FEDERAL COURT OF AUSTRALIA

Chhuon v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 565

MIGRATION – cancellation of visa – whether notice of cancellation given under s 128 given in prescribed way – whether notice of cancellation given but specified time for response not given – whether decision not to revoke cancellation of visa may be made despite failure to comply fully with s 128.

MIGRATION – decision not to revoke cancellation of visa under s 131 – whether decision made in good faith – whether decision involved jurisdictional error from error of law by decision-maker.

Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth) ss 5, 99, 101, 116, 128, 129, 131, 474

Cheaib v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 379; [1997] FCA 562 followed

Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167 cited

Noeung v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1304 followed

Jalal v Minister for Immigration & Multicultural Affairs (2000) 60 ALD 779; [2000] FCA 207 referred to

SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 [2002] FCAFC 361 followed

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied

Plaintiff S157 v Commonwealth of Australia [2003] 195 ALR 24; [2003] HCA 2 followed

Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 cited

BUNKHENG CHHUON v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 218 OF 2002

MANSFIELD J

6 JUNE 2003

ADELAIDE

THE COURT ORDERS THAT:

1.                  The decision of a delegate of the respondent made on 2 August 2002 not to revoke the cancellation of the visa of the applicant by decision made on 5 July 2002 be set aside.

2.                  The respondent reconsider pursuant to s 131 of the Migration Act 1958 (Cth) whether the cancellation of the visa of the applicant by decision made on 5 July 2002 should be revoked.

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

REASONS FOR JUDGMENT

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) to have declared invalid the exercise of powers by delegates of the respondent on 24 July 2002 (the first decision) and on 2 August 2002 (the second decision) by virtue of which the visa granted to the applicant on 29 April 2002 was revoked, and the revocation confirmed.  The visa which was revoked was a Partner (Resident) Subclass 801 (Spouse) visa (the visa).  It was granted to the applicant on 29 April 2002.

THE GRANT OF THE VISA

2                     It is necessary to refer in a little detail to the circumstances in which the visa was granted.  The applicant is a Cambodian citizen.  She was born in 1959.  She was married in 1980 in Cambodia to Chou Phanith (the former husband).  There were four children of the marriage:  Daline Chou born in 1981, David Chou born in 1982, Dalis Chou born in 1985 and Penha Phanith born in 1989.  Dalis was unfortunately drowned in an accident in Cambodia in 2000.  According to the documentary material, the applicant and the former husband were divorced on 26 March 1998.

3                     On 2 September 1997 the applicant arrived in Australia on a Visitor visa.  She was accompanied by two of her children, Daline and Penha.  Whilst in Australia, the applicant formed a relationship with Chhoeun Ney (Mr Ney).  He was born in 1941.  He is an Australian citizen, and has lived in Australia for many years.  They met at a function on 31 December 1997.  The applicant and Mr Ney were married on 17 July 1998.

4                     On 30 September 1998, the applicant applied for the visa.  She also applied for a Partner (Temporary) Subclass 820 (Spouse) visa.  It required, in the circumstances, that she be nominated by Mr Ney as the nominating spouse.

5                     Mr Ney and the applicant said they were in, and intended to maintain, a lasting marital relationship.  They said the marriage was not contrived to enable the applicant to remain in Australia.

6                     On 30 July 1998 the applicant applied to remain permanently in Australia.  She sought a permanent visa in the Spouse (AS801) Sub-class of the General (Residence) class.  Her application was on her own behalf and that of two children, Daline Chou, born on 18 April 1981 and Penha Phanith, born on 9 September 1989.  She and her two children were Cambodian citizens, who were lawfully in Australia at the time under visitor visas.  She last arrived in Australia on 2 September 1997.  At the time of her application she indicated that she had not been known under any other name, and that she had been married in July 1980 but had been divorced on 25 March 1998.  There were four children of that marriage.  The other two children David Chuo, born in 1982 and Dalis Chuo, born in September 1985 were both said to be living with her former husband in Cambodia at that time.

7                     Officers of the Australian Embassy Immigration Section in Cambodia made inquiries about the applicant’s past personal history.  The inquiries were conducted by an officer named Scott Wickham (Mr Wickham) and others.  They attended the area where the applicant had previously lived.  They identified a woman described as the ‘Section Chief’ who confirmed that the applicant had previously lived with the former husband for a long time before moving to Australia ‘a couple of years ago’.  She said that the applicant had ‘recently visited her husband earlier this year and had stayed with him for two months’, and that the applicant had previously ‘visited and stayed for a few months about two years ago’.  She was unaware of the divorce.  She said that the former husband had told her that he had lodged application forms with the Australian Embassy to migrate and join his wife in Australia during 2000, but had had problems and the application had either not been successful or not been pursued.  The Family Registration records to which the Section Chief referred, apparently updated in 2000 by the former husband, identified the applicant as his wife.  She confirmed however that there were only three persons living at the house, namely the former husband, his surviving son in Vietnam, David and a male boarder.  Those officers also visited the premises where the applicant had previously lived.  The boarder confirmed that there were only three persons living at the home.  The former husband attended after a time.  He confirmed that he had been divorced, and denied that the applicant had subsequently visited him since she had come to Australia.

8                     The officers concluded, on the basis of the Section Chief’s information, that a spousal relationship continued between the applicant and the former husband and ‘they have contrived a divorce in order for her to enter into a marriage and apply for residence on shore, with the view to later sponsoring him and the remaining child to Australia’.  They described in their report the former husband as being ill-prepared for their impromptu visit as his answers were less than convincing, and that the answers of his boarder were also unconvincing.  The report was signed by Mr Wickham.

9                     The delegate of the respondent considering the application for the visa noted further that on 12 September 2001, ‘anonymous information’ came to her attention that the applicant and Mr Ney were involved in arranging contrived marriages.  She later interviewed the applicant and Mr Ney separately about those matters.

10                  On 4 January 2002, Mr Ney informed the delegate of the respondent that he was no longer married to the applicant as they had separated, and he no longer supported her application to remain in Australia.

11                  That did not mean the end of the application, as the applicant asserted, and it is apparently accepted by the respondent, that she was exposed to domestic violence during the course of her marriage to Mr Ney.  The relevant criterion for the grant of the visa, on this topic, is that the applicant continues to be nominated for the grant of the visa by the nominating spouse at the time of the decision:  cl 801.221(2)(a) of Sch 2 to the Migration Regulations.  Satisfaction of that criterion is not required, inter alia, if the relationship with the nominating spouse has ceased and the applicant has suffered domestic violence committed by the nominating spouse:  cl 801.221(6)(b) and (c)(i)(A).  Division 1.5 of the Regulations deals with domestic violence.  The claim of domestic violence was duly investigated.  Ultimately, on 22 April 2002 it was recommended that the respondent accept the relationship between the applicant and Mr Ney had ceased and that she had suffered domestic violence committed by him.  The fact of the cessation of the relationship and his withdrawal of his status as nominating spouse therefore did not exclude the applicant from eligibility for the visa.  The delegate was satisfied that she met the other criteria for the visa, including the genuineness of the marital relationship between the applicant and Mr Ney until the relationship broke down.  In fact on 20 December 2001 the delegate had made the assessment that at the time of the application for the visa the applicant and Mr Ney were in a genuine and continuing marital relationship.  She took into account the field visit made by Mr Wickham, including its views as to the relationship between the applicant and the former husband.  She said:

“After discussions with the Manager, Assistant Director of B & M [Business & Migration], I found that the field team’s findings were not ‘fact’ and there was no evidence/proof that a divorce was actually contrived.  On balance, I was satisfied that the applicant and nominator were in a genuine relationship.  There was no adverse information on file (other than the field team’s finding) with respect to their relationship not being genuine.”

12                  Consequently on 29 April 2002, the visa was granted and the applicant was duly notified of that decision.

13                  On the same day the delegate who made that decision notified the Australian Embassy in Cambodia of the decision.  She also wrote to give some advice in case ‘of any future applications from these people’.  She referred to the fact that Mr Ney had withdrawn his support for the visa whilst he and the applicant were previously in Cambodia for a holiday and that Mr Ney had formed another relationship.  The delegate considered that information might be relevant in case any future nominations were lodged, including any application by the former husband to come to Australia.

the first decision

14                  In July 2002 or thereabouts the applicant, having been granted the visa, then visited Cambodia.  Whilst she was away, Mr Wickham, a delegate of the respondent, decided to cancel the visa under s 128 of the Migration Act 1958 (Cth) (the Act).  It permits the cancellation without notice of a visa of a non-citizen who is outside Australia, if there is a ground for cancelling the visa under s 116, and it is appropriate to cancel the visa under Subdiv F of the Act, which includes s 128.  The cancellation was effected on 5 July 2002.  It was ‘hand delivered’ the same day, although an issue as to the notification arises on the present application.

15                  The respondent considered it was appropriate to cancel the visa under s 128 whilst the applicant was outside Australia, albeit only temporarily.  The ground relied upon was that available under s 116(1)(d), which is in the following terms:

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

…

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

…’

16                  In Cheaib v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 379 [1997] FCA 562 the Full Court (Lockhart, O’Loughlin and Merkel JJ) concluded that, by reason of the statutory definition of ‘enter’ in s 5 to include ‘re-enter’, cancellation of a visa granted to a non-citizen could be effected while the non-citizen was temporarily out of Australia and so had not re-entered Australia after being outside Australia.  The applicant did not contend that I should do other than follow that decision.  Consequently, subject to considering the particular ground for cancelling the visa, I proceed upon the basis that the respondent had the power to cancel the visa under s 128 of the Act whilst the applicant was in Cambodia.

17                  The delegate of the respondent identified the incorrect information given by the applicant to be that given under ‘subsection [sic] 101’.  Section 101 provides:

 ‘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.’

The reasons for the decision were expressed in the following terms:

“Reasons:

·        The visa holder has made false and misleading statements, provided false information and incorrect answers in her application for a permanent spouse visa lodged 30 July 1998;

·        The visa holder knowingly entered into a contrived marriage with her nominator NEY Chhoeun for the purpose of obtaining an immigration advantage – a permanent visa by deceptive means;

·        Provided incorrect information by failing to disclose that her spouse relationship with CHOU Phanith (aka LY Sophanith) was still continuing and supported this deception by contriving a divorce;

·        Providing incorrect information by failing to disclose that her son CHOU David or Davit is also known as PHANITH David and her ex-husband as LY Sophanith;

·        Providing incorrect information by failing to disclose in her application that she was also known as SENG Chenda (1958);

Reliable community information has been received that the marriage between Ms CHHUON Bunkheng and Mr NEY Chhoeun has been contrived for migration purposes.  Ms Chhuon has now returned to Cambodia to sponsor her first spouse, CHOU Phanith to Australia.  This latest information is supported by earlier information provided by the Section Chief responsible for the section of Phnom Penh where Ms Chhuon’s home is located.  The Section Chief stated that Ms Chhuon and her husband, Mr CHOU Phanith were still married and Mr Chou was waiting for Ms Chhuon to sponsor him to Australia.  The information is also supported separate community information received in March 1999 in that LY Sophanith (aka CHOU Phanith) was intending to lodge an application for a visitor visa to join his wife (CHHUON Bunkheng) and 2 children living in Adelaide.  Their other son in the name of PHANITH David (aka CHOU David) who had already been refused a student visa.

Ms Chhuon’s son CHOU David has previously applied for student visas on 28/4/1998, 30/9/1998 and 16/6/1999 in the identity of PHANITH David.  He declared his parents as SENG Chenda and LY Sophanith and provided documentation to support these claims.  All three of these applications were refused.  A further application for a student visa was lodged 1/9/1999 in the identity of PHANITH David and this visa was granted on 22/12/1999 and subsequently cancelled.  Again in this application he declared his parents names as SENG Chenda and LY Sophanith.

On 22/12/1999 an application for a visitor visa was lodged by CHO Phanith in the identity of LY Sophanith.  In this application he declared that he was married to SENG Chenda (aka CHHUON Bunkheng the visa holder).

In the light of the above I can only conclude that incorrect and false information has been provided by the visa holder and that the spouse relationship between Ms CHHUON Bunkheng and Mr NEY Chhoeun has been contrived in order to obtain an immigration advantage.”

NOTIFICATION OF THE FIRST DECISION

18                  The letter accompanying that notice is recorded as having been hand delivered on 5 July 2002 at the address of the applicant’s former husband in Phnom Penh.  The evidence clearly is that it was not hand delivered to her.  It was given to her son Penha, then aged 12, who was having an access visit with his father.  A photograph of her son Penha does not provide any justification for the person serving the document to believe that he was then of the age of 16 years.  The notice came to the applicant’s attention three days later, when Penha returned to her.

19                  The applicant then attended the Australian Embassy in Phnom Penh and was given another copy of the notice.  It specified 2 August 2002 as the required date by which a response to the notice had to be given.  The date specified was calculated on the basis that notification of the first decision was in fact given.  The date specified was calculated on the basis that notification of the first decision was in fact given on 5 July 2002.

20                  Section 129 of the Act requires the giving of notice of cancellation of a visa under s 128, stating the ground on which it was cancelled and giving particulars of that ground, and details of the information upon which the ground was considered to exist.  It must invite the former visa holder to show, within a specified time (as prescribed) that the ground does not exist or that there is a reason why the visa should not have been cancelled.  The notice is required to be given in a prescribed way:  s 129(2).  Failure to give notice of the decision does not affect the validity of the decision:  s 129(3).  Section 130 provides for the making of regulations prescribing a period for the purpose of s 129(1)(c).  Regulation 2.46(a) of the Migration Regulations provides that, for the purposes of s 129(1)(c), if the formal visa holder is outside Australia and he or she is given a notice of cancellation, the prescribed period is 28 days.  Regulation 2.55 applies (inter alia) to the giving of a notice of cancellation of a visa under s 128 of the Act.  It requires such a notice to be given either personally, or by handing it to another person who is at the visa holder’s last residence or business address known to the respondent and who appears to live there (in the case of a residential address) and who appears to be at least 16 years of age.

21                  It is apparent that the notice was not served in accordance with Reg 2.55 because it was not served on a person who appeared to live at the address at which it was served and who appeared to be at least 16 years of age.  I also find that it was not served at the applicant’s last residential or business address known to the respondent.  The information available indicates that the respondent believed that the applicant was in Cambodia to sponsor her first spouse to Australia, so it was not her residential address or her business address.  On the evidence, at the time her son Penha was given the notice, he was asked whether he lived there, and he said he did not but was visiting his father.  He was obviously not apparently at least 16 years of age.

22                  The applicant also was not given the period of notification required by reg 2.46 within which she might respond, assuming it had been properly served when it came to her attention some three days later.  The notification period, on that assumption, expired on 5 August 2002.  When the applicant then attended the Australian Embassy some three or so days later, and was given a copy of the notification, it still specified the deadline for the purposes of s 129 of the Act as 2 August 2002.  The period specified did not satisfy reg 2.46(a).

23                  Such clear disregard of the requirements of s 129 and regs 2.55 and 2.46(a) in giving notice of the first decision is unexplained.

24                  The applicant made no complaint that, despite the manner of notification of the first decision and the time allowed for her to respond, that she was in a practical sense disadvantaged in her response or that, given more time, she might have responded with different or more information.  There was also no contention that the notification of the first decision did not state the ground on which the visa was cancelled, or give particulars of the ground and of the information upon which the ground was considered to exist:  cp Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167 at [31]-[33] (Wang) and Noeung v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1304 at [71]-[74] (Noeung).

the second decision

25                  In the restricted time available to her, the applicant arranged for a migration agent to make submissions to the respondent by 2 August 2002.  Those submissions were provided to the respondent at the Australian Embassy in Cambodia.  It included the following material:

“1.       We believe that the visa of Ms. Chhuon and her children should not have been cancelled.

2.                  We believe that there was a misunderstanding of the identity of Ms Chhuon.

3.                  Ms. Chhuon and Ms. SENG Chenda are two different persons.

4.                  Ms. SENG is the current wife of Mr. CHOU Phanith.

5.                  The information and statement given by Ms. Chhuon in her visa application were correct.

6.                  Ms. Chhuon and her ex-husband were legally divorced on 25.3.1998.  Ms. Chhuon has no contact with Mr. Chou Phanith in any meaningful way besides the sale of their joint-name property in Cambodia and her daughter’s marriage.

7.                  Ms. Chhuon only knew her ex-husband as CHOU Phanith.

8.                  Ms. Chhuon knew her son as CHOU David.  He might have change his name to Phanith David, as it is a Cambodian custom to use one father’s first name as one’s surname.  He father is CHOU Panith.

9.                  Ms. Chhuon returned to Cambodia with two of her children for two main reasons.  One, to sale the house that was in joint name with her ex-husband.  Two, her daughter is getting married in Cambodia.

10.              The sale of the house:  We wish to submit the following:

a.      Certificate of the Sale of the House dated 21.6.2002.

b.      Ownership transfer Certificate dated 21.6.2002.

c.       Money Dividing Agreement dated 27.6.2002.

11.              These above document were dated before the date of the visa cancellation, i.e. 5.7.2002.

12.              The daughter’s marriage:  We wish to submit the following:

a.      Statutory Declaration of her daughter, Daline Chou made on 25.6.2002 before Australia Consul Mr. Cig Mills at the Australian Embassy in Phnom Penh, Cambodia.

b.      Marriage Certificate of Daline Chou dated 18.7.2002.

c.       Wedding photos.

13.              Please note that the marriage did take place on 5.7.2002, the day that their visas were cancelled.  These documents proved that the reasons of the family returning to Cambodia were to sale the house and for the daughter’s marriage are genuine.

14.              If Ms. Chhuon attempts to resume her relationship with her ex-husband and plan to sponsor him to Australia, why they want to sale their house?  Knowing that spouse application in Cambodia will that at least one year, where would the husband live while waiting for the visa approval?

15.              We also wish to submit the Temporary Resident registration of Ms. Chhuon and her two children when visit Cambodia.  They are now living with Ms. Chhuon’s brother CHHUON Kim Heang.  The registration is dated 14.6.2002 the date that they arrived in Cambodia.  If she wishes to go back to her ex-husband, why she wants to stay with her brother?

16.              Mr. Chou Phanith understood the dilemma facing the two children and wishes to explain the situation.  He first stayed with SENG Chenda in 1985 before his separation with Ms. Chhuon in 1998.  He stayed with Seng in another house.  He also registered his son David in the Family Book because he is his favoured child.  When he divorced, he asked for the custody of David, which he got.

17.              Please note that the family book is in the name of Ly Sophanith.  Ly Sophanith is the name Mr. Chou Phanith used in his business.  He used the name Mr. Chou Phanith for the job as a public servant i.e. a high school teacher.  It is a common practice in Cambodia for a person to have two names for income purpose.

18.              Please note that Mr. Chou Phanith used the name, Ly Sophanith many years before he officially divorced Ms. Chhuon Bunkheng.

19.              We also wish to provide documents to prove that CHOU Phanith and SENG Chenda were husband and wife for many years before he officially divorced Ms. Chhuon Bunkheng.

a.      Family book

b.      Photo of the family

20.              Ms. Chhuon did not know anything about Chou Phanith’s application to Australia on March 1999 at that time.  She only knew when she received the notice of cancellation.

21.              Ms. Chhuon did not know anything at the time about Phanith David applications to Australia as a student.  He might have declared his mother is Seng Chenda (step mother).”

26                  It also addressed the appropriateness of the cancellation of the visa whilst the applicant was in Cambodia, a matter required by the delegate to be addressed by reason of s 128(a)(ii).

27                  Another officer of the respondent in Phnom Penh reviewed the decision to cancel the visa in accordance with s 131 of the Act.  On 2 August 2002, notice of that reconsideration was given.  It contains such information as to the processes of reasoning of that delegate as are available.  They are scanty and unsatisfactory.  After noting the applicant through her migration agent had responded on 25 July 2002 to the notification of the first decision, the delegate said:

“After considering your response in full, the Department has decided not to revoke the cancellation of your visa under section 131 because I am not satisfied that you have been honest in your dealings with this office and/or the Department of Immigration & Multicultural & Indigenous Affairs and I find that you have provided false and incorrect information in your application for a spouse visa by failing to disclose your sponsor’s correct marital status and previous marriages or defacto relationships.

I have considered the information submitted by your migration agent and have taken them into account in weighing up this decision.  I have also taken into account that not revoking the cancellation of your visa may cause some stress and hardship to you and your family.  However, I find the veracity of the statements and documentation you have submitted to be dubious and the content to be inconsistent and unreliable.  Therefore, I find that you have clearly provided incorrect information in your application and this outweighs any arguments you have put forward.  In taking into account all the available information I am not satisfied that you, the visa holder has provided correct information in your application and as a result, I do not revoke the cancellation of your visa.”

the grounds of review

28                  The grounds of review, as amended by leave, in relation to the first decision were that the decision-maker took irrelevant considerations into account, failed to take a relevant consideration into account, and that he did not exercise the power of cancellation in good faith.

29                  It was next argued that the notification of the first decision was invalid because it did not comply with s 129 of the Act and of the Regulations, so that there has in fact been no re-consideration of the decision and the applicant is still entitled to be notified of the decision in the correct way and to respond to it.

30                  The attack upon the second decision, assuming it could have been made notwithstanding the clear failure to comply with s 129 and regs 2.55 and 2.46(a), is that the making of the decision was an improper exercise of power because it took into account the irrelevant considerations and failed to take into account relevant considerations, that the second delegate misconceived his function by making his decision as that of ‘the department’ rather than as a delegate of the Minister, and thirdly that the exercise of his power was not bona fide.

consideration of contentions

(a)        The First Decision

31                  The first decision was based upon s 116(1)(d) of the Act, and in turn upon s 101.  That is, the first decision was made because the visa was liable to be cancelled because the applicant, in her application form for the visa, had given an incorrect answer or answers.  The particulars of the ground given under the heading ‘Reasons’ in that decision and set out in [17] above must be read in that light.

32                  I have difficulty in understanding the use of the expression ‘false and misleading statements’ in the first dot point of those reasons, as in the context of s 101, the expression adds nothing to the expression ‘incorrect answers’.  I take it to be an introductory statement to the points.  They were that the applicant had not stated in her visa application:

(1)          her marriage to Mr Ney was ‘contrived’ to obtain the visa;

(2)          her spousal relationship to the former husband continued;

(3)          her son, Chou David or Davit is also known as Phanith David;

(4)          her former husband is also known as Ly Sophanith; and

(5)          she is also known as Seng Chenda.

33                  The nature of the decision then set out particulars of the information because of which the grounds were considered to exist.  The information about the contrived marriage and the continuance of the spousal relationship was:

(i)                  ‘Reliable community information’ that the spousal relationship between the applicant and Mr Ney was contrived for migration purposes;

(ii)                The applicant had returned to Cambodia to sponsor the former husband to Australia;

(iii)               ‘Earlier information’ from the Section Chief (referred to in [      ] above and procured in September 2001) that:

(a)                the applicant and the former husband ‘were still married’; and

(b)               the former husband was waiting for the applicant to sponsor him to Australia;

(iv)       ‘Separate community information’ received in March 1999 that the former husband intended to lodge an application for ‘a visitor visa to join’ the applicant in Adelaide.

The information about the other names used by the applicant and members of her family referred to in (3)-(5) of [32] above was:

(v)               The applicant’s son Chou David in the name Phanith David had applied for a student visa on 24 April 1998, 30 September 1998 and 16 June 1999 and been refused, and on 1 September 1999 when the visa had been granted but then cancelled, and in each instance had declared his parents to be Ly Sopanith and Seng Chenda.

(vi)       The former husband on 22 December 1999 had applied for a visitor visa under the name Ly Sopanith, stating he was married to Seng Chenda ‘aka Chhuon Bunkheng’.

34                  The latter two pieces of information appear also to have been part of Mr Wickham’s reasons for concluding that incorrect information was provided by the applicant in her application for the visa because the spousal relationship between the applicant and Mr Ney was contrived to obtain an immigration advantage.

35                  My analysis of the reasons for the first decision as notified to the applicant follows the elements of s 129, as discussed by Allsop J in Noeung at [72] – [73]. 

36                  As to the material available to Mr Wickham:

(i)         It did not indicate that the marriage between the applicant and Mr Ney was contrived for migration purposes, but that the applicant and Mr Ney were together engaged in arranging contrived marriages for others, except if the ‘reliable community information’ is that provided by the Section Chief.  She did not say the applicant and the former husband were still married, although she had not heard of the divorce.

(ii)        The respondent did not identify any particular information which indicated that the applicant’s return to Cambodia on the occasion the first decision was made was to sponsor the former husband to Australia, and no such application was in fact made.

(iii)       The Section Chief did not describe the applicant and the former husband as still married, although she was unaware of the divorce on 26 March 1998.  She did say that the former husband had taken some steps in 2000 to migrate to Australia to join the applicant although any application had not resulted in the grant of a visa.  The material available to the respondent as contained in the application book does not indicate any such application was made.  She also said that the applicant had stayed with the former husband for a few months during visits in 2001 and about 1999, and further that the Family Registration records updated in 2000 still identified the applicant as the wife of the former husband.  The direct information from the former husband (as well as the applicant, and the official records) that he and the applicant were divorced was not referred to.  Nor is the information from the former husband that the applicant had not subsequently stayed with him.

(iv)       No information of March 1999 was identified.

(v)        Applications for a student visa were made by David Phanith on 28 April 1998, 30 September 1998 and 16 August 1999 in which he described his parents as Ly Sophanith and Seng Chenda.  At least one of those applications was accompanied by a birth certificate and a household registration document showing persons of those names as his parents and identifying Seng Chenda as born in 1958.  There is no evidence that any such visa was in fact applied for.

(vi)       The former husband intended to lodge an application for ‘a visitor visa to join’ the applicant in Adelaide.  There is no evidence that any such application for a visa was in fact made.

37                  So far as was identified in submissions, Mr Wickham had no information available to him which was not available to the delegate who made the decision to grant the visa.  In Jalal v Minister for Immigration & Multicultural Affairs (2000) 60 ALD 779; [2000] FCA 207 (Jalal), Finkelstein J addressed whether the power to cancel a visa under Subdiv C for failing to comply with s 101 is only available if the visa is granted on the faith of an incorrect answer.  His Honour concluded that the power to cancel a visa for non-compliance with a provision relating to an application form is confined to non-compliance that was not known to the decision-maker when the visa was granted:  see [30]-[35].  It was not argued in this matter that the decision in Jalal applied to the present circumstances.  There may be a difference between cases where, in the application, a visa applicant states fact X and the visa is granted with the decision-maker knowing fact X is not correct but fact Y is the correct fact (as was the case in Jalal), and where the correctness of fact X is accepted by one decision-maker but not by another where its correctness is a matter of judgment from a series of other pieces of information.  The decision may not apply where the cancellation is under Subdiv F (as here), although at present I see no reason why that should not be so.  However, in the circumstances, I do not take that issue further.

38                  In SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361, the Full Court (Tamberlin, Mansfield and Jacobsen JJ) set out a number of propositions relevant to whether the decision of an administrative decision-maker reflects a bona fide attempt to exercise the power of review.  At [43]-[48], their Honours said:

‘First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial; see SBAU at [27] citing SBAP v Refugee Review Tribunal [2002] FCA 590 per Heerey J at [49] and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 805 per Hely J at [25].

The fifth proposition is that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review; SBAU at [28] citing SAAG v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 547 per Mansfield J at [35] and SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.

Sixth, mere error or irrationality does not of itself demonstrate lack of good faith; SBAU at [29]. Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism; see NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] per Allsop J quoted with approval in NAAV at [107] by Black CJ.

Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness; SBAU at [31].

Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task; SBAU at [32].’

39                  Despite the forceful contentions of counsel for the applicant, I am not persuaded that Mr Wickham did not approach the task of determining whether to cancel the visa in good faith.  It is true that the decision was taken opportunistically, that is, but for the applicant’s temporary return to Cambodia, the circumstance which might have led the respondent, through Mr Wickham, to be able to address the issue would not have arisen.  It may also be perceived that the decision reflects a firm opinion on the part of Mr Wickham about the reliability of the information he gathered about the applicant in September 2001, and that he entertained a strong view that the visa ought not to have been granted because of that information.  In short, he clearly disagreed with the decision to grant the visa.  There is much to criticise about his reasons for the first decision.  The criticisms are set out in [36].  I do not think those criticisms, in all the circumstances, push the first decision into the territory where it is shown to have been made other than in good faith.  The information (if not enlightened by what the applicant put in response to her s 129 notice) could support the views taken about other names used by the applicant and other members of her family.  The information provided by the Section Chief could rationally support the view which Mr Wickham took about it.  The reasons may have overstated the nature or source of certain information, but that is consistent with an attempt to make the decision in good faith and with a strongly held view about the reliability of views formed following the inquiries made in September 2001.

40                  The other ground of review of the first decision was that there was no misstatement in the application (having regard to s 99 of the Act) as found by Mr Wickham.

41                  The first general inaccuracy in the application is said to be about the applicant’s relationships with Mr Ney and with the former husband.  That is clearly a matter upon which the applicant gave information in her application for the visa.  As Mr Wickham reached the finding, on the material available to him, that the applicant had an ongoing relationship with the former husband and that her relationship with Mr Ney was contrived, it followed that the applicant had provided incorrect information on the topic in her application.

42                  The second general inaccuracy found by Mr Wickham concerned the failures to disclose other names used by the former husband, her son David, and herself.  The applicant accepts the former husband and her son used the names Ly Sopanith and Phanith David respectively, but says Seng Chenda is a different person.  It is no doubt because such issues may arise that s 128 requires the respondent to consider whether it is appropriate to cancel the visa under Subdiv F rather than under Subdiv C.  Had the alternative course been adopted, the applicant would have been informed of those concerns and given an opportunity to address them.  As it was, her opportunity only arose after the visa was cancelled.  I have doubts whether this category of inaccuracies did amount to a failure to comply with s 101.  All questions in the application were answered.  The answers on these matters were correct.  But s 101 requires the answers to be given ‘in such a way that … no incorrect answers are given’.  There is an obligation upon the visa applicant not to mislead.  Sometimes literally correct answers may be misleading by what they omit.

43                  As I understand the material now available, the applicant says she knew the former husband used the professional name Ly Sopanith, but the practice in Cambodia of using different professional names was commonplace, so her failure to mention that fact was of no significance.  She says her son’s use of another name was not known to her.  If those matters are correct, then I think she did not contravene s 101 in those respects.  Clearly, if Seng Chenda was not a name used by her, but was a different person, her answer in that respect was not incorrect.  Those considerations were not addressed by Mr Wickham, and the election to proceed to cancel the visa under Subdiv F precluded him from the opportunity to consider them.  But, Mr Wickham took the view that those ‘inaccuracies’ were significant because they were part of the overall picture of a sinister attempt to secure, by contrivance, permanent residence in Australia for the applicant and her family, including the former husband.  In that context, the ‘inaccuracies’ may have been information which the applicant should have disclosed.  Her failure to mention those matters (assuming them to be correct) led to her completing the application form in such a way that literally correct answers were not entirely correct, but only if Mr Wickham’s supposition was correct.

44                  The applicant’s response to the s 129 notice indicates that there appears to be cogent material that in significant respects the ‘inaccuracies’ did not have a misleading character at all.  The option to proceed under s 128, rather than under Subdiv C, in cancelling the visa demonstrates the need for the delegate making the second decision to exercise that power in good faith.  It is really the only occasion when the applicant had the chance of addressing the issues raised by Mr Wickham.

45                  However, in my view, upon the overall view of the matter which Mr Wickham took, his opinion about this category of inaccuracies was one available to him.  Even if it later was shown that his understanding of certain ‘facts’ was either incorrect (e.g. that the applicant did not use the name Seng Chenda) or involved an assumption which was unwarranted (e.g. that the applicant did not know of her son’s use of a different name), such errors would not in my judgment reflect any jurisdictional error on his part.  Consequently, I think the attack upon the first decision must fail.

 (b)       The Notification

46                  Any failure to give notification of the first decision does not affect its validity:  s 129(3).

47                  The first decision was not notified on 5 July 2002, despite the respondent’s officer asserting that it had been hand delivered on that day.  When the document came to the attention of the applicant on 8 July 2002, she then went to the Australian Embassy in Phnom Penh and was given notification of the first decision.  The notification then given should have given the applicant twenty-eight days to respond to the notice, that is at least a further three days to 5 August 2002. 

48                  In this matter, I do not need to determine whether the failure to provide to the applicant the period required by s 129(1)(c) and reg 2.45(a) to respond to the notification of the first decision results in the notification in effect not being given.  That is because I propose to set aside the second decision in any event.  It was the adequacy of the content of the notice under s 129 which required consideration in Wang.  See also the consideration of the issue by Allsop J in Noueng in [59]-[72].  There is no such complaint here.  The complaint is as to the period of time allowed to respond to the notice, once it was hand delivered to the applicant when she attended the Australian Embassy in Phnom Phen.  In this matter, that failure on the part of the respondent through his officers has not resulted in any detriment to the applicant.  The applicant was able to respond by 2 August 2002 in any event.  She has not contended that the restricted time she had available to do so resulted in her response to the invitation being inadequate or incomplete.  She has not contended that, if the full twenty-eight day period prescribed had been available, her response to the invitation would have been any different.  As the power to grant relief is discretionary, I would not in the circumstances make an order setting aside the second division because it was infected by the failure to give the applicant the specified period within which to respond to the notice of the first decision.  I do not think the course of events would have been any different had the applicant been given the required period to do so.

(c)        The Second Decision

49                  In my view, the second decision goes beyond that authorised by the Act.  The first decision was made upon the ground of there being incorrect answers in the application for the visa.  The response under s 129(1)(c) was limited to the applicant showing that the ground does not exist, or that there is a reason why the visa should not have been cancelled.

50                  The response of the applicant to the first decision is largely set out in [25] above.  Significantly, apart from denying any ongoing spousal relationship between herself and the former husband, it claimed:

(1)        The applicant and Seng Chenda are different persons, and that Seng Chenda is the current wife of the former husband. 

(2)        The applicant’s visit to Cambodia was to attend her daughter’s wedding and to sell and settle the house jointly owned by herself and the former husband;  documentary evidence confirming both of those matters was produced.

(3)        The temporary residence registration of the applicant whilst in Cambodia was with her brother.

(4)        The former husband had a relationship with Seng Chenda from 1985, and lived with her as husband and wife for many years before he officially divorced the applicant in 1998; a ‘family book’ and a photograph were produced to confirm that.

(5)        The former husband used the name Chou Phanith in his public service job and the name Ly Sophanith in his private business.

(6)        She was unaware of the visa applications of Chou Phanith or her son Phanith David, but apparently he put his stepmother’s name on the application.

51                  Section 131(1) provides:

‘Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister:

(a)               if not satisfied that there was a ground for the cancellation; or

(b)               if satisfied that there is another reason why the cancellation should be revoked;

is to revoke the cancellation.’

52                  It is not necessary to refer to s 131(2).  Consequently the second decision required the delegate of the respondent to address whether there was a ground for the cancellation of the visa, and whether there is another reason why the cancellation should be revoked. 

53                  The second decision was accompanied by brief reasons.  I do not need to determine whether the delegate of the respondent who made the second decision was obliged by s 131 or by some other provision to give reasons for the second decision.  The fact is that reasons for the second decision were given, so I can discern from them the basis upon which the second decision was made.  Of course, I approach the reasons with the understanding discussed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

54                  In my judgment, however, the second decision should be set aside.  By reference to the foundation for the first decision, the material then available to the decision maker, the material presented by the applicant in her response to the notice under s 129 and the reasons for the second decision, I have reached the firm view that the second decision did not reflect an attempt in good faith to perform the review function prescribed by s 131 of the Act.  Section 131(1)(a) appears to place at least an evidentiary onus on the applicant to adduce material upon which the respondent through his delegate might not be satisfied that there was a ground for the cancellation of the visa.  The focus is clearly upon the ground upon which the initial cancellation decision under s 128 was made.  It requires the revisiting of that ground afresh and with specific regard to my response.  Section 131(1)(b) requires the delegate to then address whether there is another reason why the cancellation should be revoked.  That may refer to that element of the initial decision required by s 128(a)(ii), namely that it is appropriate to cancel the visa under s 128 whilst the visa holder is out of Australia, rather than under the procedures prescribed by Subdiv E.  Those procedures provide more substantial procedural fairness entitlements to the visa holder before cancellation of the visa.  As the power to cancel a visa under s 128 is discretionary, the decision to revoke the cancellation may also have regard to other discretionary considerations, as contemplated by s 131(1)(b).  In my judgment, the second decision reflects a ‘rubber stamping’ of the first decision without the consideration which s 131 requires.  It is not for me to speculate why an officer of the respondent failed to perform the function required, but I think the failure is clear.

55                  The reasons for the second decision are contained in the two paragraphs set out in [27] above.  The first paragraph seems to address the ground upon which the first decision was made, as required by s 131(1)(a).  The only specified basis for the general conclusions about dishonesty is the failure ‘to disclose your sponsor’s correct marital status and previous marriages or defacto relationships’.  There is no requirement that the applicant disclose in the visa application any previous marriage or marriages of Mr Ney.  There is nothing to indicate he had prior defacto relationships, or that the visa application was required to disclose them.  The use of the plurals in relation to previous marriages and defacto relationships is obscure.  His correct marital status is disclosed.  Moreover, such detail about Mr Ney’s marital status or previous relationships was not a basis for any part of the first decision.  If I take the reference to the applicant’s sponsor as a slip, intended to be a reference to the former spouse, the reasons are equally problematic. The only material indicating a defacto relationship concerned the former husband and Seng Chenda.  If the reasons are to be taken as referring to the former husband’s “correct marital status and previous marriages or defacto relationships”, there is first no material to identify any prior marriage of the former husband, and secondly no basis for asserting the visa application required the disclosure of earlier marriages of the former husband or his defacto relationships.

56                  The second paragraph may reflect the consideration under s 131(1)(b).  That would explain the reference to stress and hardship, as does the use of the word ‘outweighs’.  The countervailing factor is said to be the ‘dubious’ and ‘inconsistent’ and ‘unreliable’ information provided in response to the s 129 notice.  Such a description of the material so submitted is unfounded.  There is nothing to support the view that the contents of the “statements and documentation” submitted under s 129 were inconsistent.  There is no indication of any basis for thinking the documentation was unreliable.  Indeed, if the reference to ‘defacto relationships’ in the previous paragraph of the reasons for the second decision is a reference to the former husband’s relationship with Seng Chenda from about 1985 (as it must be as that is the only defacto relationship to which, on the available material, it could refer), it is implicit that the maker of the second decision accepted that the applicant and Seng Chenda are different people.  If that be so, then the significance of the information in pars (v) and (vi) in [36] upon which the grounds of the first decision were based is largely incorrect.  But the maker of the second decision has not addressed the issue.  If the maker of the second decision did not take that step, then there is a failure to address what is obviously a very significant issue as to whether the applicant and Seng Chenda are different persons.  The material submitted under s 129 clearly raised this issue.  If the reference to statements and documentation is to that submitted with the visa application, or to that submitted with the visa application and that submitted in response to the notice under s 129 of the Act, there is still nothing upon which the delegate making the second decision could describe the material as inconsistent.  It was non-disclosure upon which the delegate making the first decision based the decision.  The apparently liberal use of pejorative language, and the absence of any real foundation for the description of the material before the delegate in the respects I have mentioned indicates that the delegate did not in good faith attempt to exercise the function required by s 131.

57                  In my view, the conclusion is fortified by the absence of any apparent appreciation of the significance of the material submitted by the applicant through her migration agent.  The claim that the applicant and Seng Chenda are different people is not addressed (although, as I noted in the previous paragraph, certain observations of the delegate must imply that the claim was accepted).  The documents produced to confirm that are not specifically referred to.  The claim that the applicant’s purpose in visiting Cambodia was not for the purpose found by Mr Wickham, supported by independent documentary evidence, was not addressed in any cogent way.  Nor was any finding made, nor the claim recognised, that the applicant was registered as temporarily residing with her brother whilst she was in Cambodia. 

58                  The information in the application book includes certain applications for a Student (Temporary) visa by David Phanith.  He described his parents as Ly Sophanith and Seng Chenda.  He provided a birth certificate, apparently dated 6 May 1998, giving the same names for his parents.  The date of birth of Seng Chenda is given as 1958.  A household registration document contains details that the household comprised Ly Sophanith and Seng Chenda, wife born in 1958.  His passport contains details of his closest living relative being his father, Ly Sophanith.  The applications, or one or more of them, refer to Ly Sophanith and Seng Chenda as living together in Cambodia.  Of course, at the times those applications were made the applicant was living in Australia.  There is no apparent attempt by the delegate who made the second decision to address the applicant’s claim that David used his Cambodian stepmother’s name on those applications.

59                  I have referred to certain decisions of the Full Court discussing ‘bad faith’ earlier in these reasons.  In applying those propositions, in this matter I have come to the firm conclusion that the delegate of the respondent who made the second decision did not undertake the task required in good faith.  Either he did not really address the material he was required to address or, if he did so, he addressed that material capriciously and recklessly.

60                  Accordingly, s 474 of the Act does not immunise the second decision from judicial review:  Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24; [2003] HCA 2.  I propose to set it aside.  I will direct the respondent to reconsider the decision required by s 131 as to whether the cancellation of the visa by the first decision should be revoked.

61                  I add that, even if it had concluded that the second decision was made other than in good faith, for the reasons I have given I would conclude that the second decision involved jurisdictional error on the part of the delegate of the respondent.  It is now clear that s 474 does not extend the jurisdiction of decision-makers to entitle them to fail to consider in any meaningful way the factual material which the Act requires them to consider.  I think that is what the delegate of the respondent did here.  Both the reasons given for the second decision, and the failure to address the material submitted by the applicant in response to the notice under s 129 except by a generic and fleeting reference, indicate the delegate did not really address what was required.  Of course, it is not necessary for an administrative decision-maker to address in detail each piece of evidence relating to the issues, or in each case to identify each and every factual issue which the material throws up.  I do not intend to so rule.  But in the peculiar and particular consequences of this case, the brief and fleeting reference to the applicant’s response to the s 129 notice indicates in my view that the factual issues which it raised (those confronting the applicant following the first decision) were not identified and considered by the delegate of the respondent.  In a real sense, the elements or integers of the claims of the applicant were not dealt with:  Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 at [79].

orders

62                  I therefore order that the second decision is set aside.  I direct the respondent to reconsider under s 131 the question whether the cancellation of the applicant’s visa should be revoked.

Associate:

Dated:                          6 June 2003