FEDERAL COURT OF AUSTRALIA

Bektesevic v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1375

SADAT BEKTESEVIC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SAD 216 of 2005

MANSFIELD J

14 SEPTEMBER 2005

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application for interlocutory relief is refused.

2.                  The costs of the application be the respondent's costs in the cause.

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

REASONS FOR JUDGMENT

the application

1                     The applicant arrived in Australia on 11 September 2005 at Adelaide Airport as the holder of a Class 676 Visitor Visa (the visa).  Before being immigration cleared - see s 172(2) of the Migration Act 1958 (Cth) (the Act), the visa was cancelled by a decision of a delegate of the respondent under s 116 of the Act.  The applicant was taken into detention.  The respondent intends to remove him from Australia as soon as practicable.

2                     On 12 September 2005, the applicant applied orally for an order setting aside the cancellation of the visa for jurisdictional error.  The respondent then agreed not to take steps to remove him from Australia for a brief period.  On 13 September 2005, the applicant formally instituted proceedings seeking orders quashing the cancellation decision and for other prerogative relief.  He also applied for interlocutory injunctive relief restraining the respondent from taking action to remove him from Australia, and then to secure his release from detention, pending the hearing and determination of the principal proceeding.

3                     It is common ground that the grant of interlocutory relief depends upon the Court being satisfied that there is a serious question to be tried that the delegate of the respondent made the cancellation decision through jurisdictional error, and that on the balance of convenience the interlocutory relief sought should be granted.  The determination of the balance of convenience may be affected by the Court's evaluation of the strength of the serious question to be tried:  see for example Mason ACJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 and 155.

4                     The respondent accepts that, if the Court is satisfied that the applicant shows a serious question to be tried as to the invalidity of the cancellation decision, and having regard to the balance of convenience, interlocutory relief restraining the respondent from removing the applicant from Australia should be granted.  She disputes that there is a serious question to be tried.  She strongly contends that even, if a serious question to be tried as to the invalidity of the cancellation decision is established, the balance of convenience would not lead to the applicant's release from detention pending the hearing a determination of the validity of the cancellation decision.  The appropriate course in such event, she submits, is for there to be a hearing of the principal claim as soon as possible.

5                     The cancellation decision was made under s 116(1)(d) of the Act.  It provides:

‘(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.’

6                     The cancellation decision involved two steps:  the existence of grounds to cancel the visa, and then the exercise of the discretion whether or not to do so.

7                     It is accepted for the purposes of the interlocutory application that the delegate of the respondent did not commit jurisdictional error in concluding that the applicant had been deported from the USA in 1997, and was refused entry into the USA in 2002 and that he had not declared those facts in his application for the visa, so that grounds for the cancellation decision existed.

8                     The alleged jurisdictional errors relate to the exercise of the discretion then available to the delegate to cancel the visa.  Those jurisdictional errors were dealt with in two blocks by counsel for the applicant, namely, what he called ‘procedural errors’, and ‘errors by the improper exercise of the jurisdiction’.  It is convenient to adopt those two general headings to address the contentions. 

ALLEGED PROCEDURAL ERRORS

9                     Section 119 prescribes procedures to be followed in cancelling a visa under s 116 of the Act.

10                  By s 119(1)(b), the delegate was required to notify the applicant that there appears to be grounds for cancelling the visa, to give particulars of those grounds, and to invite the applicant to show that those grounds do not exist and to give reasons why the visa should not be cancelled.  That notice under s 119(1) was given to the applicant at 13:50 on 11 September 2005.  The first contention is that the delegate failed to comply with the obligation to give the applicant the opportunity provided for by s 119(1)(b), as the applicant speaks and reads only limited English.  Both the notice under s 119(1) and the delegate's communications with the applicant were only in English.

11                  I assume that it is arguable that the obligation under s 119(1)(b) is to give the applicant a ‘real and meaningful’ invitation to participate in a hearing (by analogy with the obligation upon the Refugee Review Tribunal under section 425 of the Act:  see for example Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at 561 per Gray, Cooper and Selway JJ; Tobasi v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 122 FCR 322.  However, on the material before the Court I do not consider that there is an arguable case that, in fact, the applicant was not given a ‘real and meaningful’ invitation under s 119(1)(b) by reason of the applicant’s inability to understand English.

12                  The applicant's affidavit asserts that he ‘speaks some English’, and can ‘read a little English’.  The affidavit is coherent and detailed.  It is in English and was not translated to another language to be sworn.  The person before whom the affidavit was sworn certifies that it was read to the applicant in English and he appeared to understand it.  The affidavit does not complain that the applicant did not understand the notification he was given under s 119(1) of the Act, or the questions asked by the delegate of the respondent.  It does not identify any matter which the applicant in fact misunderstood, or which the delegate misunderstood or recorded inaccurately in the record of the decision under s 116, or which the applicant would have said but did not by reason of any language difficulties.

13                  There is in my view no evidence which provides an arguable case that the applicant was not given a ‘real and meaningful’ opportunity to respond to the notice of intention to consider cancelling the visa, or that he did not understand the notice itself.

14                  The applicant also contends that the delegate did not comply with s 119(1)(b), because the notice of intention to consider cancelling the visa did not give proper particulars of the grounds for cancelling the visa.  It was argued that it was necessary for the notice to specify the answers on the application for the visa which were allegedly incorrect, and give the information by reason of which the grounds for cancellation appeared to exist, including particulars of the ‘confirmation with US immigration’, which were relied upon as reasons for cancelling the visa. 

15                  The possible grounds for cancelling the visa under s 116 were expressed in the notice under s 119(1) as follows:

‘PAX did not declare that he was deported from USA in 1997, or that he was refused entry to USA in 2002.  PAX admitted he had not declared the above.’

16                  I do not think that there is an arguable case that the identification of the possible reasons for cancellation of the visa were not provided by that material.  The obligation in s 119(1) is to fairly inform the person whose visa may be cancelled of the grounds upon which the visa may be cancelled:  see Zhao v The Minister [2000] FCA 1235 at [25].  In my judgment that requirement was fulfilled.  The notice identifies that the applicant may not have declared that personal history.  He understood that issue.  He acknowledged its accuracy.  His subsequent response concerned why, notwithstanding that failure, the visa should not be cancelled. 

17                  Consequently, on that alternative procedural ground, in my view there is no arguable case. 

alleged improper exercise of the jurisdiction

18                  Under this heading counsel for the applicant asserted that, in making the cancellation decision, the delegate:

(1)        failed to take into account relevant considerations, namely -

(a)          that the applicant had used the visa to travel to Australia in June 2005 when he stayed for 3 weeks or so and then departed Australia,

(b)          that the applicant intended to apply for a student visa and that the effect of the cancellation of the visa would be that the applicant would then be precluded from so doing for 3 years unless the respondent is satisfied that there are quite ‘compelling circumstances’ entitling him to do so, because the applicant could not meet the criterion for the grant of a student visa during that period as he could not satisfy Public Interest Criterion 4013, in Sch 4 to the Migration Regulations,

(2)        took into account an irrelevant consideration in making the decision, namely that the applicant lied to the delegate during his interview and, alternatively, took that matter into account when there was no evidence upon which that finding could have been made; and

(3)        made a decision that was so unreasonable that no reasonable person could have made it, in particular having regard to the matters referred to in the preceding two grounds or reasons.

19                  The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is only made out if the decision-maker is bound to take into account that matter.  The identification of matters the decision-maker is bound to take into account is determined by construction of the Act, and if not expressly so specified, then by implication from the subject matter, scope, and purpose of the Act.  See, for example, per Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40.

20                  There are no matters which s 116, or the Act generally, expressly directed the delegate to have regard to in exercising the discretion to cancel the visa.  The respondent has published Migration Series Instruction 368 dealing (inter alia) with such decisions.  It specifies six primary considerations when considering a cancellation decision under s 116, including:

            ‘The person's behaviour in relation to the Department, now and on previous occasions.  For example, the truthfulness of statements made to officers of the department or in applications before the Department and their overall record of compliance with such visa conditions, provisions and/or understandings.’

21                  I am prepared to assume, without deciding, that it is arguable that the delegate was bound to take into account the applicant's behaviour when considering whether to cancel the applicant's visa for the reason that the respondent has identified that matter as a primary consideration when doing so.  I express no view as to whether the assumption is, in fact, arguable.  I am also prepared to assume, without deciding, that in making the decision to cancel the visa the delegate was required to have regard to the fact that one consequence of cancellation would be a significant impediment to any application by the applicant for a further visa under the Act for a period of 3 years.

22                  However, I do not think it is arguable that the delegate did not have regard to either of the matters to which the applicant contends he did not have regard.  The reasons in the decision record for cancelling the visa concluded that the grounds for cancellation of the visa for non-disclosure outweighed grounds not to cancel the visa.  The form upon which the Notice of Intention to Consider Cancellation was given refers to the potential three year exclusion period in the event of cancellation.  It also refers seriatim to each of the primary factors which the respondent directed to be considered by Migration Series Instruction 368, including the applicant's behaviour in relation to the Department now, or on any previous occasion.

23                  The decision record notes, under the section concerning the exercise of the discretion, that there was, ‘no evidence of non-compliance’ with visa conditions which, in the circumstances, must include a reference to the applicant's earlier entry to Australia.  The form has sections for completion by the delegate dealing with each of the respondent's specified primary considerations.  In the section dealing with the applicant's behaviour in relation to the department, the entry records:

‘Admitted during I/V that everything he told me during I/V was untrue.’

It does not specifically refer to the applicant's entry to Australia in June 2005 in that section of the form but I think the earlier reference to there being no evidence of non-compliance with visa conditions must, in the particular circumstances, be taken to include a reference to that earlier entry.  There is also no basis for thinking that the Delegate was not aware of the potential application of the three year exclusion period if the visa were cancelled.  The applicant himself says that he was told that by the delegate before the cancellation decision.  These matters are in my view then covered by the reference in the delegate’s reasons as being matters outweighed by the grounds for cancellation.  I do not consider there is an arguable case to the contrary.

24                  The remainder of the grounds concern the delegate taking into account that the applicant lied during his interview up to the time the decision was made.

25                  It is necessary to refer to the timing of the steps leading to the cancellation of the visa.  The Notice of Intention to Consider Cancellation of the visa was given at 13:50 on 11 September 2005.  It was acknowledged by the applicant at 13:51.  The interview contemplated by s 119(1)(b) was to commence at 14:05.  The interview, apparently, then took place.  The cancellation decision was made at 14:35.  It was notified to the applicant at 14:40, and acknowledged by him in writing at 14:41.

26                  The delegate's notes indicate that he first interviewed the applicant at 12:35, concluding at 13:25, and then from 13:35 to 13:45.  During that interview, the notes indicate that the applicant is denied having had any problems with US Immigration, and then having acknowledged the inaccuracy of that response only when confronted with evidence or information to the contrary.  He is also recorded as having first denied having filled out the visa application form and, subsequently, admitted having done so, including answering ‘no’ to whether he had been refused a visa to any other country or been excluded from or asked to leave any other country.

27                  The notes then refer to the formal decision-making process between 13:50 and 14:35.  They are quite brief.  That may simply be because the relevant notes are in the decision record itself.

28                  The Delegate's notes then record, after cancellation, that the applicant:

‘... advised that everything he told me at interview was not true ...’

and that he:

‘... has messed everything up and was sorry.’

It was only at that point (according to the delegate’s notes) that the applicant said that he proposed to apply in Australia for a student visa, although the applicant's affidavit indicates that he said that at an earlier point.  I have assumed in the applicant’s favour that the matter was raised at an earlier point.  The notes conclude at 15:26.

29                  There is some reason to be concerned about the reliability of the record of the delegate concerning his decision, at least in two respects.  The section for recording the applicant's behaviour reads:

‘- very misleading

- constant lying

-  admitted during I/V that everything he told me during I/V was untrue.’

The delegate's notes do not support that final entry.  It is almost exactly a copy of what the delegate's notes record as having been said after the cancellation decision.  The coincidence of wording, in the circumstances, is hard to explain.  It might support a conclusion that that part of the decision-making record was added after the decision.  To a lesser extent, the same may be said of that part of the decision record setting out the applicant's reasons why grounds for cancellation do not exist.  They include that the applicant ‘was sorry for lying’, but the only reference in the delegate’s notes to the applicant being sorry appears in the conversation after the cancellation decision.  As I have said, an alternative explanation is that the notes of the delegate, do not include in detail all that was said during the process of the cancellation decision, and that his notes of that process are contained only on the record of the decision itself.

30                  On the other hand, there does not appear to be any arguable basis for the applicant disputing that he did not lie during his interview with the delegate.  He acknowledges in his affidavit having done so, although his affidavit is then ambiguous as to how promptly he acknowledged his untruthfulness.

31                  In my judgment, there is no arguable basis for the applicant's claim that he did not lie during the interview.  That was treated as relevant behaviour of the applicant.  The behaviour of a visa holder at interview is not said by the applicant to be a matter which, under s 116, must be ignored in the exercise of the discretion to cancel or not cancel a visa once grounds for cancellation exists.  Indeed, one argument of the applicant referred to above is on the basis that it is a factor to which the delegate must have had regard.

32                  Consequently, I do not consider it is arguable that the delegate took into account any irrelevant consideration, or took into account a consideration for which there was no evidence.  Moreover, upon the whole of the material before the delegate, I do not consider it arguable that the delegate's decision was so unreasonable that no reasonable decision-maker could have made it.  It is not the role of the Court, upon an application such as the present, to consider what decision it might have made upon the same material, or whether it might have sought other material before making the decision.  It is the lawfulness, not the correctness, of the decision which is in issue.

33                  I do not think that the coincidences in the record of interview and the delegate's notes referred to above lead to a different view.  The coincidences may be no more than that.  As noted, the delegate's separate notes about the decision-making process are brief.  That may be because the decision record itself contains his notes of interview during that process.  The entries referred to would then simply record as notes something the applicant said at the time.  Even if certain entries in the decision record were added after the cancellation decision was made (an assumption I make in the applicant's favour for present purposes), on the limited material before me, I do not think it is arguable that they affect the lawfulness of the decision.  The issue as to whether the applicant was lying during the interview was a matter which the delegate was entitled to, and did, have regard to.  There is material upon which he could have formed the view that the applicant did lie to him during the interview.  The reference to the applicant's penitence in the decision record is not of significance itself, except to lend support to the assumption to which I have referred and which I have made in his favour.  There is no contention that there is jurisdictional error in the delegate being satisfied that grounds existed for the making of the cancellation decision.  The applicant's attack upon the decision relates to the exercise of the discretion whether or not to cancel the visa once those grounds existed.  For the above reasons, I have come to the conclusion, on the material presently before me, that there is no arguable case that the delegate committed jurisdictional error in deciding to cancel the visa.  Consequently, it is not appropriate to address the balance of convenience with respect to the two orders sought by the applicant if I had come to an alternative conclusion.  Whether, after a full hearing of all the evidence, the findings might then be in favour of the applicant is, of course, a question which remains to be addressed.

34                  The present order of the Court is that the application for interlocutory relief is refused.  I propose to order that the costs of the application for interlocutory relief be the respondent's costs in the cause.

Associate:

Dated:              26 September 2005