FEDERAL COURT OF AUSTRALIA

Farah v Minister for Immigration and Citizenship [2011] FCA 185

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the costs of the first respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Magistrates Court of Australia given on 14 October 2010, in which the appellants’ applications for constitutional writs pursuant to s 75(v) of The Constitution and s 476 of the Migration Act 1958 (Cth) (“the Act”) were dismissed. Those applications named the Minister for Immigration and Citizenship and the Migration Review Tribunal as respondents, and related to a decision of the Tribunal made on 18 June 2010. That decision affirmed an earlier decision of a delegate of the respondent Minister to cancel the “Carer” visa of the first appellant, Farah Farah. The cancellation had been done under s 109 of the Act on 2 December 2009.

2    The second, third, fourth and fifth appellants were also applicants in the Federal Magistrates Court. Their visas depended upon their status as family members of the first appellant. Their visas were cancelled not by the delegate under s 109, but by operation of s 140 of the Act itself. Although they purported to apply to the Tribunal for a review of the delegate’s decision to cancel their visas, the Tribunal held, rightly in my view, that it did not have jurisdiction to review the operation of s 140 of the Act. Both the proceedings before the Tribunal and the application in the Federal Magistrates Court were concerned wholly with the circumstances of the first appellant, and it is likewise those circumstances which should govern the disposition of the present appeal. Unless that appeal is successful, the visas of the other appellants will remain cancelled by the operation of s 140. In the circumstances, I shall refer to the first appellant as “the appellant”, and say nothing further about the other appellants.

3    The appellant is Lebanese and, at all times prior to his entry into Australia under the visa which was cancelled in December 2009, he resided in Lebanon. He had an uncle who lived in Sydney, and who became seriously ill. As a result, on 30 June 2008, the appellant applied for a Carer visa, so that he might travel to Australia to look after his uncle.

4    On 4 September 2008, the appellant was interviewed by a departmental officer in Lebanon. He told the officer that his uncle had lung cancer, and needed permanent assistance for at least two years in relation to all daily activities. On 30 October 2008, the appellant spoke to a departmental officer by telephone. The officer asked him whether his uncle was still alive, and he replied that he was. The officer asked how long the doctor predicted that his uncle would live, and the appellant replied that the doctor had said that there were four phases (presumably of cancer) each being six months long. He said that his uncle was now in the second phase, that his condition was stable and moving towards improvement. The appellant confirmed that his uncle was still alive, and still had some time to live.

5    As it happened, the appellant’s uncle had died on 18 August 2008.

6    The appellant was issued with a Carer visa on 5 January 2009, and arrived in Australia on 8 February 2009.

7    On 23 October 2009, an officer of the Minister’s department sent a letter to the appellant, pursuant to s 107 of the Act, headed “Notice of intention to consider cancellation under s 109 of the Migration Act 1958”. As will be apparent, that letter invoked certain provisions of the Act under which the appellant’s Carer visa might be cancelled. Before turning to the events which followed the sending of the letter, I should refer to the terms of the provisions in question, and to the procedures for the cancellation of visas which arise thereunder.

8    Section 101 of the Act requires that –

[a] non-citizen must fill in or complete his or her application form in such a way that:

(a) all questions on it are answered; and

(b) no incorrect answers are given or provided.

There was no suggestion that the appellant contravened this section when he completed his form of application for a Carer visa.

9    However, s 99 has a particular operation which made s 101 relevant to the occasions when the appellant was interviewed by departmental officers on 4 September 2008 and 30 October 2008. Section 99 provides as follows:

Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system 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 or provided orally or in writing and whether at an interview or otherwise.

The effect of this provision was that the information given by the appellant at these interviews was taken, for the purposes of s 101(b), to be answers to questions in his visa application form.

10    In point of fact, the information given by the appellant to a departmental officer at these interviews was incorrect. On the face of it, this amounted to a noncompliance with s 101(b). The appellant claimed that he did not then (ie on 4 September and 30 October 2008) know that his uncle had died, but even if this were so, s 100 would make that irrelevant to the operation of ss 99 and 101(b). It provides as follows:

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

The deeming provisions of s 99 apply also to s 100. Thus, ignorance being no defence, it seems clear that the appellant did fail to comply with s 101(b) when he provided information to the departmental officer on 4 September and 30 October 2008.

11    The other presently relevant obligations relate not to the provision of incorrect information, but to the failure to provide corrected information. Section 104 provides as follows:

(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.

Although not directly relevant for a consideration of the Tribunal’s decision in the present case, the terms of s 105 should also be noted:

(1)    If a non-citizen becomes aware that:

(a)    an answer given or provided 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 or provided, 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    The event which triggers the operation of s 105(1) is the non-citizen becoming aware of the incorrectness of the answer, information or response referred to in paras (a)-(d). The event which triggers the operation of s 104(1) is the change in circumstances. In each case an officer must be informed, or notified, of the correct, or changed, position “as soon as practicable”. In the context of s 105, this clearly means as soon as practicable after the non-citizen becomes aware. In the context of s 104, at least in terms, this seems to mean as soon as practicable after the change in circumstances. However, the Minister accepted that actual knowledge was an implicit ingredient of s 104, such that the obligation imposed by subs (1) is to inform an officer of the change in circumstances as soon as practicable after the noncitizen becomes aware thereof.

13    The consequences of a noncitizen failing to comply with one of the provisions to which I have referred above are the subject of ss 107-109 of the Act. Relevantly to the present matter, s 107(1) provides as follows:

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 …, 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 subsubparagraph (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; ….

It was under this provision that the department’s letter of 23 October 2009 was sent.

14    The letter was written by a delegate of the Minister, who said that, on the material before him, there had been non-compliance with s 101(b) of the Act in the following respects:

At the interview you attended on 4 September 2008 at the Australian Embassy Beirut you advised the Department that you were applying for a Carer visa to care for your maternal uncle in Australia. You further advised that your uncle needed assistance in all aspects of his daily life, in walking, showering, preparing food, taking medicine etc.

When you spoke to Departmental staff by telephone on 30 October 2008 you were asked how long your uncle had been sick and you advised that he had been sick for the past 8-9 months. You were also asked whether your uncle was still alive and you advised that your uncle was still alive. Departmental staff asked you what life expectancy the doctor treating your uncle gave him and you advised that the doctor had informed you that there were 4 stages of your uncle’s illness each of which went for 6 months and that he was in the second stage but that his condition was stable and moving towards improvement.

15    The letter also stated the opinion that there had been non-compliance with s 104(1) of the Act in the following respects:

Question 64 on your Application For Migration To Australia By Other Family Members form (47OF) dated 21 May 2008 asks you to give details of the relative(s) in Australia who need your care and you provided the details of your uncle. You did not report this change in your circumstances (your uncle’s death on 18 August 2008) before you were granted your BO-116 visa on 5 January 2009

16    By s 108, the Minister is to “consider any response given by a visa holder in the way required by paragraph 107(1)(b)” and to “decide whether there was non-compliance by the visa holder in the way described in the notice”. Section 109(1) then provides as follows:

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.

In the present case, the delegate’s letter of 2 December 2009 cancelling the appellant’s visa relied upon ss 101(b) and 104(1) in the same respects as had been foreshadowed in his Notice under s 107.

17    It will be seen that the power to cancel a visa was a discretionary one vested in the Minister, and therefore in the Tribunal, in the present case, but the exercise of it was conditioned upon the making of a decision that there was non-compliance with s 101 and/or s 104. That decision was for the Tribunal, the matter not being justiciable in the Federal Magistrates Court. However, if, in making it, the Tribunal misdirected itself as to the content or requirements of one of the sections relied on, there may have been a failure to exercise jurisdiction: Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, 420; Craig v South Australia (1995) 184 CLR 163, 177.

18    In the proceedings in the Tribunal, the appellant gave evidence that he first learnt of the death of his uncle when he arrived at Sydney in February 2009. For reasons which I have attempted to explain above, the timing of the appellant’s awareness of his uncle’s death was irrelevant to the operation of s 101(b) of the Act, but had a bearing on whether the appellant had failed to comply with s 104(1), and if so, when.

19    The reasons of the Tribunal on this subject are, regrettably, less systematic than would be ideal in the case of a statutory authority relying upon a particular provision of the Act to take, or to affirm the taking of, a step having serious consequences, such as the cancellation of a visa. Although it is clear, from a reading of those reasons as a whole, that the Tribunal was well aware of the requirements of s 104, it is not easy to discern a specific point at which a finding was made that the appellant, being aware that the information originally given in his visa application form had become incorrect as a result of changed circumstances, failed to inform an officer of the new circumstances as soon as practicable.

20    Having dealt with the incorrect information given to departmental officers on 4 September and 30 October 2008, the Tribunal found –

… that the primary visa applicant when asked by the Department of Immigration about the welfare of his late uncle, claiming that his uncle was alive and in the early stages of his illness, provided incorrect information to the Department of Immigration.

The Tribunal then dealt with a subject (the appellant’s failure to disclose previous visits to Australia) which, as I read its reasons, was ultimately irrelevant to its decision to affirm the cancellation of the appellant’s visa. The Tribunal’s reasons then continued in the following terms:

The evidence that was provided by the primary visa applicant at hearing was that he found out about the death of his uncle in February 2009 at the time of his arrival at Kingsford Smith Airport with his family. The primary visa applicant claims that he failed to disclose the change of circumstances to the Department of Immigration after his arrival in Australia because of ignorance of the law, the fact that English was his second language, and the fact that he failed to obtain independent advice with regard to this issue.

The Tribunal finds on the basis of the evidence before it, that the primary visa applicant did not advise the Department of Immigration of a change in circumstances or inform an officer in writing of the new circumstances and provide the correct details with regard to those circumstances.

As the Tribunal has decided that there was non-compliance in the way described in the Notice given to the primary visa applicant under s.109 of the Act, in respect of s.101 and 104, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1).

It is only here, if anywhere, that one finds a specific treatment of the matters required to be considered under s 104 of the Act.

21    Notwithstanding those shortcomings, it seems tolerably clear that the Tribunal was satisfied that the appellant had not informed an officer of the change in circumstances brought about by his uncle’s death at any time which might presently be considered to be relevant. On any view, therefore, the appellant had not advised an officer of the change “as soon as practicable” within the meaning of s 104.

22    However, the Minister’s response to the appeal was conducted before me on the basis that the Tribunal’s reasons should be construed as involving a finding of noncompliance with s 104 with respect to the period which elapsed between the death of the appellant’s uncle on 18 August 2008 and the arrival of the appellant in Australia on 8 February 2009. Given the implicit requirement for awareness under s 104 to which I have referred, the question was whether the Tribunal sufficiently instructed itself on this point, and based its conclusion upon a finding, whether or not expressed as felicitously as might be hoped, that, within that period, the appellant knew of his uncle’s death.

23    Counsel for the Minister referred me to a number of passages in the Tribunal’s reasons that made it clear that the state of the appellant’s knowledge of his uncle’s death in the period leading to 8 February 2009 was a matter of lively controversy before the Tribunal, and that the Tribunal rejected the appellant’s denials in relevant respects. My attention was drawn to the following paragraphs in the Tribunal’s decision:

The evidence before the Tribunal indicates that the primary visa applicant had an adult son who was resident in Australia through a marriage to an Australian citizen. The evidence before the Tribunal also indicates that primary visa applicant had two sisters resident in Australia. In addition to this, the primary visa applicant’s late uncle had six adult children all resident in Australia, one of whom had assisted the primary visa applicant in the completion of the Carer Visa application form. Despite the level of contacts that the primary visa applicant had in Australia, the primary visa applicant is asking the Tribunal to find that between June 2008 when he applied for the visa to care for his uncle in Australia, and the time the visa was granted to him in January 2009, and up to the point of his arrival in Australia in February 2009, that he was no aware of his uncle’s death until his arrival at Kingsford Smith Airport in Sydney.

Both the primary visa applicant and his wife claimed to give truthful evidence to the Tribunal at hearing with regard to their lack of knowledge about Mr Matri’s death until their arrival in Australia in February 2009. The Tribunal notes that both the primary visa applicant and his wife gave consistent evidence in regard to the point in time in which they became aware of the death. However, the Tribunal does not accept the primary visa applicant’s evidence that from the time that he applied for the visa in June 2008 until the time that he arrived in Australia as the holder of a Subclass 116 Carer visa in February 2009, that he was unaware of the death of his uncle, given the extensive contacts that he had in Australia. The Tribunal finds it implausible that the primary visa applicant would not have been contacted by his cousin, the son of Mr Matri, who assisted him in the completion of the visa application form to be advised of Mr Matri’s death in August 2008. Further to this, the Tribunal finds it implausible that the primary visa applicant’s adult son would not contact his father to advise of the death prior to his family’s arrival in Australia in February 2009. Further to this, the Tribunal finds it implausible that the primary visa applicant’s adult sisters resident in Australia would have failed to contact the primary visa applicant to advise him of the death of Mr Matri in August 2008. The Tribunal does not accept that communication would have been precluded by the time difference between Lebanon and Australia given the means of communication that are open to human beings in the 21st century.

It is reasonable to expect that the primary visa applicant would have contacted his relatives in Australia with regard to accommodation arrangement before he and his family, a total of 5 peoples arrived in Australia in February 2009. The Tribunal does not accept the primary visa applicant’s claim that he had only contacted his late uncle’s or his wife on two occasions before his arrival in Australia in February 2009.

It was subsequent to these paragraphs that the Tribunal found there to have been non-compliance with s 101(b) of the Act and, subject only to a relatively brief observation about the appellant’s failure to disclose previous visits to Australia, the Tribunal proceeded to find that the appellant had not in fact advised the Department, nor informed an officer, of the change in circumstances brought about by his uncle’s death, in the passage to which I have referred in para 23 above.

24    Given the findings which the Tribunal made, and the general organisation of its reasons, I am satisfied that those reasons disclose a finding that, before he arrived in Australia on 8 February 2009, the appellant was aware that his uncle had died, and reliance on that finding for the purposes of s 104 of the Act. I am satisfied, therefore, that the Tribunal did not misdirect itself with respect to its task under that section.

25    I have been obliged to deal with this s 104 question at some length, and in a manner which, perhaps, does not have the appearance of purely appellate review, because of the way in which the subject was approached by the Federal Magistrate. Although, in the background section of his reasons, his Honour identified s 104 as amongst the provisions which was covered by the delegate’s letter of 23 October 2009 under s 107 of the Act, and noted also reliance upon s 104 in the delegate’s letter of 2 December 2009 cancelling the appellant’s visa, his Honour did not otherwise mention the section in his reasons of 14 October 2010.

26    His Honour noted that the grounds of the appellant’s application under s 476 of the Act included that the Tribunal had “failed to substantiate the reasons for its decision” and that the Tribunal had “misapplied the law”. His Honour identified one of the groups of the appellant’s then complaints in the following terms:

There was no “proof” that he had provided misleading information. He had sworn to the Tribunal that he did not know his uncle had died before he came to Australia.

In my view, the existence of a complaint in these terms required his Honour to consider whether knowledge of changed circumstances might have been relevant under s 104, and if so, whether the reasons of the Tribunal disclosed a consideration of that subject.

27    Dealing with the assertion by the appellant that the Tribunal had misapplied the law, the Federal Magistrate noted that no particulars had been provided and that, in submissions before him, the appellant gave no explanation for this ground of review. His Honour continued:

In any event, in relation to the consideration of the decision of the cancellation of Mr Farah’s visa for the reasons already set out above, no misunderstanding of misapplication of the law is evident. The Tribunal set out the relevant law in this regard in unexceptional terms in its decision record….

What his Honour meant by “for the reasons already set out above” is, I consider, revealed in the passages from his reasons to which I refer in the next paragraph.

28    Under the heading “Consideration”, the Federal Magistrate said:

30.    The submissions plainly misunderstand the task of the Tribunal. Mr Farah’s visa was cancelled pursuant to s.109 of the Act. The Tribunal properly considered the notice issued preliminary to the cancellation, and then found the delegate had reached the requisite state of mind to engage s.109. No error by the Tribunal is revealed here.

31.    The Tribunal found, at least, that there had been a breach of s.101 of the Act by Mr Farah in relation to the provision of “incorrect information”. Before the Court Mr and Mrs Farah were at great pains to state that they had not provided incorrect information to the Minister’s department because they were honest people and at the material times did not know their uncle had died. They had sworn to this.

32.    The problem for Mr and Mrs Farah in this regard is that s.111 of the Act states that, relevantly, s.109 applies: “whether the non-compliance was deliberate or inadvertent”. The fact remains that, when Mr Farah gave answers to relevant questions about his uncle’s health in September and October 2008, he did not tell the departmental officers that his uncle, who after all was the central reason for the issuing of the Carer visa, had died in August 2008. Even if this was “inadvertent”, s.109 still applied. There was no legal error in the way the Tribunal proceeded to this point.

33.    The Tribunal then proceeded to consider and weigh the matters arising from reg.2.41. In this consideration, amongst other things, it weighed the explanation provided by Mr and Mrs Farah as to why they did not know or were not told of their uncle’s death (August 2008) until their arrival in Australia (February 2009).

34.    The Tribunal found their evidence to be implausible in this regard. This was at least reasonably open to the Tribunal in the circumstances presented. The applicants’ complaints before the Court now, their protestations of honesty, their assertions of no wrong doing, or that there was no “proof” that they knew of their uncle’s death, or even the claimed existence of cultural factors which precluded the many relatives of telling them of the uncle’s death until six months later and coincidentally on the day of their arrival in Australia, do not rise above a request for this Court to engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

And:

40.    It cannot be said, on any plain reading of the decision record, that the Tribunal did not give proper consideration to their evidence at the hearing. What remains is that the Tribunal found s.109 was engaged, and found implausible their explanation for the provision of incorrect information. The Tribunal made findings which were reasonably open to it, and for which it gave reasons. No error, let alone jurisdictional error, is revealed in these circumstances.

These observations were said by his Honour to demonstrate that the appellant’s ground of review that the Tribunal had failed “to substantiate the reason for its decision”, should fail. His Honour held that that ground was “in fact hopeless”.

29    I am bound to say, with respect, that the Federal Magistrate expressed these conclusions without, at so far as I can see from his Honour’s published reasons, giving close attention to the requirements of s 104 and to the Tribunal’s matching of those requirements with the facts as found. I agree with his Honour that the Tribunal “made findings which were reasonably open to it, and for which it gave reasons”, but it might yet have constructively failed to exercise its jurisdiction if it had not matched those findings with the requirements of the sections under which it ultimately acted. This might not be a problem in a case in which there was a single source of power, such that it might be inferred that all of the relevant findings of fact were necessarily referrable to that source. However, in the present case, the Tribunal acted under both s 101(b) and s 104(1). The latter, but not the former, required knowledge. In a case in which a single power (here the cancellation of the appellant’s visa) is exercised by reference to two or more sources, in the absence of specific indications to the contrary, a court of judicial review normally cannot assume that the power would have been exercised, or exercised in the same way, if one of those sources had been unavailable. It was, therefore, important in the present case for the Federal Magistrate to consider whether recourse to s 104 of the Act by the Tribunal may have been vitiated for its failure to consider whether, at the relevant time, the appellant knew of his uncle’s death. It was because his Honour did not approach the matter in this way that I have found it necessary to do so myself, albeit that, like his Honour, I reach the conclusion that the Tribunal neither misdirected itself nor failed to consider the appropriate match of the facts as found by it to the requirements of s 104.

30    In expressing these views, I do not believe that I am implicitly imposing upon the Federal Magistrate the obligation to have perceived in the case of the appellant a jurisprudential basis for a challenge to the Tribunal’s decision which was not reasonably apparent on the case as conducted before his Honour. As his Honour noted, it was an emphatic part of the appellant’s case that he did not know of his uncle’s death before he arrived in Australia. His Honour addressed the relevance of that proposition in the context of s 101, although I do not accept that s 111, which provides –

To avoid doubt, sections 107, 108 and 109 apply whether the noncompliance was deliberate or inadvertent.

– has anything to do with the present matter. However, having considered what might be the legal significance of the appellant not having being aware of his uncle’s death in the context of s 101, his Honour did not deal with the same question in the context of s 104. For reasons for which I have attempted to explain, I consider, with respect, that the case before his Honour required such a consideration.

31    For the reasons given earlier, I propose to dismiss the present appeal with costs.

Associate:

Dated:    9 March 2011