1111, entitled “Record of decision to cancel visa”. His entry in the form, describing Mr Sandoval’s reasons why the ground for cancellation did not exist, was:
“They are in love, have discussed marriage, she decided against it. He came here because A/A is a famous country. He intends to abide by the visa conditions. He did not disclose his relationship with Penny Fenner because he felt it was not appropriate”.
Where the delegate considered that grounds existed for the cancellation of a visa, the form made provision for the entry of a reference to the relevant provisions of s 116(1) of the Migration Act and, if applicable, reg 2.43 of the Migration Regulations. In and near the box next to the reference to s 116(1), Mr Vella wrote “g & d(s101).” In the box next to the reference to reg 2.43, Mr Vella wrote “J”.
19 The form then made provision for “Evidence of and reasons why grounds for cancellation exist”. Mr Vella wrote:
“Non-genuine visitors (sic). Docs provided with visa application + those found in luggage confirmed attempts were made to mislead Australian Embassy to facilitate grant of visa.”
Subsequently, the form made provision for the decision-maker to indicate whether the decision was to cancel or not to cancel the visa holder’s visa. Mr Vella ticked the item indicating his decision to cancel the visa. The form then contained the following:
“In weighing up the grounds for cancellation, evidence available and other factors, the reasons for the decision are:”.
Mr Vella wrote in the space provided:
“Grounds for cancellation outweigh factors not to cancel.
Assessed as non-genuine visitor.”
The document was dated 3 August 2001 and the time recorded as 1355 pm.
20 Part C of the document was entitled “Notification of decision (in immigration clearance)”. The relevant boxes in this part of the form were filled in to indicate that the Department of Immigration and Multicultural Affairs had notified Mr Sandoval on 3 August 2001 of its intention to cancel the visa and that the department had decided that there were grounds for cancellation of the visa under s 116(1) “g d (s101)” and, if applicable, reg 2.43 “J” and had decided to cancel the visa. The form was signed by Mr Vella on 3 August 2001 at 1355. It was also signed by Mr Sandoval, to acknowledge receipt of the notice, on 3 August 2001 at 1357.
21 At 1.55 pm, Mr Vella informed Mr Sandoval that he had decided to cancel the visa. In his affidavit, Mr Vella said:
“I told him that when we find discrepancies between the real reason and what is said to the Embassy, that is a reason to cancel a visa.”
22 Mr Vella prepared a report shortly after he finished interviewing Mr Sandoval. The report substantially confirms the account given in Mr Vella’s affidavit. It contains additional information, namely that at 12.02 pm, Mr Vella spoke to Ms Fenner. She told him that: she and Mr Sandoval had met in India in December 2000; Mr Sandoval was only in Australia to visit, holiday and improve his English; he would practise by translating a book that she wrote; she would provide him with accommodation and had paid for his airline ticket; and that her husband would confirm her statement and could be contacted by telephone. The report also indicated that Mr Vella informed Mr Sandoval that he was detained as an unlawful non-citizen and would remain in immigration detention until removal from Australia. The airline on which Mr Sandoval had arrived was informed that Mr Sandoval was refused immigration clearance and that he was to be removed. The airline advised that it was able to remove Mr Sandoval the following day at 11.20 am.
The proceeding
23 The applicants made an urgent application to the Court on the same day, to restrain the Minister from removing Mr Sandoval from Australia. I heard the application that evening and made an order restraining the Minister from removing Mr Sandoval from Australia until Tuesday, 7 August 2001, when the matter could be dealt with more fully. On 7 August, the Minister by his counsel gave an undertaking not to remove Mr Sandoval from Australia until 4.15 pm on 24 August 2001. That undertaking was of great assistance, as it obviated the possibility that the Court might need to deal with the issues twice, once on the question whether the interlocutory order should be extended and again on a final basis. I heard the matter on 24 August 2001. The Minister by his counsel gave a further undertaking not to remove Mr Sandoval from Australia until after judgment is delivered.
The legislation
24 Part 2 of the Migration Act is entitled “Control of arrival and presence of non-citizens”. It contains Div 3, which is headed “Visas for non-citizens”. Within Div 3 is Subdiv D, headed “Visas may be cancelled on certain grounds”. The first provision in Subdiv D is s 116. Subsection (1) of that section provides:
“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 cleared¾it 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.”
Subsections (2) and (3) are not relevant to this proceeding. Section 117(1) provides as follows:
“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 117(2) relates to permanent visas and is not relevant to the present case.
25 Section 116(1)(g) refers to a prescribed ground for cancelling a visa. The grounds prescribed for the purposes of that provision are found in reg 2.43 of the Migration Regulations, made pursuant to s 504 of the Migration Act. For present purposes, the relevant ground is to be found in reg 2.43(1)(j), which provides:
“in the case of the holder of:
(i) a Subclass 676 (Tourist (Short Stay)) visa; or
(ii) a Subclass 686 (Tourist (Long Stay)) visa ¾
that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit, or remain in, Australia as a visitor temporarily for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, child, brother or sister of the visa holder or for another purpose, other than a purpose related to business or medical treatment”.
The grounds of the application
26 It is apparent from the form 1111 that Mr Vella gave to Mr Sandoval that Mr Vella relied on the grounds in s 116(1)(d) and (g) of the Migration Act. The prescribed ground on which he relied pursuant to s 116(1)(g) was the ground found in reg 2.43(1)(j). Counsel for the applicants contended that Mr Vella erred in law with respect to both grounds. He further contended that Mr Vella erred in law in the exercise of the discretion given to him by s 116(1). It is convenient to examine each of these contentions separately.
The incorrect information ground
27 Section 116(1)(d) gives power to cancel a visa if the Minister’s delegate is satisfied of certain matters. The visa holder must either have not entered Australia or have entered Australia but not have been immigration cleared. The Minister’s delegate must also be satisfied that the visa would be liable to be cancelled under Subdiv C if its holder had so entered and been immigration cleared. In the present case, there is no issue that Mr Sandoval had entered Australia but had not been immigration cleared. There is a substantial issue as to whether his visa would have been liable to be cancelled under Subdiv C if he had been immigration cleared.
28 Section 116(1)(d) contains, immediately following the reference to Subdiv C, the words “(incorrect information given by holder)”. This appears to be an attempt to provide a guide to a reader of s 116 as to the nature of the subject matter dealt with in Subdiv C. If it is intended to be an attempt to encapsulate in five words the full effect of Subdiv C, it is plainly inadequate. Subdiv C deals with a number of subjects, including the failure to answer questions in an application for a visa and a passenger card, incorrect answers to questions in an application for a visa and a passenger card, and the use of bogus documents.
29 Subdivision C of Pt 2 of the Migration Act is entitled “Visas based on incorrect information may be cancelled”. Section 97 contains definitions for the purposes of the subdivision. For present purposes, the relevant definition is as follows:
“application form, in relation to a non-citizen, means a form on which a non-citizen applies for a visa, being a form that subsection 45(2) allows to be used for making the application.”
Section 45(2) of the Migration Act provides that regulations may prescribe “the way for making” an application for a visa, in specified circumstances, of a specified class, or both.
30 The following provisions found in Subdiv C appear to be relevant to the present case:
“99 Information is answer
Any information that a non-citizen gives, causes to be given or that is given on his or her behalf to the Minister, an officer or a person or Tribunal reviewing a decision under this Act in relation to the non-citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen’s application form, whether the information is given orally or in writing and whether at an interview or otherwise.
100 Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave the answer or caused the answer to be given did not know that it was incorrect.
101 Visa applications to be correct
A non-citizen must fill in his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given.
…
104 Changes in circumstances to be notified
(1) If circumstances change so that an answer to a question on a non-
citizen’s application form or an answer under this section is incorrect
in the new circumstances, he or she must, as soon as practicable,
inform an officer on an approved form of the new circumstances and
of the correct answer in them.
(2) If the application for the visa was made in Australia, subsection (1)
only applies to changes in circumstance before the visa is granted.
(3) If the application for the visa was made outside Australia, subsection
(1) only applies to changes in circumstances after the application
and before the applicant is immigration cleared.
(4) Subsection (1) applies despite the grant of any visa.
105 Particulars of incorrect answers to be given
(1) If a non-citizen becomes aware that:
(a) an answer given in his or her application form; or
(b) an answer given in his or her passenger card; or
(c) information given by him or her under section 104 about the
form or card; or
(d) a response given by him or her under section 107;
was incorrect when it was given, he or she must, as soon as
practicable, notify an officer, on an approved form, of the
incorrectness and of the correct answer.
(2) Subsection (1) applies despite the grant of any visa.”
…
107 Notice of incorrect applications
(1) If the Minister considers that the holder of a visa who has been
immigration cleared (whether or not because of that visa) did not
comply with section 101, 102, 103, 104 or 105 or with subsection (2)
in a response to a notice under this section, the Minister may give the
holder a notice:
(a) giving particulars of the possible non-compliance; and
(b) stating that, within a period stated in the notice as mentioned
in subsection (1A), the holder may give the Minister a written
response to the notice that:
(i) if the holder disputes that there was non-compliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108
that, in spite of the statement under
sub-subparagraph (A), there was
non-compliance¾shows cause why the visa
should not be cancelled; or
(ii) if the holder accepts that there was non-compliance:
(A) give reasons for the non-compliance; and
(B) shows cause why the visa should not be
cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice,
within the period stated as mentioned in subsection
(1A), that he or she will not give a written
response¾when that notice is given; or
(ii) if the holder gives the Minister a written response
within that period¾when the response is given; or
(iii) otherwise¾at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under
section 104 or 105 are not affected by the notice under this
section; and
(f) requiring the holder:
(i) to tell the Minister the address at which the holder is
living; and
(ii) if the holder changes that address before the Minister
notifies the holder of the Minister’s decision on whether
there was non-compliance by the holder¾to tell the
Minister the changed address.
(1A) The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa¾the period
prescribed by the regulations or, if no period is prescribed, a
reasonable period; or
(b) otherwise¾14 days.
(1B) Regulations prescribing a period for the purposes of paragraph (1A)
(a) may prescribe different periods and state when a particular period
is to apply, which, without limiting the generality of the power, may be
to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa
holders in a particular place); or
(d) visa holders in a stated class of people (who may be visa
holders in a particular place) in stated circumstances.
(2) If the visa holder responds to the notice, he or she must do so without
making any incorrect statement.
…
108 Decision about non-compliance
The Minister is to:
(a) consider any response given by a visa holder in the way
required by paragraph 107(1)(b); and
(b) decide whether there was non-compliance by the visa holder in
the way described in the notice.
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by
the holder of a visa; and
(b) considering any response to the notice about the
non-compliance given in a way required by paragraph
107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister
must do so if there exist circumstances declared by the regulations to
be circumstances in which a visa must be cancelled.
110 Cancellation provisions apply whatever source of knowledge of
non-compliance
To avoid doubt, sections 107, 108 and 109 apply whether or not the Minister became aware of the non-compliance because of information given by the holder.
111 Cancellation provisions apply whether or not non-compliance deliberate
To avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent.”
31 Counsel for the Minister contended that the reference in s 116(1)(d) to Subdiv C is to be taken not as a reference to the whole of Subdiv C, but merely as a reference to a ground or “trigger” for cancellation of a visa to be found in Subdiv C. If the legislature had intended to accomplish only this, it is difficult to see why it chose to use the wording it did in s 116(1)(d). It would have been simpler to specify as a ground for cancellation in s 116 the fact that a visa holder had failed to answer a question in an application form or a passenger card, given an incorrect answer in an application form or a passenger card, or given a bogus document. It may have been necessary to make provisions mirroring those in ss 99 and 100, so as to extend the meaning of the word “answer” to cover all information provided, and so as to make it clear that incorrectness in an answer is not confined to deliberate incorrectness. Instead, the legislature chose to rest the ground in s 116(1)(d) on liability of the visa to be cancelled under Subdiv C. The reference to Subdiv C in s 116(1)(d) is therefore intended to import all of the provisions of Subdiv C into the ground in s 116(1)(d), except those applicable only to someone who has entered Australia and been immigration cleared.
32 Sections 107, 108 and 109 are therefore inapplicable, as they contain procedural safeguards applicable only to visa holders who have entered Australia and been immigration cleared. In the case of a person who has entered Australia but has not been immigration cleared, those procedural steps are replaced by the ones set out in Subdiv E. Section 119 (found in Subdiv E) provides that, if the Minister is considering cancelling a visa under s 116, the Minister must notify the holder that there appear to be grounds for cancelling it, give particulars of those grounds and of the information on which they are based, and invite the holder to show within a specified time that the grounds do not exist or there is a reason why the visa should not be cancelled. Unlike s 107(1)(b), s 119 does not provide specifically for a written response to the notice. Indeed, pursuant to s 121 (also found in Subdiv E), the invitation is to specify whether the response may be given in writing, at an interview or by telephone. Subdiv E contains s 122, which provides its own power for regulations to prescribed time limits in respect of steps. Unlike s 107(1A), there is no default provision requiring that a reasonable time be allowed. Section 125 makes specific provision for a non-citizen in immigration clearance who is not taken into questioning detention. In such a case, the period within which he or she may respond to the invitation is to end when, or before, he or she ceases to be in immigration clearance.
33 For the ground specified in s 116(1)(d) to be established, there must be an application form, conforming to the definition in s 97. The definition has two elements. The first element is that the form is one on which a non-citizen applies for a visa. The second is that s 45(2) allows that form to be used for making the application. Section 45(2) does not itself refer to forms, much less to forms which non-citizens are allowed to use for making applications. Section 45(2) simply provides for the making of regulations prescribing the ways for making applications for various visas. The regulations made under s 45(2) are found in the Migration Regulations. Regulation 1.18 provides that the Minister may, in writing, approve forms for use in making an application for a visa. Regulation 2.07(1)(a) provides, among other things, that, for the purposes of s 45 of the Migration Act, if an application is required for a particular class of visa, the approved form (if any) to be completed by an applicant is one of the matters set out in the relevant part of Sch 1 to the Regulations. Schedule 1 sets out classes of visas together with certain conditions, including fees. In each case, there is a reference to a form by its number, but in no case is the form itself set out. Item 1218 relates to a short stay (visitor) (class TR) visa. Clause (1)(a)(ii) specifies for the class of persons of whom Mr Sandoval is one form 48 or 48R.
34 Counsel for the Minister tendered in evidence a blank form 48R with a sheet attached, on which is a stamp indicating that the form has been approved by a delegate of the Minister on 1 May 2000. This is the form used by Mr Sandoval. It is a form of A4 paper size, four pages long, with two additional pages of information. As I have said in describing Mr Sandoval’s form, it has spaces in which an applicant is expected to fill in information in response to questions. In some cases, an applicant is invited to “If insufficient space, attach additional details” or “If insufficient space, attach an additional statement.” In the case of the question “Why do you want to visit Australia? (include details of any dates that are of special significance to your visit)”, a space of two lines is provided, and there is no invitation to expand by attaching additional details or an additional statement.
35 In order that it can be said that the application form completed by Mr Sandoval is an “application form” within the definition of that term in s 97 of the Migration Act, it is necessary to make certain assumptions. First, it is necessary to assume that a form referred to by a number in an item in Sch 1 to the Migration Regulations, is a form “set out in the relevant Part of Schedule 1”, for the purposes of Reg 2.07. It is then necessary to assume that approval by a delegate of the Minister of a particular form, pursuant to reg 1.18, is a prescription of the way for making an application for a particular visa, for the purposes of s 45(2). I note that the word “prescribed” is defined in s 5(1) of the Migration Act as meaning “prescribed by the regulations”. I also note that s 495 of the Migration Act provides that the Minister may, in writing, approve a form for the purposes of a provision of the Migration Act in which the expression “approved form” is used. The expression “approved form” is not used in s 45(2). (An example of a provision in which that expression is used is s 105(1), set out above.) The process of prescribing by means of regulations is a well-established one, to which are attached safeguards, including parliamentary scrutiny, pursuant to Pt XII of the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”). There might be a real question as to whether a regulation can, in effect, delegate the prescription of the form, which the regulations require to be used, to a minister. Section 49A of the Acts Interpretation Act might be relevant to that question. There might be a question whether the power, found in s 496 of the Migration Act, for the Minister to delegate to a person any of the Minister’s powers under the Migration Act extends to the delegation of the power to approve a form, so as to cause that form to be prescribed for the purposes of s 45(2), as a way of making an application. These questions were not argued in the present case in anything like the manner that would be necessary for their determination. In particular, no reference was made to the question whether there is a provision in the Migration Act designating the approved form as a disallowable instrument, so as to subject it to the scrutiny of parliament pursuant to s 46A of the Acts Interpretation Act. In the circumstances, I am prepared to make the assumptions necessary to hold that the form completed by Mr Sandoval was an “application form” as defined in s 97 of the Migration Act, and therefore was an application form for the purposes of s 101.
36 The concentration of the argument in the present case was upon the question whether it was open to Mr Vella to find that Mr Sandoval had given an incorrect answer in the form in response to the question “Why do you want to visit Australia?” For this purpose, counsel for the Minister argued that the contents of the statutory declaration of Ms Fenner must be taken into account, by reason of s 99. Counsel for the applicants did not submit to the contrary.
37 It is apparent that Mr Vella did not find that there was falsity in the information provided by the applicants that Mr Sandoval intended to improve his English, and that he intended to translate a book or books into Spanish. What troubled Mr Vella was that Mr Sandoval had not revealed the true position. It is significant that Mr Lim, Mr Vella’s superior, was present at that part of the interview in which Mr Vella gave to Mr Sandoval notice that Mr Vella was considering cancelling the visa. At that time, as Mr Vella says, he told Mr Sandoval that documents provided with the application for the visa and parts of the correspondence indicated that Mr Sandoval had attempted to mislead the Embassy into granting him the visa. Mr Lim’s view of the situation was that these documents showed that Mr Sandoval was not in Australia only to visit and translate, but that there were other reasons, like his relationship with Ms Fenner. Again, when the interview resumed for Mr Sandoval to give his response, Mr Lim was present. According to Mr Vella’s affidavit, Mr Lim expressed the view that the problem was that Mr Sandoval had not told the whole truth. He had only said what he thought he should say in order to get the visa. Mr Vella’s written account of the grounds for cancellation of the visa referred to attempts to mislead the Embassy to facilitate the grant of the visa. According to his evidence, when he handed to Mr Sandoval the record of the decision to cancel the visa, he told Mr Sandoval that discrepancies between the real reason and what is said to the Embassy were a reason to cancel a visa.
38 This case was therefore argued largely on the question whether, in the circumstances, it was open to Mr Vella to be satisfied that Mr Sandoval had given an incorrect answer in his application form, within the meaning of s 101(b) of the Migration Act. At the heart of this issue is the question whether an answer can be incorrect by reason of the omission of information. There is no authority bearing directly on that question. The present provisions, including s 101, were inserted into the Migration Act by the Migration Reform Act 1992 (Cth). Prior to that, the comparable ground for cancellation of a visa under the Migration Act referred to the making of “a statement which is false or misleading in a material particular”. See s 11A of the Migration Act inserted by the Migration Legislation Amendment Act 1989 as it stood prior to amendment by s 11 of the Migration Reform Act 1992 (Cth). As I have said, the current provisions refer simply to “incorrect” answers, and are accompanied by provisions making it clear that there is no requirement of a mental element (such as an intention to mislead or deceive) and that information provided by another person is taken to be part of the answer. Counsel for the Minister argued that an incomplete or misleading answer, although literally true, is incorrect. In particular, he submitted, that an answer to the question “Why do you want to visit Australia?” that does not convey the principal, or predominant, purpose of a visit to Australia is incorrect. An applicant for a tourist visa, who specifies tourism as the reason for his or her desire to visit Australia, but who really intends to work in Australia should say so, the argument went, so that the application can be assessed according to the true situation.
39 If the law were as counsel for the Minister argued, it would give rise to many difficulties. Some of those difficulties are readily apparent when consideration is given to the process of applying for a visa of the type held by Mr Sandoval. They arise from the fact that people are often motivated to take action by many reasons. These reasons may be of varying degrees of importance, or may differ in their proximity to or remoteness from the making of a decision to take the action.
40 The criteria to be satisfied at the time of application for the kind of visa described as a subclass 676 tourist (short stay) visa are found in Sch 2 to the Migration Regulations. They include, in cl 676.211, the following:
“The applicant:
(a) seeks to visit Australia, or remain in Australia as a visitor:
(i) for the purpose of visiting an Australian citizen, or
Australian permanent resident, who is a parent, spouse, child,
brother or sister of the applicant; or
(ii) for a purpose other than a purpose related to business or
medical treatment”.
It is significant that this criterion refers to “a purpose”. It is true that, by s 23(b) of the Acts Interpretation Act, the singular includes the plural, but a single purpose of one of the kinds described is all that is required. A simple illustration is enough. A person may apply for a visa, having two purposes. One may be to visit a relative. Another may be to engage in sightseeing. Such a person, reading the criteria for the visa carefully, will realise that it is only necessary to specify one of the purposes in order to obtain the visa. It could hardly be contended that the omission of the other purpose would result in a determination that an incorrect answer has been given.
41 In Saravanan v Minister for Immigration & Multicultural Affairs [2001] FCA 938, Heerey J dealt with a case concerning an application for a tourist (short stay) visa. The visa applicant in that case wished to investigate opportunities to start a business in Australia. At
[20], Heerey J drew attention to the existence of permanent, temporary and bridging visas as separate categories. His Honour said:
“So the concept of a visa which permits a person to enter and remain in Australia for a particular purpose but only for a limited period is fundamental to the Act’s visa system (see s 31(1) and (2)).”
At [21] - [23], his Honour went on:
“The visa in question here, the Tourist (Short Stay) visa, is quintessentially a temporary one, so the language of cl 676.211 has to be construed in the light of that circumstance and also in a way which is consistent with the structure of the Regulations.
‘Purpose’ in cl 676.211(a) is speaking of what the visa applicant proposes to do during the period for which the visa is to be granted. Of course the applicant may have in mind another purpose as to what he or she wants to do after the end of the visa period but that must necessarily involve another visa - or perhaps naturalisation. That is not the relevant purpose with which s 676.211(a) is concerned.
It may be true, as counsel for the Minister submitted, that activity which is preparatory to the establishment of a business, such as market research or raising finance, is ‘related’ to that business. However in the present context the business must be one which is to be carried on during the period of the visa.”
It could hardly be contended that, in limiting the answer to the question “Why do you want to visit Australia?” to disclosing a purpose to come and familiarise himself with Australia would have caused the visa applicant in that case to have given an incorrect answer. The purpose that must be disclosed in answer to that question is a purpose that will satisfy the criteria for the visa.
42 Similarly, it is possible that a person applying for a tourist (short stay) visa might be considering embarking on a long-term relationship with an Australian citizen. It is possible that such a person would wish to come to Australia for a short period, to see whether he or she would be suited to living in Australia, or to see whether he or she would be suited to living with the other person, or for both purposes. Again, it is hard to see that a disclosure of the purpose of familiarising the applicant with Australia could be said to be an incorrect answer. As in the case of the person proposing to investigate business opportunities, the visa applicant giving a limited answer tailors the answer to the nature of the visa. Given that all that is possible is a short-term visit, it is not surprising that a reason appropriate to a short-term visit should be given.
43 It might be thought that the size of the space provided on the form 48R for an answer to the question “Why do you want to visit Australia?” is an indication that all that s 101 requires is a brief description of the reason. If that were the case, it would be clear that a correct answer to the question did not require a list of all the reasons that an applicant might have, at whatever level of abstraction they might exist. At best, however, the form is a mere creature of the Migration Act and cannot govern its construction. Even if it could be said that the view of the delegate who approved form 48R was that only a short form of reason was required, the view of such a person cannot govern the construction of the legislation. Section 101(b) directs attention to the question, not to the space provided for answering it. I do not rely at all on the size of the space in the form in seeking to determine whether an incorrect answer within s 101(b) of the Migration Act can be an answer that omits information. On the other hand, it is legitimate to note that an applicant is not invited to attach an additional statement or details, when giving an answer to the question “Why do you want to visit Australia?” The only invitation extended is to concentrate on significant dates. By contrast, in relation to other questions, the invitation to attach further material is given. This suggests that there are some questions to which complete or exhaustive answers are required, but that the question “Why do you want to visit Australia?” is not one of them. The form of the question, when compared with other questions, gives some guide as to whether an answer that omits information is to be considered an incorrect answer.
44 Counsel for the Minister sought to place reliance on the explanatory memorandum that accompanied the Bill which became the Migration Reform Act 1992 (Cth). Such extrinsic material can be used as an aid in the construction of legislation even in the absence of ambiguity in the legislation. See s 15AB(1) of the Acts Interpretation Act. The relevant passage from the explanatory memorandum is as follows:
“Persons who mislead the Department when making applications
30 The Bill inserts a new structured legislative scheme into the Act to deal with non-citizens who provide incorrect information about their circumstances in an application. The onus is on all non-citizens to ensure all questions asked in an application form or passenger card are answered accurately. The primary information requested will relate to identity, eligibility to come to Australia, personal circumstances such as health, character and prior exclusions or deportations from any country. The onus is on the non-citizen to advise the Department of changes in circumstances in situations which would affect the grant of a visa or immigration clearance.
31 Where it is found that information which should have been disclosed but has not there is a procedure which will allow the non-citizen to correct the misinformation and to explain why his or her visa should not be cancelled. There will be situations prescribed in regulations which will mitigate the cancellation procedure and there will be situations set out in regulations which will make it obligatory for cancellation to take place. If a person is found to be an unlawful non-citizen the decision will be prospective, and not retrospective as in the past. The decision that a person is an unlawful non-citizen will be reviewable on the merits.
32 The proposed amendments aim to simplify current arrangements under Section 20 and to prevent non-citizens from benefiting from the failure to disclose or provide accurate and truthful information in a visa application.”
45 It must be remembered that the legislation that was being replaced was concerned with the making of a statement that was false or misleading in a material particular. Counsel for the Minister relied on the use of the word “mislead” in the heading of this part of the explanatory memorandum. He contended that the explanatory memorandum revealed an intention not to change the substance of the previous legislation. This is not clearly apparent. What the memorandum heralded was “a new structured legislative scheme”, aimed “to simplify current arrangements”. The emphasis in par 30 is on the provision of incorrect information, ensuring that questions are answered accurately. In par 32, there is a reference to “failure to disclose”. The problems of construction to which the explanatory memorandum gives rise are at least as difficult as the problems of construction of the legislation itself, if not more so. Unless an explanatory memorandum gives a clear guide as to the intention behind the drafting of legislation, it is an unsafe aid. In the present case, I find the explanatory memorandum of no use in construing the legislation.
46 The legislative history itself is a safer guide. The fact that, when enacting s 101, the legislature abandoned the use of the term “misleading” and opted to use “incorrect” suggests that whether an answer passes the test of s 101(b) is to be assessed on what is in, rather than what is omitted from, the answer. The same construction is suggested by the retention of the phrase “false or misleading in a material particular” in s 234(1)(b) and (c) of the Migration Act. (Section 234(1) creates offences, including the offence of making a statement that is false or misleading in a material particular and the offence of delivering a document containing such a statement. The offences can be committed in various situations, including applying for a visa.) Such a construction is in line with the object of the legislation, considered as a whole. An applicant for a visa is expected to give an answer to each question which is correct. Thus, if a question seeks exhaustive information (for instance “Do you have a spouse, de facto, any children, or fiance who will NOT be travelling with you?”), then an omission of any such person will be an incorrect answer. A more open-ended question, such as “Why do you want to visit Australia?” requires an answer that is accurate so far as it goes, but will not be considered to be incorrect because it omits information.
47 In Jalal v Minister for Immigration & Multicultural Affairs [2000] FCA 207 (2000) 60 ALD 779, Finkelstein J dealt with a case in which an applicant for a visa had failed to provide information in response to a question in his application form. The application form required details of all countries where the applicant had lived in the previous ten years. It also required the applicant to state whether he or she had been excluded from or required to leave any country. The applicant in that case did not mention that he had lived in India. At [14], his Honour said:
“Mr Jalal does not deny that he provided incorrect information in his application form and during the course of his interview with an immigration officer. Thus he accepts that he did not comply with s 101. However, Mr Jalal points out that before he obtained his visa he had acknowledged having given incorrect information and he had supplied the correct information.”
48 The issue in that case was whether it was open to the Minister to cancel the visa under s 116(1)(d). His Honour held that the power to cancel a visa was not available where the visa
was granted in the knowledge that the applicant had provided incorrect information. At [30], his Honour said:
“the obvious intention of the new provisions is to ensure that the Minister or his department is not misled in relation to an application for a visa.”
49 Counsel for the Minister relied on this statement as an indication that s 101(b) of the Migration Act should be construed so as to include cases in which a misleading answer is given. The single sentence of Finkelstein J would be the slenderest of authority for such a proposition, if indeed it was authority at all. His Honour was not directing his attention to the issue. The question involved in Jalal was very clearly a question that required complete information, so that the omission of a fact led to the conclusion that the answer was incorrect. That issue was dealt with by concession and was not even considered by his Honour. On appeal, in Minister for Immigration & Multicultural Affairs v Jalal [2000] FCA 1370 (2000) 102 FCR 63, the Full Court did not discuss the question either. The judgment of the Full Court turned on the legislative history. The application for the relevant visa had been made at an earlier date than the coming into operation of the provision that became the present s 101 of the Migration Act. The Court dismissed the appeal, but apparently on a basis not argued before Finkelstein J.
50 I am of the view that the question “Why do you want to visit Australia?” requires an applicant to give a reason, disclosing a purpose, genuinely held by the applicant, falling within the criteria for the visa concerned. It does not require an applicant to set out all of the reasons that he or she may have for wishing to come to Australia. As long as the reason specified in the answer is a genuine one, the answer cannot be said to be incorrect for the purposes of s 101(b) of the Migration Act. Any attempt to cancel the resulting visa on the basis that the applicant in fact had a purpose or purposes other than the one specified in the answer must be dealt with on a ground other than that specified in s 116(1)(d). An obvious one is the ground found in reg 2.43(1)(j) of the Migration Regulations, prescribed in s 116(1)(g).
51 For these reasons, I am of the view that it was not open to Mr Vella, as a matter of law, to be satisfied that Mr Sandoval had given an incorrect answer to the question “Why do you want to visit Australia?” in his application form, upon the basis that the answer omitted information that Mr Vella considered to be relevant. Unless he was satisfied that the answer itself, or the material supplied with it, contained incorrect information, he could not lawfully have found that the ground specified in s 116(1)(d) was made out. In purporting so to find, Mr Vella made an error of law, being an error involving an incorrect interpretation of the applicable law. Such an error is a ground for judicial review under s 476(1)(e) of the Migration Act.
52 According to his affidavit, Mr Vella told Mr Sandoval in his interview that the statutory declaration of Ms Fenner was not true when it said that she and her husband wanted Mr Sandoval to stay with them in their home, because her husband did not live in that house and was living with another woman. Counsel for the Minister contended that, in this respect, Mr Vella found that Mr Sandoval had given an incorrect answer to the question in response to which he provided this information.
53 The only evidence Mr Vella had with respect to Ms Fenner’s husband was that, in December 2000, when Mr Sandoval and Ms Fenner met, Ms Fenner was separated from her husband, who was living with another woman. There was no indication that he was living at an address different from that of Ms Fenner, although this might have been a reasonable inference from the information that the couple had separated and the husband was living with another woman. The information provided in Ms Fenner’s statutory declaration, made in late April 2001, was to the contrary, in so far as it referred to an invitation “to stay with us” and “to stay … in our home”. The information provided in Mr Sandoval’s application for a visa was also to the contrary. In two places, he gave the same address for Ms Fenner and her husband. Mr Vella does not appear to have asked Ms Fenner about this issue when he spoke to her on the telephone, and does not appear to have taken up the invitation to speak to her husband. Nevertheless, the issue was an issue of fact and was one for Mr Vella to decide. It was open to him to infer that the separation that existed in December 2000 involved separate houses and that this state of affairs continued at the date of Mr Sandoval’s arrival in
Australia. The grounds in s 476 of the Migration Act would not permit the Court to interfere with such a decision.
54 It is clear, however, that this question of fact was not the basis on which Mr Vella made his decision that the ground specified in s 116(1)(d) was made out. His concern, and that of Mr Lim, was with the incompleteness of Mr Sandoval’s answer to the question “Why do you want to visit Australia?” There is no indication that he relied on the alleged falsity of the statement with respect to Ms Fenner’s husband’s address in concluding that the ground in s 116(1)(d) was made out, or that he would have cancelled Mr Sandoval’s visa on that ground if he had not reached his conclusion about the incorrect answer to the question “Why do you want to visit Australia?” Although he swore an affidavit for the purposes of this proceeding, Mr Vella did not say that his conclusion about the falsity of the information as to Ms Fenner’s husband’s address was a ground for cancellation of the visa. Nothing in the document Mr Vella gave to Mr Sandoval suggests that he paid any regard to it in deciding whether the ground specified in s 116(1)(d) was established.
55 For these reasons, I am of the view that the applicants have made out their ground of review in relation to the reliance by Mr Vella on the ground specified in s 116(1)(d) of the Migration Act.
The improper purpose ground
56 Mr Vella’s selection of the ground designated in s 116(1)(g) of the Migration Act raises directly the issue of Mr Sandoval’s purpose in coming to Australia. As I have said, the ground prescribed by reg 2.43(1)(j) deals expressly with the purpose of a visa holder. In doing so, it mirrors item 676.211 and item 686.211 of Sch 2 to the Migration Regulations, being part of the criteria to be satisfied for a tourist (short stay) visa and a tourist (long stay) visa respectively. It should be noted that each of these visas can be given to a person who has either the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, child, brother or sister of the applicant, or any other purpose except a purpose related to business or medical treatment. The first of these is specific. The purpose required is the purpose of visiting a close relative. The second is general. An applicant for a visa may hold any purpose at all so long as it is not a purpose related to business or medical treatment. Thus, the purpose of visiting a person with whom the visa applicant has or wishes to have a relationship, but who is not a close relative, satisfies that part of the criteria which the visa applicant must satisfy at the time of making an application. Once a visa is granted, it cannot be cancelled on the ground specified in s 116(1)(g) because it is discovered that the visa holder in fact has the purpose of forming or continuing a relationship with a person other than a close relative. Such a purpose is legitimate for this kind of visa. It cannot be supposed, therefore, that Mr Vella cancelled Mr Sandoval’s visa because he discovered Mr Sandoval’s purpose to continue his relationship with Ms Fenner.
57 There is another aspect of the mental element of a visa holder referred to in reg 2.43(1)(j). That is the intention only to visit, or remain in, Australia as a visitor temporarily. It must be assumed that, when he used the expression “non-genuine visitors”, Mr Vella was intending to express a finding that Mr Sandoval either did not have at the time when he applied for his visa, or had ceased to have, an intention only to visit, or remain in, Australia as a visitor temporarily. There can be little doubt that it was open to Mr Vella to reach that conclusion as a matter of fact. The material in the correspondence between Mr Sandoval and Ms Fenner to which I have referred earlier, gave rise to a suggestion that their aim was to be together indefinitely. Mr Vella was entitled to act on this evidence in reaching a finding that Mr Sandoval did not intend only to visit Australia temporarily. Further, in considering the ground specified in s 116(1)(d) of the Migration Act, Mr Vella was not constrained by the requirements of Subdiv C, or by the need to find that any particular answer given by Mr Sandoval in his application form had been incorrect. Mr Vella was entitled to find, on the evidence in the correspondence found in Mr Sandoval’s luggage that Mr Sandoval had attempted to mislead the Embassy by concealing the fact that he was coming to Australia to further his relationship with Ms Fenner. Mr Vella was entitled to treat that finding as relevant to Mr Sandoval’s intention as to the length of time he would stay in Australia, and to use the finding in reaching a conclusion on that issue.
58 That is not the end of the matter, however. The evidence discloses that Mr Vella treated his finding that Mr Sandoval attempted to mislead the Embassy as conclusive of a finding that the ground specified in s 116(1)(g) was made out. Mr Vella’s affidavit makes it clear that both Mr Vella and his superior, Mr Lim, referred only to the element of misleading the Embassy by failing to tell the whole story. I have set out the passages already. On his own evidence, when he informed Mr Sandoval that he had decided to cancel the visa, Mr Vella told Mr Sandoval that “when we find discrepancies between the real reason and what is said to the Embassy, that is a reason to cancel a visa.”
59 It is plain that, as a matter of law, a finding that a visa holder has not told the whole truth but has attempted to mislead an officer of the Department of Immigration and Multicultural Affairs in an application for a visa is not conclusive of the ground in s 116(1)(g). A delegate of the Minister considering whether to cancel a visa is obliged to consider whether, notwithstanding the concealment or the attempt to mislead, the visa holder had a genuine intention to visit, or to remain in Australia, as a visitor temporarily. Mr Vella should have taken this step, but did not. He regarded himself as bound by his finding that Mr Sandoval had attempted to mislead the Embassy to conclude that Mr Sandoval was a non-genuine visitor. Mr Vella thereby made an error of law, being both an error involving an incorrect interpretation of the applicable law and an incorrect application of the law to the facts as found. For this purpose, the applicable law is s 116(1)(g) and reg 2.43(1)(j). Mr Vella failed to appreciate the steps the law required him to take in his reasoning and therefore failed to apply the law correctly to the facts.
The exercise of discretion
60 It was common ground between the parties that the opening words of s 116(1) of the Migration Act give to a delegate of the Minister a discretion whether or not to cancel a visa, if one or more of the grounds in that subsection is found to have been made out.
61 Section 496(1) of the Migration Act provides that the Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under the Migration Act. Section 496(1A) provides that the delegate is, in the exercise of a power delegated under subs (1), subject to the directions of the Minister. Section 499(1) also provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) provides that a person or body must comply with a direction under subs (1). Pursuant to these powers, the Minister produces from time to time directions known as Migration Series Instructions (MSIs), giving directions to delegates as to how to exercise various powers delegated. In MSI no 316, issued on 26 April 2001, the Minister gave directions concerning the cancellation of visas under various sections of the Migration Act, including s 116. MSI no 316 includes the following:
“17 MAKING THE CANCELLATION DECISION - SECTIONS 109 and 116
17.1 Weighing up the evidence
17.1.1 In making the cancellation decision the delegate is required to weigh the evidence available. Based on the visa holder’s response (if any):
· are there grounds for cancellation?
· do the reasons for not cancelling outweigh the reasons for cancelling?
17.1.2 If the visa holder responds to a notice of intention to cancel after the period specified in the notice but a decision has not yet been made, the response must still be taken into consideration.
17.2 S116 - Primary considerations - cancellation of temporary visa(2)
17.2.1 Assuming the ground for cancellation is made out, primary considerations when considering whether or not to exercise the discretion to cancel a temporary visa under s116 are:
· the purpose of the visa holder’s travel to and stay in Australia;
· the extent of non-compliance with any conditions subject to which the visa was granted. For example, a visitor who is located working illegally may have committed a more serious breach of conditions than a student visa holder who is found working two hours over the allowed twenty hours per week, but is still attending lectures and meeting course requirements;
· the degree of hardship which may be caused to the visa holder and any family members. NB: If there are children in Australia whose interests could be affected by cancellation of a visa, or who themselves would be affected by consequential cancellation, then decision-makers have an obligation to treat as a primary consideration the effect of cancellation on any such children (Article 3 of the Convention on the Rights of the Child requires that the best interests of any relevant child - anyone under 18 years of age - in Australia, no matter what the child’s immigration status, be treated as a ‘primary consideration’.)
· the circumstances in which the ground for cancellation arose;
· the person’s behaviour in relation to the Department, now and on previous occasions. For example, the truthfulness of statements made to officers of the Department or in applications before the Department and their overall record of compliance with visa conditions, provisions and/or undertakings.
…
17.4 S116 - Secondary considerations
· any other matters the visa holder raises.”
62 Mr Vella was bound to comply with the directions contained in MSI no 316 when he made the decision to cancel Mr Sandoval’s visa. The obligation arose from s 496(1A) or s 499(2A) of the Migration Act. It is unnecessary to choose between these two provisions because, if one did not apply then the other did. Mr Vella was therefore obliged to weigh the evidence available, including Mr Sandoval’s response. He was obliged to consider whether each of the primary considerations was present or absent and to consider the weight to be given to its presence or absence. To do so, he was required to make findings of facts bearing upon the primary considerations. Perhaps the most obvious of these in the present case is the degree of hardship which a decision to cancel might have caused to Mr Sandoval. Mr Vella was also obliged to consider, as secondary considerations, any other matters Mr Sandoval raised.
63 In the notice he gave to Mr Sandoval, Mr Vella did say that the grounds for cancellation outweighed the factors not to cancel. I do not consider that this is indicative of a process of actual weighing. It is the use of a formula. While the use of a formula may be convenient as a means of expressing reasons for a decision, care must be taken to ensure that the formula is not used to conceal error in the decision making process. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 266 per Brennan CJ, Toohey, McHugh and Gummow JJ. In the present case, it is significant that, immediately following the use of the formula, Mr Vella wrote “assessed as non-genuine visitor.” This is consistent with the evidence in his affidavit as to what he said to Mr Sandoval when handing him the notice, namely that discrepancies between the real reason and what is said to the Embassy is a reason to cancel a visa. It is also consistent with the view expressed by Mr Lim in two different segments of the interview. Mr Lim appears from the evidence to have had a strong view about how the matter should be resolved. It would have been difficult for Mr Vella to express or to give effect to a view contrary to that of his superior. It may be for this reason that Mr Vella did not carry out the process of exercising his discretion according to the directions given in MSI no 316. Despite swearing an affidavit in this proceeding, Mr Vella did not refer to that process at all. He did not refer to a single factor that he weighed in Mr Sandoval’s favour, or to any findings that could relate to any of the primary considerations listed in MSI no 316. Despite the use of the formula, Mr Vella appears to have failed to apprehend that he should have been exercising a discretion. He regarded himself as obliged to cancel Mr Sandoval’s visa once he had reached the conclusion that Mr Sandoval had attempted to mislead the Embassy when he made his application for the visa.
64 The cancellation of a visa is a very serious matter. Not only does it deprive the visa holder of the right to enter, or to remain in, Australia. It may have consequences should the visa holder ever apply again for a visa to enter Australia or, perhaps, another country. If it occurs upon arrival in Australia cancellation of a visa will almost invariably result in the waste of a significant expenditure of money on an airfare or other transport costs. What might appear to an officer of the Department of Immigration and Multicultural Affairs to be a simple case may turn out to be considerably more complicated. The condition of the visa holder is also relevant. In the present case, Mr Sandoval had arrived that very morning at the end of a very long flight. Such a flight usually leads to a state of exhaustion and to the condition known as jet lag, the result of crossing many time zones. To cancel a visa and send the visa holder back to his or her place of origin immediately may have significant consequences in relation to the person’s health. The cancellation of Mr Sandoval’s visa would not only have been disappointing to him, it would have entailed considerable financial loss because a substantial air fare would have been wasted. In any case, a visa holder is entitled to a decision made according to law, including the exercise according to law of any discretion involved, if action is taken to cancel the visa. In the present case, the entitlement is certainly no less than normal.
65 The error made by Mr Vella in this respect was again an error of law within s 476(1)(e) of the Migration Act. It can be characterised either as an error involving an incorrect interpretation of the applicable law or as incorrect application of the law to the facts as found. Again, the applicable law is s 116(1)(g) and reg 2.43(1)(j). It is possible that the error could be characterised as a failure to take into account relevant considerations and therefore as an error of law of a kind identified by McHugh, Gummow and Hayne JJ (with whom Gleeson CJ expressed agreement) in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 at [73] - [74]. In the present case, it is plain that the effect of s 496(1A) and s 499(2A) of the Migration Act was to require the considerations expressed in MSI no 316, or such of them as were relevant to the particular case, to be taken into account.
Conclusion
66 I have found that Mr Vella made an error of law in concluding that the ground specified in s 116(1)(d) of the Migration Act was made out, an error of law in concluding that the ground in s 116(1)(g) was made out and an error of law in failing to exercise the discretion required by s 116(1) of the Act, when he decided to cancel Mr Sandoval’s visa. The consequence of these errors is that Mr Sandoval is entitled to an order pursuant to s 481(1)(a), setting aside the decision to cancel the visa.
67 I raised with counsel the question whether, if Mr Vella’s decision was to be set aside, it would be appropriate to exercise the power under s 481(1)(b) to make an order referring the matter to which the decision relates to the person who made the decision for further consideration. Neither counsel invited me to do this. I expect that the consequence of the setting aside of Mr Vella’s decision will be that a delegate of the Minister will consider afresh whether to cancel Mr Sandoval’s visa. This will provide an opportunity for a fuller consideration of the facts including, perhaps, any evidence that Ms Fenner and her husband may provide. It will also provide an opportunity for the avoidance of the errors of law to which these reasons for judgment draw attention. In the circumstances, it appears to me to be unnecessary to make an order of the kind described in s 481(1)(b).
68 Costs should follow the event. It may be that Ms Fenner lacked standing to bring the proceeding. The point was never argued. In any event, no extra costs appear to have been incurred by reason of her participation in the proceeding, so it is appropriate to award both applicants their costs.
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I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. |
Associate:
Dated: 4 September 2001
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Counsel for the Applicant: |
Mr G Gilbert |
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Solicitor for the Applicant: |
Rigby Cooke |
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Counsel for the Respondent: |
Dr S Donoghue |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
24 August 2001 |
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Date of Judgment: |
4 September 2001 |
