BORG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

LEGISLATIVE BACKGROUND 11 The power to cancel a visa is contained in s 116 of the Act. As relevant here, that section provides: 116. (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: … (b) Its holder has not complied with a condition of the visa; or … (2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled. (3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. 12 No complaint was made, nor could it have been made, about the Tribunal's finding that the applicant was in breach of a condition of her visa. This finding, which depended on the Tribunal's assessment of the applicant's credibility, was clearly available on the material before it. The single issue before me related to the residual discretion, and particularly to the Tribunal's failure to deal in its reasons with a matter which the applicant submits was relevant to the exercise of the discretion. This can be described as the "section 192 issue", as it involves what the applicant says was a breach of s 192 by the immigration officers who attended at the Total Relaxation Centre on 12 October 1998.

THE SECTION 192 ISSUE 13 The single ground relied upon by the applicant is that the Tribunal failed to observe procedures which were required by the Act to be observed in connection with the making of the decision (s 476(1)(a) of the Act). The particular procedure which, according to this submission, the Tribunal failed to observe was the giving of written reasons in accordance with s 368(1) of the Act. This section provides as follows: 368 (1) Where the Tribunal makes its decision on a review, the Tribunal must, subject to paragraph 375A (2) (b) prepare a written statement that: (a) sets out the decision of the Tribunal on the review; (b) sets out the reasons for the decision; (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based. 14 According to the applicant's submission, the Tribunal failed to address certain "unchallenged oral evidence" of the applicant, which was referred to in the written submissions of the applicant's legal representative, to the effect that the migration officers acted unlawfully in breach of s 192(2) of the Act when they first approached the applicant on 12 October 1998. This, it was submitted, was relevant to the exercise of the Tribunal's discretion as it was not in the public interest for such unlawful conduct to be seen to be condoned. It was therefore open to the Tribunal to refuse to cancel the applicant's visa, notwithstanding that a condition had been breached, as a deterrent to future unlawful conduct by departmental officers. The Tribunal failed to mention this matter in its written reasons and was thus, according to the submission, in breach of s 368(1) of the Act. 15 Section 192, as relevant here, provides as follows: 192 (1) Subject to subsection (2), if an officer knows or reasonably suspects that a non‑citizen holds a visa that may be cancelled under Subdivision C, D or G of Division 3, the officer may detain the non‑citizen. (2) An officer must not detain an immigration cleared non‑citizen under subsection (1) unless the officer reasonably suspects that if the non‑citizen is not detained, the non‑citizen would: (a) attempt to evade the officer and other officers; or (b) otherwise not co‑operate with officers in their inquiries about the non‑citizen's visa and matters relating to the visa. (3) An officer may question a non‑citizen detained because of this section about the visa and matters relevant to the visa. … 16 The evidence before the Tribunal which potentially gave rise to the s 192 issue came solely from the applicant. In her evidence, which was given through an interpreter, she referred to the immigration officers entering the Total Relaxation Centre and asking if she was working there, to which she responded in the negative. The following evidence then ensued (p 18, Transcript of Tribunal hearing): Tribunal: And what else happened? Applicant: He then told me to go and sit down there and I said that I would like to give my boyfriend a call and he said no that I was not allowed and he took away my mobile phone from me and told me that I was not going to walk around or get up or anything. Tribunal: And then what happened? Applicant: He then made me sit down and he started questioning me. He spoke quite a lot of things that I did not understand. 17 The applicant went on to give her version of the conversation conducted through the telephone interpreter. The following exchange then took place (p 19, Transcript of Tribunal hearing): Tribunal: And can you remember anything else that he asked you? Applicant: I can't remember - I was really frightened. I was frightened of him and so I just kept on rattling on because he did not ask me in this manner that you are asking me. It wasn't the same manner, it looked frightening. Tribunal: Yes I am sure that it is very frightening when the departmental officers come up to you. So could you understand what the Thai lady on the telephone was saying? Applicant: I understand some and I didn't understand some because I was really frightened so I just kept on talking. I was trembling because he did not allow me to move at all. I sat there as if I was a prisoner. 18 Mr Robinson of Counsel, who appears for the applicant, relies on this evidence as establishing that the immigration officers detained the applicant in breach of s 192(2) of the Act before a decision was made to cancel her visa. It is perfectly clear, Mr Robinson submits, that the conditions of subs (2) had not been met. Indeed the report form, completed by one of the immigration officers, described the applicant as being "co‑operative". 19 No other evidence was given on this issue. The respondent was, of course, not represented before the Tribunal and the applicant was asked no further questions about this matter. Nor was the issue raised in the questioning of any of the immigration officers. Their evidence suggests that the applicant was co‑operative from the outset and that there was thus no need to detain her under s 192. One of them, Mr Gupta, specifically referred to the detention of the applicant under s 189 of the Act, after her visa had been cancelled. The clear inference from this was that no detention had earlier taken place. However there was no evidence directly on the subject, as none of the immigration officers was asked about this matter either by the Tribunal itself or by the migration agent who was assisting the applicant. 20 It is thus apparent that the question of the immigration officers' non‑compliance with s 192 was not raised as an issue during the course of the evidence before the Tribunal. The first reference to that section was contained in a written submission to the Tribunal made by the applicant's migration agent on 18 October 1998. In that submission it was suggested, inter alia, that the Tribunal should exercise its discretion not to cancel the applicant's visa even if the breach of a condition was established. One of the discretionary issues referred to in the submissions was in the following terms (p 44, Relevant Documents): Although a breach of the 'no work' condition is a serious matter it is even more of a serious matter when immigration officers act unlawfully by ignoring section 192(2) of the Act. It is not in the public interest to condone this unlawful conduct and the penalty, as a deterrent, should be an exercise of discretion in favour of the Applicant. 21 The s 192 issue was not directly referred to in the Tribunal's decision. The Tribunal described the conflicting evidence given by the applicant and the immigration officers as to the applicant's clothing when they arrived at the Total Relaxation Centre, and as to the terms of the conversation between them. In both respects the Tribunal preferred the evidence of the immigration officers and rejected the evidence of the applicant. The Tribunal thus found that the applicant was in breach of a condition of her visa thereby bringing her within the terms of s 116(1)(b) of the Act. As to the discretionary issues, the Tribunal quoted the departmental policy guidelines, being contained in Migration Series Instruction No 203 dated 10 August 1998. These guidelines are in the following form: 10.2.2 If the delegated officer determines that a ground for cancellation exists, he or she can consider whether to cancel the non‑citizen's visa. In doing so, delegated officers are to have regard to, but not be limited by, the following matters: · the purpose of intended travel to or stay in Australia; · whether evidence suggests that the visa holder intended a temporary or permanent stay in Australia; · whether the visa holder has travelled to or spent any time in Australia on other occasions and the visa holder's conduct on those occasions; · the present circumstances of the visa holder, such as: - the length of lawful residence in Australia; - the strength of family, social, business and other ties with Australia; - the degree of hardship which would be caused to Australian citizens and permanent residents, if the visa were cancelled and the person required to leave Australia; - any hardship the visa holder would suffer; - ties with other countries; · the circumstances in which the ground for cancellation arose; · the seriousness of the ground for cancellation; · the visa holder's behaviour in relation to the Department eg cooperation with the Department, willingness to come forward, timeliness of responses to the Department; · the time elapsed since the ground for cancellation arose and whether the circumstances which provide the ground(s) for cancellation continue to exist; · the effect of the consequential cancellation by operation of law of visas held by family unit members, in the event that the visa is cancelled …; · the effect of the cessation of any bridging visa Class A or B held by the visa holder, in the event that the visa is cancelled (refer to the MSI Visa Cancellation - General Guidelines for further information on the cessation of bridging visas on cancellation of any substantive visa). … 22 The Tribunal in its decision referred successively to each of the matters raised in cl 10.2.2 of the guidelines. It then proceeded to deal with a submission which had been made on behalf of the applicant, namely that the cancellation of her visa should be set aside as the correct procedures, as required by s 119 of the Act, had not been followed. The Tribunal considered the case law on this issue and concluded that there had been no breach of s 119 and that there was thus no ground to conclude that the correct procedures for cancelling the applicant's visa under s 116 had not been followed. It did not allude to the s 192 issue at all. This omission, as already indicated, forms the basis of the application for judicial review. Mr Robinson submits that the s 192 issue was squarely raised in the applicant's submission, and that there was material before the Tribunal capable of giving rise to it. Mr Robinson concedes that the Tribunal did not need to resolve the issue as to whether there had been a breach of s 192 in order to reach its conclusion. However the matter had been raised, it was a potentially relevant consideration, and the failure of the Tribunal to advert to it meant that the applicant was not in a position to know whether an error of law had occurred which might have enabled her to challenge the decision. 23 The respondent was represented before me by Ms R M Henderson of Counsel. In her written submissions Ms Henderson adverted to the evidence of the immigration officers from which it could be inferred that no occasion arose to detain the applicant under s 192(1) as she was fully co‑operative throughout the interviewing process. Ms Henderson pointed out that the Tribunal gave the applicant's migration agent an opportunity to ask further questions of each of the officers. No questions were put to any of them to the effect that they had illegally detained the applicant under s 192. In the circumstances, Ms Henderson submitted that it is not now open to the applicant to rely upon her "unchallenged oral evidence" as raising a real issue under s 192(2). 24 There is considerable merit in this submission. Certainly the proceedings before the Tribunal are inquisitorial not adversarial. The Tribunal is required to reach its decision on relevant matters raised before it, notwithstanding that they might not have been adverted to by witnesses who were in a position to know about them. On the other hand, the explicit basis upon which the s 192 issue was said to be relevant to the exercise of the Tribunal's discretion was to express disapproval of the officers' "unlawful conduct" and to deter other officers from acting in a similar manner. It would in my view have been highly inappropriate for the Tribunal to have branded the officers' conduct as unlawful, and to have expressed its condemnation in its findings, in a situation where the allegation was never put to the officers and where it was, in any event, implicitly contrary to their evidence. In other words, the "unchallenged" evidence of the applicant on this issue was not, on its own, sufficient to raise a breach of s 192 as a significant issue in the circumstances of this case. 25 There is no doubt that a failure to give written reasons in compliance with s 368(1) of the Act constitutes a failure to observe procedures required by the Act so as to constitute a ground for review under s 476(1)(a) of the Act (Hughes v Minister for Immigration and Multicultural Affairs (Lee J, 17 September 1998, unreported)). 26 On the other hand, it is plainly established that the obligation to give written reasons does not require a court or Tribunal to explore every issue which has been raised in the proceedings before it. As Sackville J said in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414: Legislation such as s 166E(1) of the Migration Act does not require the Tribunal to prepare lengthy reasons dealing with every aspect of the evidence. What is required is that the Tribunal set out in "short and measured, but specific terms its findings in connection with" matters relevant to its decision: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 483, approved in Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 22 FCR 437 at 444. As Wilcox J observed in Our Town v Australian Broadcasting Tribunal at 481 it is not necessary that the reasons deal with all matters raised in the proceedings; it is enough that the findings and reasons deal with the substantial issues on which the case turns. The standard required is not one of perfection and regard must be had to the composition of the Tribunal, which does not necessarily include trained lawyers: Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 157 per Sheppard J. 27 As Jenkinson J put it in Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 - 277: … Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s 43(2) of the Administrative Appeals Tribunal Act 1975, or demonstrate that the contention was not considered in deciding the matter before the tribunal. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing (cf Sullivan v Department of Transport (1978) 20 ALR 323 at 353). In either event there has been, in my opinion, an error of law by the tribunal, so that the power of this court which s 44(1) of the Administrative Appeals Tribunal Act 1975 confers to decide the appeal "on a question of law" is available. The failure of the tribunal to carry out the duty to consider and determine each question of law and fact relevant to the determination of the reference to it of the respondent's decision, or the failure to carry out the duty imposed by s 43(2) of that Act, as the case may be, has brought about a miscarriage of justice by preventing this court from affording the parties a determination whether the tribunal's decision was vitiated by error of law: see Pettit v Dunkley [1971] 1 NSWLR 376. 28 Given the state of the evidence before the Tribunal, I do not consider that the s 192 issue could be categorised as "a substantial issue", or that the applicant's submission in relation to it could be described as "worthy of serious consideration". The matter having been raised in the applicant's submissions, it would probably have been preferable for the Tribunal to have dealt with it. But the evidence was such that the Tribunal could really only have dealt with it in one way, namely by rejecting it as a relevant consideration. Its failure to do so explicitly in its written reasons could not therefore constitute a failure to meet the requirements of s 368(1). 29 It follows that the sole ground relied upon by the applicant must fail. The appeal is therefore dismissed with costs.

I certify that the preceding twenty‑nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate: Dated: 12 May 1999 Counsel for the Applicant: Mr M Robinson

Solicitor for the Respondent: Australian Government Solicitor