FEDERAL COURT OF AUSTRALIA

Saleem v Migration Review Tribunal [2004] FCA 234

MUHAMMAD SALEEM v MIGRATION REVIEW TRIBUNAL AND ANOR

N 1718 of 2003

ALLSOP J

30 MARCH 2004

SYDNEY

THE COURT ORDERS THAT:

1.         On or before 6 April 2004, the applicant file and serve draft short minutes of order conformable with the reasons published today.

2.                  Stand the matter over to a date to be fixed for the making of orders and for any argument in relation thereto.

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

REASONS FOR JUDGMENT

1                     The applicant seeks judicial review under s 39B of the Judiciary Act 1903 (Cth) of two decisions:  first, the decision of the Migration Review Tribunal (the Tribunal) made on 8 October 2003 in which the Tribunal affirmed a decision made by a delegate of the respondent Minister on 27 November 2002 to cancel the applicant’s permanent visa; and secondly, the underlying decision of the delegate.

2                     The applicant was granted a spouse visa on 10 July 2002.  On 27 November 2002, the visa was cancelled under s 109 of the Migration Act 1958 (Cth) (the Act) by the delegate by reason of a claimed failure to provide correct answers to the Department contrary to s 101 of the Act as expanded s 99 of the Act.  The substance of the alleged non-compliance was that the applicant had given false information about living as man and wife with his spouse.  Both of the decisions of the Tribunal and the delegate are attacked because if it be the case that the Tribunal decision should be set aside and remitted to the Tribunal to be heard according to law that leaves outstanding and apparently operative the decision of the delegate cancelling the visa.  The applicant is currently in Pakistan and is unable, without a visa, to travel to Australia.  He also had a business in Australia.  If the delegate, as well as the Tribunal, has exhibited such error as would entitle the applicant to declarations and orders quashing the decision, the position would be, it is said, that the status of the applicant would be governed by the former permanent visa that he had. 

3                     I heard the matter on Wednesday 10 March 2004.  I indicated to the parties, having set the matter down only for a half day, that I would deal with the attack on the Tribunal’s decision and if necessary deal with the delegate’s decision on another day.

the uncontested background facts

4                     On 29 May 2000, the applicant and Shabreen Nisha Ali married.  Ms Ali was a New Zealand citizen and Australian permanent resident.  The applicant is, and was, a citizen of Pakistan, having been born in Faisalabad on 8 February 1975.  Ms Ali was born in Suva, Fiji on 16 January 1981.

5                     On 31 May 2000, the applicant applied for a spouse visa on the basis of his marriage to Ms Ali.  In the application, the applicant told the Department that he married on 29 May 2000 and that he resided with Ms Ali, as husband and wife, at 1/66 Chapel Street, Belmore, New South Wales.  Thereafter, on a number of occasions until, and indeed after, the grant of the permanent spouse visa on 10 July 2002, the applicant told the Department that he lived with his wife, Ms Ali, as husband and wife.  After receipt by the Department of information sent to it contradicting that fact, the Department investigated the applicant’s position.  By November 2002 it would appear that the marriage between the applicant and Ms Ali had broken down.  Ms Ali (who had in the past supplied information conformable with that which the applicant supplied as to their relationship) provided information to the Department to the effect that she and the applicant had never lived together as man and wife.

6                     On 4 November 2002, the applicant was sent a notice of intention to cancel his visa.  On 29 November 2002, after the applicant responded to this notice, the applicant’s visa was cancelled by the delegate.

7                     It will be necessary in due course to examine the findings made by the Tribunal.  Before that, however, it is necessary to understand the statutory scheme within which the Tribunal (and the delegate) was working.  The arguments of the applicant before me, in significant respects, depend upon a particular (and strict) construction of the relevant provisions.

the statutory context

8                     Section 101 of the Act requires that visa applications be correct.  The section is in the following terms:

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.

9                     Section 100 of the Act makes clear that 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.  Further, the notion of what is the “application form” for s 101 is widened by s 99 to incorporate all information given in relation to the application for a visa including information to the Department, the Minister or a Tribunal reviewing a decision under the Act.  Section 99 is in the following terms:

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.

10                  Section 104 of the Act deals with changes in circumstances.  It provides that if circumstances change such that an answer on an application form (widened by s 99) was correct, but is now incorrect in the new circumstances, the applicant must, as soon as practicable, inform the Department of the new circumstances and the correct answer.  Section 104 is in the following terms:

(1)      If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

(2)  If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

(3) If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

(4) Subsection (1) applies despite the grant of any visa.

11                  Section 105 of the Act deals with the applicant becoming aware that an answer given previously was incorrect.  Section 105 is in the following terms:

(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 in writing of the incorrectness and of the correct answer.

(2) Subsection (1) applies despite the grant of any visa.

12                  Section 107 deals with the giving of a notice to the holder of a visa about possible non-compliance with, amongst other sections, ss 101, 104, 105 and 107.  Section 107, relevantly, is in the following terms:

(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-paragraph (A), there was non-compliance—shows cause why the visa should not be cancelled; or

(ii)   if the holder accepts that there was non-compliance:

(A)     give reasons for the non-compliance; and

(B)     shows cause why the visa should not be cancelled; and

(c)   stating that the Minister will consider cancelling the visa:

(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii) if the holder gives the Minister a written response within that period—when the response is given; or

(iii)    otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and

(e)      informing the holder that the holder's obligations under section 104 or 105 are not affected by the notice under this section; and

(f)       requiring the holder:

(i)    to tell the Minister the address at which the holder is living; and

(ii)   if the holder changes that address before the Minister notifies the holder of the Minister's decision on whether there was non-compliance by the holder—to tell the Minister the changed address.

…

(2)   If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

13                  Section 108 then provides for the Minister to consider the response given by the visa holder and to decide whether there was non-compliance.  Section 108 is in the following terms:

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.

14                  If the Minister decides that there has been non-compliance by the visa holder, s 109 of the Act authorises the Minister to cancel the visa.  Section 109 is in the following terms:

(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.

15                  The prescribed circumstances referred to in s 109(1)(c) are set out in regulation 2.41, where the following ten circumstances are prescribed for the purposes of s 109(1)(c):

(a)      the correct information;

(b)      the content of the genuine document (if any);

(c)      the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;

(d)      the circumstances in which the non-compliance occurred;

(e)      the present circumstances of the visa holder;

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

(g)      any other instances of non-compliance by the visa holder known to the Minister;

(h)      the time that has elapsed since the non-compliance;

(i)        any breaches of the law since the non-compliance and the seriousness of those breaches;

(j)       any contribution made by the holder to the community.

16                  It was common ground that the Minister was entitled to exercise these powers by a delegate, as was done in this case.

the construction issue

17                  The relevant debate concerning statutory construction arises from the terms of s 107(1)(a), s 108(b) and s 109.  Mr Godwin, who appeared for the applicant, emphasised that s 107(1)(a) speaks of a notice particulars of the possible non-compliance.  Section 108(b) requires the Minister to decide whether there was non-compliance in the way described in the notice.  Thus, it is said by Mr Godwin that the notice and the particulars of the possible non-compliance form the boundary of the jurisdictional fact for the exercise of the power under s 109, the jurisdictional fact being the decision of the Minister as to non-compliance, not the fact of non-compliance.  It is undoubted that the jurisdictional fact is the decision of the Minister or the delegate as to non-compliance, not the fact of non-compliance:  SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 303.  The same applies to the Tribunal:  ss 348 and 349 of the Act.

18                  The relationship between ss 107, 108 and 109 and the role and function of the Tribunal was also put in issue by Mr Reilly, who appeared for the respondent.  His argument is best identified after the applicant’s central argument is further exposed.

19                  It was further submitted by Mr Godwin that the decision must be one limited by the terms of s 107(1)(a) and s 108(b).  Thus, it was submitted by Mr Godwin that if the provision of incorrect information “X” is identified in the notice that fact and its correctness or incorrectness is the limit of the Minister’s decision under s 108(b).  If further non-compliance is discovered after the issue of a notice a further notice, under s 107 needs to be given in order that a decision covering that further non-compliance may be made under s 108(b), so as to enliven the power under s 109.

20                  This may not be particularly inconvenient for a delegate, who can simply give another s 107 notice before making a decision under s 109; but for the Tribunal hearing a review any fresh apparent non-compliance is not, it is said, a proper matter for decision under s 108(b), though Mr Godwin accepted that such matters may, in any given circumstances, be relevant to the exercise of discretion under s 109.

21                  Mr Reilly, who appeared for the second respondent Minister, contested this strict construction.  He submitted that the precondition of a decision of non-compliance for the exercise of the power under s 109 was satisfied by a decision about non-compliance and that the requirements of s 107(1)(a) and s 108(b) were satisfied by a clear identification of the section said not to have been complied with, here s 101.  Also, Mr Reilly submitted that the relevant jurisdictional fact to enliven the Tribunal’s jurisdiction “is the decision of the delegate pursuant to s 109 to cancel the visa.”  He sought to rely on SHJB.  That case does not support that proposition.  The Full Court there made clear that the “jurisdictional fact” for the exercise of the power under s 109 is not the fact of a breach of s 101, but the decision as to that.  So much, if I may say so, is clear.  It will avail an applicant nothing to prove to the Court on review that the questions in the application form were answered correctly.  The applicant must show that the decision of the Minister (if the Minister made the decision) or the delegate (if a delegate made the decision) can be challenged in a relevant manner such as that discussed in Minister for Immigration and Multicultural Affairs v Eshutu (1999) 197 CLR 611, 642 ff or R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, 434-35, 440.

22                  When the Tribunal comes to the review of the decision to cancel the visa it too must decide whether there has been non-compliance for the purposes of s 108(b).  I reject the proposition that it is limited in its function to the exercise of the discretionary power in s 109.  That would be an approach contrary to the notion of a full merits review provided for by the Act.  Nothing in SHJB demands to the contrary.

23                  The Tribunal here embarked on the task of deciding, for the purpose of the review of the decision under s 109, whether there had been non-compliance.  It was correct so to embark on that enquiry. The issue is whether it identified its task with sufficient precision.

24                  The statements of the positions of the parties are made clearer by an examination of the notice given under s 107 and the competing contentions of the parties.

the notice given

25                  On 4 November 2002 an officer of the Department sent to the applicant a document entitled:  “Notice of intention to cancel a visa under s 109 of the Migration Act 1958”.

26                  The notice commenced with the following sentence:

It has come to the Department’s attention that you may not have complied with sections 101, 104 and 105 of the Migration Act 1958.

27                  Sections 99, 101, 104 and 105 were then set out.

28                  The notice continued:

On 31 May 2000 you applied for a Spouse visa on the basis of your marriage to Ms Shabreen Ali.  You told the Department that you had married on 29 May 2000 and that you resided with Shabreen Ali, as husband and wife, at 1/66 Chapel Street, Belmore.  You provided a number of statutory declarations stating that you and Ms Ali lived together as husband and wife.  You also provided utility accounts (electricity and gas) addressed to you and Ms Ali at 1/66 Chapel Street, Belmore and a lease in both your names to support your claims that you lived together as husband and wife.

You moved from 1/66 Chapel Street, Belmore to 24/157-171 Haldon Street Lakemba in February 2002.  You provided documentation to the Department representing that you and Ms Ali had taken out the lease on the Haldon Street flat and that you were living together as husband and wife.

I have received the following evidence which indicates that you never lived with Ms Ali as husband and wife.

29                  The notice then set out the evidence which the Department had received to substantiate the alleged non-compliance.  Mr Godwin does not submit that the delegate or the Tribunal was limited to the evidence there listed.  Rather, his submission was that “the particulars of the possible non-compliance” (for the purposes of s 107(1)(a)) and the “way described in the notice” for the purposes of s 108(b)) was the material set out at [28] above, and only that material.

30                  The letter then continued by restating the proposition that the applicant had apparently failed to comply with ss 101, 104 and 105 of the Act.  The notice then went on to invite submissions and information as to whether there had been compliance and if there had not been compliance why the applicant thought his visa should not be cancelled.  There is no complaint made about the terms of the notice as otherwise not fulfilling the requirement of s 107.

31                  The “particulars” of the non-compliance can be seen, at one level, to be the identification of the sections said not to have been complied with, as well as the respect or respects in which that non-compliance occurred.  Mr Godwin submitted that the latter was the correct way of examining the matter.  Approaching the notice in that way, the passages quoted at [28] above would see non-compliance with s 101 by reference only to the falsity of the relevant communications because of the fact that the applicant “never lived with Ms Ali as husband and wife”.  The occasions of the provision of inaccurate information which were identified can be isolated and identified as follows:

(a)               on or about 31 May 2000 the provision of information in the application form that Ms Ali and the applicant lived as husband and wife at 1/66 Chapel Street, Belmore; 

(b)               the provision, on dates unspecified, of statutory declarations stating that the applicant and Ms Ali lived together as husband and wife:  see the statutory declarations of a Mr Rios declared on 26 November 2000, of the applicant declared 6 December 2000 and of Mr Noordin declared 5 April 2002;

(c)               the provision, on unspecified dates, of utility accounts (electricity and gas) addressed to both the applicant and Ms Ali at 1/66 Chapel Street, Belmore: Energy Australia bills dated 22 June 2000, 3 July 2000, 3 October 2000 and 5 October 2001 and AGL bills dated 25 June 2000 and 15 August 2001;

(d)               the provision, on a date unspecified, of a lease of 1/66 Chapel Street Belmore in the names of both the applicant and Ms Ali, the lease being an agreement for lease for six months commencing on 1 June 2000 and made on 29 May 2000; and

(e)               the provision of information apparently on or about February 2002 that the applicant and Ms Ali had moved to Haldon Street, Lakemba, had taken a lease on a flat there and were living there together as husband and wife.

32                  Thus, the argument of Mr Godwin was that the only decision to be made by the Tribunal (for the purposes of s 108(b)) was whether or not one or more of the acts of providing information referred to at (a) to (e) above involved the provision of inaccurate information by reason of the fact that the applicant and Ms Ali never lived together as husband and wife.  As I understand Mr Godwin’s submissions, not only is the assessment of correctness or incorrectness limited to the particular instances of the provision of information as identified in [28] and (a) to (e) at [31] above, but also that that assessment is only by reference to the criterion as to whether the applicant and Ms Ali ever lived together as man and wife, that is whether the proposition that they never did so was correct or not.

the response to the notice

33                  The notice called for a response no later than 25 November 2002.  On 22 November 2002, the Department received a letter from the applicant dated 20 November 2002 together with various enclosures, which included a statutory declaration of the applicant attaching an account of his marriage with Ms Ali and his account of Ms Ali’s family and close friends.  He also enclosed various supporting documents including letters and references from third parties, six statutory declarations from close friends and professional people and various further accounts, photographs, letters and greeting cards.  In the statutory declaration the applicant said that he and Ms Ali had lived together as husband and wife until August 2002 when Ms Ali moved back to live at her mother’s house.  This was said to have been a result of strain on the marriage for various reasons, which included that he had an acute skin allergy which had made him ill tempered.  He then recounted alleged thefts from his rooms by a friend which he had (at his friend’s instigation) accused his wife of being involved in.  It turned out, according to his statutory declaration, that the friend had been the person responsible for the pilfering.  He stated that he loved his wife and hoped that they would resume their life together.  It is unnecessary to examine the detail of all that was contained within the material provided to the delegate by the letter dated 20 November 2002.

34                  After receipt of this material the delegate contacted Ms Ali to discuss the information provided by the applicant and to seek her response.  Significant parts of what Ms Ali said on that occasion were contrary to what the applicant had said in his response of 20 November.  By this time Ms Ali had already provided information to the delegate that she had never lived with the applicant as husband and wife.  The delegate also made contact with people who had provided statutory declarations with the applicant’s response.  It is unnecessary to deal with these enquiries in detail.  It is sufficient to say that they did not apparently falsify, in any way, the information that Ms Ali had given to the Department.  The delegate also spoke to Ms Ali’s mother.  In this communication it became plain that Ms Ali’s mother was not aware of the marriage having taken place and she thought that the applicant was Ms Ali’s boyfriend.

the delegate’s decision

35                  On 27 November 2002, the delegate cancelled the visa of the applicant.  The decision record of the delegate indicated that she was satisfied that Ms Ali and the applicant had never lived as husband and wife and that much of the information provided in support of the applicant’s application for the visa was incorrect.  The delegate stated that she was satisfied that the applicant had not complied with ss 101 and 105 of the Act.  The delegate then proceeded to deal with the exercise of the power contained within s 109. 

the review by the Tribunal

36                  The applicant sought review by the Tribunal. 

37                  On 26 May 2003, prior to the hearing before the Tribunal, the Tribunal sent, pursuant to s 359A of the Act, an invitation to the applicant to comment on information.  This communication referred to various statutory declarations which supported the proposition that Ms Ali had always lived with her mother and had not lived in Chapel Street, Belmore or Haldon Street, Lakemba and that rather than living as man and wife the two had kept the marriage (after an elopement) a secret and had seen each other as if they were, as one statutory declaration put it, undertaking a “dating-like” routine.  Some of the statutory declarations also made allegations that the applicant had used Ms Ali for immigration reasons.  On 20 June 2003, lawyers acting for the applicant answered this by providing a further statutory declaration of the applicant dated 18 June 2003 to the Tribunal together with a chronology of the relationship between the applicant and Ms Ali.  The statutory declaration reasserted the fact that Ms Ali and the applicant had lived together as husband and wife until the first week of August 2002. 

38                  It would appear that Ms Ali applied for divorce from the applicant on 15 April 2003.

39                  On 30 July 2003, the Tribunal, pursuant to s 359A, sent another invitation to comment on information adverse to the applicant.  This letter was sent after the hearing of the matter before the Tribunal.  On 2 September 2003, the lawyers for the applicant answered this by providing to the Tribunal further material including a statutory declaration from the applicant, various documentation and a number of statutory declarations from neighbours and friends said to confirm that they had seen Ms Ali residing with the applicant at Haldon Street, Lakemba.  Submissions were also contained in the letter.

40                  The decision of the Tribunal was made on 8 October 2003.  The decision of the Tribunal as to non-compliance was limited to deciding that there had been non-compliance by the applicant with s 101 of the Act.  The Tribunal described the issues before it in the following terms:

16.      The issues for this review are, as follows:

·          Did the review applicant comply with sections 101 of the Act?

(a)      Did the review applicant give incorrect answers in his application for a Subclass 820/801 (Spouse) visa on 31 May 2000?  The reach of s 101 is extended by s 99 to information given in relation to the visa application.  In the circumstances of this case this extends at the least to information given up until the grant of the permanent visa on 10 July 2002.

(b)      The delegate also relied upon s 105 of the Act.  For reasons explained below, the facts of this case are such that I do not consider that this section adds anything that is not raised by s 101.  Accordingly I confine the review to the claimed breach of s 101.

·          If there was non-compliance with sections 101 of the Act, is it appropriate that the review applicant’s Subclass 801 (Spouse) visa be cancelled?  Is this the correct or preferable decision in all circumstances of the case, having regard to regulation 2.41 and MSI 368?

the arguments of counsel and my reasoning

41                  Mr Godwin says that the question adjacent to paragraph (a) reflects a misdirection by the Tribunal of itself, away from the only correct issue before it.  He submitted that the only decision which the Tribunal could make and the only relevant question that the Tribunal could ask itself for the purposes of s 108(b) was whether or not there was non-compliance by the applicant in the way described in the notice, that is, in respect of the particulars of the possible non-compliance with the notice being the matters set out at [28] above, the falsity being limited to the assertion that the applicant never lived with Ms Ali as husband and wife. 

42                  The error of the Tribunal according to Mr Godwin was that it saw its function as deciding whether the applicant ever gave incorrect answers or incorrect information to the Department up to the time of the grant of the visa, by reason of the extension by s 99 of the reach of s 101 beyond the application, originally made on 31 May 2000.

43                  It can be readily accepted that the cancellation of a visa, especially one granting permanency of residence, is a serious matter.  It is against that background that one comes to ss 107 to 109 of the Act.  The provision of incorrect or false information and the use of “bogus” documents being the matters, broadly stated, that are covered by ss 101, 102, 103, 104, 105 and 107(2) are also potentially very serious matters.  It is easy to understand why the Parliament required some precision and specificity in the notice:  s 107(1)(a).  Particulars of non-compliance with ss 101, 102, 103, 104, 105 or 107(2) are what is called for.  One does not give particulars of non-compliance with s 101 by saying (as was submitted by Mr Reilly) that s 101 has not been complied with.  It is the specifics (the particulars) of that non-compliance that are required to be given.

44                  Thus, I reject the submissions of Mr Reilly that the identification of the relevant section number not complied with is an adequate provision of particulars for s 107(1)(a).

45                  As a matter of ordinary English usage the words “in the way described in the notice” is apt to pick up what has been and was required to be particularised under s 107(1)(a).

46                  Thus, I accept the submissions of Mr Godwin that in exercising its powers of review under the Act, the Tribunal must decide as the jurisdictional fact (cf Eshutu and SHJB) whether there was non-compliance by the visa holder in the way described in the notice, being the manner particularised in the notice.

47                  I do not, however, agree entirely with Mr Godwin’s submissions.  I do not agree that a proper reading of the notice confines the Tribunal to a decision on the incorrectness or correctness of the information provided and as set out at [28] and (a) to (e) of [31] above merely by reference to deciding whether the applicant and Mr Ali never lived together as man and wife.

48                  Whilst the author of the letter used the phrase “never lived with Ms Ali as husband and wife”, the use was in the context of describing what the evidence that had been received by the Department was said to indicate.  Read in a commonsense way, the particulars of the information earlier referred to in the letter were not only that they had never lived together, but that at the time those pieces of information were sent they did not live together.  Thus, I think that the particulars provided for the purpose of s 107(1)(a) included the assertion that as at the time those communications were made and that information provided the applicant and Ms Ali did not live together as husband and wife.

49                  The Tribunal did ask itself a question broader than that required of it under s 108(b), bearing in mind the form of the notice.  It is necessary to ascertain what findings were made in order to see whether, within the wider scope of the question posited by the Tribunal for itself, it indeed answered the question which was properly before it:  that is whether or not the various provisions of information to which I have referred were inaccurate at the time that they were made.  It is necessary to recall that neither the delegate nor the Tribunal called in aid s 104 of the Act, which may have, had it been employed, given a somewhat greater flexibility to the temporal specifics of fact finding.

50                  At [61] of its reasons the Tribunal made a finding that on all relevant versions of events Ms Ali did not live at 1/66 Chapel Street between October 1998 and May 2000.  This falsified an address given by the sponsor at question 79 on the spouse application form.  This, however, was not one of the matters identified in the notice.

51                  At [82] of its reasons the Tribunal began to deal with where Ms Ali was living between May 2000 and August 2002.  It was common ground between the applicant and Ms Ali that Ms Ali did not live with the applicant during the time that he was in Pakistan, being three months in late 2001 to early 2002 and when Ms Ali was out of the country in New Zealand in March 2002.  The Tribunal continued:

But he has consistently provided information to the Department between May 2000 to July 2002 that asserts, or confirms the claim, that he lived with the sponsor at Chapel St between May 2000 to February 2002 and Haldon St from February 2002 to the grant of the visa (July 2002).  The sponsor and her witnesses (mother, cousin, friend and former tenant of the review applicant, Mr Ashraf) deny this.  The review applicant, of course, has his witnesses in support both at the hearing and other statutory declarations from friends on the file.  There is also a great deal of material provided by the sponsor that gives addresses apparently at odds with the claim that she lived with the review applicant at the Chapel St and Haldon St addresses.

[the “sponsor” is a reference to Ms Ali, and the “review applicant” to the applicant]

52                  This positing of the provision of information does not identify with specificity the provision of information referred to in the notice but I would take it that what is described in the notice is included in the reference in the above passage.

53                  Ms Ali gave evidence that she said that she lived over the whole of the period (apart from the agreed periods of time referred to above) with her mother and younger brother at Punchbowl.  She did stay that she stayed one week at Chapel Street when her mother was in New Zealand at the end of December 2000, and in May 2002 on her 19^th birthday.  She spent in a night in a hotel in the city with the applicant after having told her mother that she was staying with friends.  At [87] the Tribunal made the following findings after referring to the evidence:

In the light of all of this material and the claims made at the hearing by Ms Rodriquez and Mr Barkat I find that the sponsor stayed overnight with the review applicant at Chapel St and more particularly at Haldon St many more times than she conceded at the hearing.  And I accept that she held herself out as being married to the review applicant for much of the period of time between May 2000 to July 2002, at least when meeting his friends and acquaintances.  But the sponsor concedes this point.  Her claim is that the review applicant encouraged her to put documents into the Department which were  false as to where she was living and that he falsely claimed (as did she) that she was living with him all of the time between May 2000 and July 2002, when she was not.  She states that her residence between these dates remained that of her mother’s, Arthur St Punchbowl.

54                  At [90] and [91] of its reasons the Tribunal said the following:

[90]    What follows from the material I have discussed so far is that I do not accept the sponsor and the mother’s claims that the sponsor never lived with the review applicant at the Chapel and Haldon St addresses, but always lived at Arthur St between May 2000 and July 2002. But finding in this way does not mean that the sponsor always lived with the review applicant, as he claims.  The key to this case in my view lies in the remarks of the cousin – that the sponsor lived a double life.  Her mother did not regard her to be married to the review applicant during 2000, 2001 and much of 2002.  Over this period of time her family by and large regarded the couple as being in a relationship of boyfriend/girlfriend.  The sponsor may well have presented herself to friends of the review applicant as his marital partner but I accept her claim that she did not present the relationship this way to most of her family and friends.

[91]    On this point I note the evidence given by the sponsor at the hearing recorded at paragraphs 56 to 60 above.  I accept this evidence as to the character of the relationship between the couple.  Even though I do not accept it as accurate as to the amount of time the sponsor spent at night at either Chapel St or Haldon St.  I find that the sponsor considered that she was in a genuine “relationship” with the review applicant until her return from New Zealand in April 2002.  And I accept that the couple were reconciled in May 2002.  At the interview with the Department on 2 July 2002, in my view, the sponsor considered that the relationship was sound.  She said at the hearing that as part of this reconciliation in May 2002 the review applicant had asked for her hand in marriage.  I take this odd remark to mean that she hoped that her double life would be resolved by the holding of a further (religious) marriage ceremony which her family would attend.  In this way her life, divided for some years through her relationship with the review applicant, would become whole again.

55                  The Tribunal then, in the following paragraphs, descended to some particularity as to provision of information.  At [92] the Tribunal stated the following:

At a number of points of time during the processing of the visa the review applicant gave information to the Department that stated, or supported the claim, that he and the sponsor were living together on a permanent basis at Chapel St and then Haldon St.  These occasions were 28 November 2000, 6 December 2000, 6 September 2001, 3 October 2001, 15 May 2002 and 10 July 2002.  The information provided is discussed in more detail at paragraphs 20 to 30 above.

56                  Mr Godwin emphasised the change of language in this paragraph referring to the emphasised words “on a permanent basis”  Mr Godwin says that this is an important change from the expression living as “husband and wife”.  I think this placing too much emphasis on the precise terms used:  cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-272.  I do not think that the Tribunal was directing itself to any different question than the substance of the notion of the applicant and Ms Ali “living as husband and wife”.

57                  Of the occasions referred to in [92] of the Tribunal’s reasons only the 6 December 2000 occasion is common to the notice; 6 December 2000 is the date of the statutory declaration in which the applicant said the following, amongst other things:

Our relationship is genuine and true, we have a lot of things in common and currently we are living together as husband and wife at the above stated address.

58                  However, the Tribunal only felt able to make certain limited findings.  In [95] it stated the following:

…On the basis of this material I find that the sponsor resided with her mother during 2001 and 2002 for periods of time when the review applicant said that she was residing with him.  Exactly when she was sleeping at Arthur St and when at the other addresses I cannot say.  Just as I come to no finding, for instance, as to precisely when the mother had met the review applicant prior to January 2002.  But I do find that for significant periods of time in 2001 and 2002 the sponsor did not reside with the review applicant but lived at her mother’s place.  And that these periods of time were outside of the review applicant’s trip to Pakistan in October 2001 to January 2002, and the sponsor’s trip to New Zealand in March 2002.  It follows from this finding that the review applicant, on my view of these matters, provided incorrect information to the Department on this issue.  He is in breach of s 101 of the Act as extended by s 99.

59                  The difficulty with these findings is that they do not direct themselves to the occasions referred to in the notice; except that it can be said that to the extent that findings were only made in relation to 2001 and 2002 there is no finding about any particular occasion in 2000.

60                  On the proper construction of s 107 and 108 and limiting itself to s 101 (as it was conceded by Mr Reilly to be the proper approach given the approach of the delegate) the Tribunal failed to direct itself to answering the appropriate question called for by s 108 (b). 

61                  It may be that there can be no specific answer to the question as to whether the particularised information was inaccurate when given; on the other hand, based on the evidence sufficiently precise findings may be possible.  Without the application of s 104 to make more flexible the fact finding, that difficulty may or may not be able to be cured.  However, as it stands, I do not think that the Tribunal appropriately directed itself to its task and has not answered the appropriate question, to the extent it can be answered, dictated by the terms of the notice under s 107(1)(a).

62                  Therefore, on this basis I do not think that it was, on the findings made, open the Tribunal to move to the exercise of the power under s 109.

63                  In these circumstances, I conclude that the Tribunal has purported to exercise a power which it was not as yet authorised to exercise and in so doing acted beyond jurisdiction.

64                  I will order that the parties bring in short minutes conformable with my reasons including an order under O 29 of the Federal Court Rules providing for a separate determination of the issues concerning the Tribunal decision.

65                  Subject to any appeal on the question I have decided, there will be a need to examine the delegate’s decision.  I would be minded if an application were made and subject to hearing the parties, to grant leave to appeal.  However, that would not necessarily prevent the second stage of the hearing taking place.  The parties should consider how they wish to proceed in this regard.

Associate:

Dated:              30 March 2004