Doukmak v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-12-20|Before: Moore J

Introduction 1 This is an application by Mr Ahmad Doukmak ("the applicant") for judicial review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") of 23 March 2001 to cancel the applicant's subclass 309 Spouse (Provisional) visa under s 128 of the Migration Act 1958 (Cth) ("the Act"). The Minister has filed a notice of objection to competency. The ground raised in the objection is that the Court does not have jurisdiction to hear the application because it was not lodged within 28 days of the notification of the applicant of the decision.

Background 2 The following emerges from a letter and the decision record sent to the applicant by the delegate on 23 March 2001 and from the affidavit of the applicant's solicitor filed on 7 September 2001. The applicant is a 29 year old male and is a citizen of Lebanon. He was married in Australia on 12 December 1999 to an Australian citizen who continues to reside here. On 18 May 2000, the applicant was granted a subclass 309 Spouse (Provisional) visa with an expiry date of 19 July 2002. 3 On 23 March 2001, the Australian Security Intelligence Organisation ("ASIO") gave the Department of Immigration and Multicultural Affairs ("the Department") an adverse security assessment concerning the applicant. On the same day, the applicant's visa was cancelled pursuant to s 128 of the Act. 4 On the day the visa was cancelled the delegate wrote to the applicant informing him of the decision. This letter was given to the applicant by hand at the Australian Embassy in Beirut. The precise date the letter was received is uncertain although it appeared to be common ground that it was on or about 23 March 2001. In the letter, the applicant was advised that his visa had been cancelled, the sections of the Act under which the decision was made, and his rights concerning the cancellation. Specifically, the applicant was told that: "The Act gives you the opportunity to comment on the ground for cancellation and to give reasons why your visa should not have been cancelled. A copy of sections 116 and 128 and Migration Regulation 2.43 are attached. If you show that the ground for cancellation does/did not exist, the cancellation of your visa will be revoked. If you show that there is a reason why your visa should not have been cancelled, the cancellation of your visa might be revoked. You should respond to this Notice by 20 April 2001. If you have not responded by 20 April 2001, the revocation of the cancellation of your visa will not be considered." 5 Attached to the letter was a document entitled "Decision Record - Visa Cancellation Under Section 128 of the Migration Act 1958" which outlined the matters the decision maker had to be satisfied of in order to cancel the applicant's visa and the relevant material in respect of each of those matters in the applicant's case. Part of that document said: " PART C GROUNDS FOR CANCELLATION Assessment In order to cancel Mr Doukmak's visa under section 128 of the Act you must first be satisfied that: (a) s 128(a)(i) - there is ground for cancelling a visa under section 116; (b) s 128(a)(ii) - it is appropriate to cancel in accordance with Subdivision F of the Act; and (c) s 128(b) - Mr Doukmak is outside Australia Section 128(a)(i) The appropriate ground for cancelling Mr Doukmak's visa under s 116 is subsection 116(3). This subsection provides that a visa must be cancelled on the following grounds: 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. Mr Doukmak was granted a subclass 309 Spouse (Provisional) on 18 May 2000. He entered Australia on 4 June 2000 on that visa and departed Australia on 17 February 2001. On 23 March 2001 ASIO provided an adverse security assessment for Mr Doukmak. Under Regulation 2.43(1)(b): [the regulation is set out]. It is open for you to find, based on the information above, that there is a ground for cancelling Mr Ranger's visa [sic] under section 116 of the Act. Section 128(a)(ii) You must be satisfied that it is appropriate to cancel in accordance with Subdivision F of the Act. Mr Doukmak may seek to travel to Australia if given notice of an intention to cancel his visa. For this reason visa cancellation without notice while the visa holder is outside of Australia may be considered appropriate. It is open for you to find, based on the information above, that cancelling Mr Doukmak's visa in accordance with Subdivision F of the Act is appropriate in the circumstances. Section 128(b) Departmental records indicate that Mr Doukmak is outside Australia. It is open for you to find, based on Departmental records, that Mr Doukmak is outside Australia. PART D: DISCRETION If you are satisfied that the grounds for visa cancellation under s 128 have been established, you must then consider your discretion to not cancel the visa despite Mr Doukmak's evidence of character concern. Mr Doukmak has travelled to Australia on two separate occasions, the first in 1999 on a visitor visa, and the second time on 4 June 2000, departing on 17 February 2001. The Department is aware that Mr Doukmak is currently married to an Australian citizen spouse." (Emphasis added.) 6 On 24 April 2001, the applicant's solicitors wrote to the Department in response to the letter of 23 March 2001. The applicant's solicitors advised the Department that in their view the March letter was an invalid notification because it failed to satisfy the mandatory requirements of s 129 of the Act. The defect in the March letter was said to be the failure to give any details of the adverse security assessment provided by ASIO (beyond referring to the fact that such an assessment had been provided) with the result that the applicant was not given a genuine opportunity to comment on the allegations and the visa cancellation. The applicant's solicitors advised that in their opinion it was incorrect to regard the entire contents of the ASIO report as 'non-disclosable' information and reference was made to the Department's Procedure Advice Manual. 7 The letter went on to list some of the possible issues which the applicant thought, on the basis of an interview he had undergone with an ASIO officer, the security assessment might be concerned with. It was noted that the possibilities were too diverse for the applicant to attempt to address them. The letter also outlined some of the matters the applicant would wish to put to the Department were he given notification of the cancellation pursuant to s 129, including complaints about the conduct and involvement of ASIO. The letter acknowledged that in accordance with s 129(3) the failure to give proper notification of the decision did not affect the validity of the decision but said the Department was nonetheless obliged to re-issue the notice so that it complied with s 129 and to provide the applicant with a substantive opportunity to respond. 8 The Department declined to reissue the notice on the basis that the letter of 23 March 2001 provided all the necessary information required by section 129. The applicant commenced proceedings in this Court on 7 September 2001.

Grounds for Review 9 The grounds for review as set out in the applicant's amended application filed in Court on 3 December 2001 are as follows: "1. The delegate failed to observe the procedures he was required by the Act to observe in connection with the making of the decision within s 476(1)(a). Particulars The Applicant has not been notified of the decision in accordance with s 129(1)(b) in that he has not been given particulars of the ground of cancellation and the information (not being non-disclosable information) because of which the ground was considered to exist. The reference in the decision to "Adverse security assessment from ASIO" does not satisfy s 129(1)(b). 2. The delegate did not have jurisdiction to make the decision within s 476(1)(b) of the Act. Particulars The delegate has assumed that the decision could be revoked, whereas it could not be revoked. Further, see particulars in paras 4 and 5 below. 3. The decision was not authorised by the Act or regulations within s 476(1)(c) of the Act. Particulars See particulars in paras 4 and 5 below. 4. The decision was an improper exercise of the power conferred by the Act within s 476(1)(d) and s 476(3)(c). Particulars The delegate's consideration of whether cancellation is appropriate notes only that the Applicant is outside Australia and may return if notified of an intention to cancel. This consideration will apply in every case under s 128 and is a rule or policy that fails to have regard to the merits of the applicant's case. Alternatively, it is an irrelevant consideration. 5. The Tribunal (sic) erred in interpreting the relevant law or applying the law to the facts within s 476(1)(e) of the Act. Particulars 5.1 The delegate at various points notes that the ground of cancellation is that in s 116(3). This is an incorrect identification of the ground of cancellation. Moreover it suggests that cancellation is mandatory when this is not the case. 5.2 The statement in the decision record that "you must then consider your discretion not to cancel the visa despite Mr Doukmak's evidence of character concern" is an erroneous formulation of the discretion in s 128 and an error of law. 5.3 The delegate could not be satisfied on the material before him that the competent Australian authorities had performed an assessment according to law as required by regulation 2.43(1)(b) of the Migration Regulations."

The legislative framework 10 Before considering the issues raised in the application it is convenient to set out the relevant provisions of the Act and the Migration Regulations 1994. Where a visa holder is outside the country, the respondent may cancel the visa under either s 116 or s 128. The section under which the applicant's visa was cancelled in this matter was s 128. That section is in subdiv F and applies only when the visa holder is outside the country. If a visa is cancelled under s 128 then subdiv F provides a procedure for notification of the visa holder and the visa holder making an application to have the decision revoked. Section 128 says: "If: (a) the Minister is satisfied that: (i) there is a ground for cancelling a visa under section 116; and (ii) it is appropriate to cancel in accordance with this Subdivision [Subdivision F]; and (b) the non-citizen is outside Australia; the Minister may, without notice to the holder of the visa, cancel the visa." 11 In relation to the first criterion for cancellation under s 128, that is that there must be ground for cancelling the visa under s 116, the ground in the present matter was that specified in s 116(1)(g). That subsection relevantly provides: "116(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: … (g) a prescribed ground for cancelling the visa applies to the holder." 12 Regulation 2.43(1)(b) of the Migration Regulations 1994 (Cth) prescribes the grounds and relevantly provides: "2.43(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with the circumstances in which the Minister may cancel a visa), the grounds prescribed are: (a) … (b) that the holder of the visa has been assessed by the competent Australian authorities to be directly or indirectly a risk to Australian security. (2) …" As noted, a visa may also be cancelled under s 116 which is in subdiv E. Cancellation under that section can occur if the visa holder is within or outside Australia. However, before there can be a cancellation under that section, the Minister has to give the visa holder notice of the intention to cancel and an opportunity to make submissions in respect of the proposed grounds for cancellation. 13 The relationship between, relevantly, the power to cancel under s 218 and the power under s 116 is dealt with by s 118 which provides: "118 Cancellation powers do not limit or affect each other The powers to cancel a visa under: (a) section 109 (incorrect information); or (b) section 116 (general power to cancel); or (c) section 128 (when holder outside Australia); or (d) section 134 (cancellation of business visas); or (e) section 140 (consequential cancellation of other visas); or (ea) section 500A (refusal or cancellation of temporary safe haven visas); or (f) section 501, 501A or 501B (special power to refuse or cancel); are not limited, or otherwise affected, by each other." 14 Section 116, in addition to conferring power to cancel in subs(1), mandates cancellation in certain circumstances. Subsection 116(3) provides: "116(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there existed prescribed circumstances in which a visa must be cancelled." 15 The prescribed circumstances are found in reg 2.43(2) and, for present purposes provide: "For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are: (a) each of the circumstances comprising the grounds set out in paragraphs (1)(a) and (b); and (b) …" 16 Returning to subdiv F, s 129 sets out the manner in which the former holder of a visa must be notified of a cancellation under s 128. The section provides: "129 Notice of cancellation (1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice: (a) stating the ground on which it was cancelled; and (b) giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and (c) inviting the former holder to show, within a specified time, being a prescribed time, that: (i) that ground does not exist; or (ii) there is a reason why the visa should not have been cancelled; and (d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and (e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled the cancellation might be revoked. (2) The notice is to be given in the prescribed way. (3) Failure to give notification of a decision does not affect the validity of the decision." (Emphasis added.) Non-disclosable information is defined in s 5 of the Act. 17 Section 131 concerns the revocation of the cancellation of a visa under s 128 and provides: "131(1) Subject to subsection (2), after considering any response to a notice under s 129 of the cancellation of a visa, the Minister: (a) if not satisfied that there was a ground for the cancellation; or (b) if satisfied that there is another reason why the cancellation should be revoked; is to revoke the cancellation (2) The Minister is not to revoke the cancellation of a visa if there exist prescribed circumstances in which the visa must be cancelled." (Emphasis added) 18 The prescribed circumstances are found in 2.48 which provides: "For the purposes of subsection 131(2) of the Act (which deals with the circumstances in which cancellation of a visa must not be revoked), the circumstance is that the visa was cancelled on a ground prescribed under subsection 116(3)."(Emphasis added) 19 Section 478 of the Act, which has since been amended, prescribed the time in which a person might apply for an order of review in this Court. Section 478 provided: "478 Application for review by Federal Court (1) An application under section 476 or 477 must: (a) be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976 ; and (b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision. (2) The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b)." It can be seen that the 28 day period follows the applicant being notified of the decision.

Challenge to jurisdiction 20 It is convenient to commence consideration of the issues raised by addressing the notice of objection to competency. The Minister contended the application was not lodged within 28 days of notification of the decision, as required by s 478 of the Act. If this is so then it removes from consideration the substantive grounds of review raised by the applicant because this Court has no discretion to extend the time in which a person can lodge an application for review, see for example: Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695. The applicant submitted that the letter of 23 March 2001 was defective in two respects and on either basis did not constitute notification.

(i) Compliance with s 129(1)(b) 21 The first alleged defect was that the letter contained insufficient information to satisfy s 129. The applicant submitted that "notified" in s 478 of the Act means notified in accordance with the Act which occurs when the applicant receives notice of the decision in a form which complies with s 129. Reference was made to the decision of Conti J in Cujba v Minister for Immigration and Multicultural Affairs [2001] FCA 699 at [87] where his Honour held notice had not been given in the form required by s 129 and that "the time for seeking Application for Review did not commence to run until compliance had been effected by the Minister with s 129(1) and (2)." 22 The Minister submitted that the phrase "notified of the decision" in s 478 should be given its ordinary meaning because if the drafter has intended some other meaning the term "notice" or the phrase "in accordance with this Act" would have been used. The Macquarie Dictionary meaning of "notified" is "1. To give notice to, or inform, of something. 2. To make known; give information of…". Counsel for the Minister referred to a series of decisions said to support the contention that s 478 only requires an applicant to be informed of a decision. 23 The first decision was Raj v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 346 in which the issue of notification was raised in a different context from these proceedings. In that matter the issue before Lehane J was whether the applicant was notified of a decision of the Migration Review Tribunal when it was given orally (with the applicant present) or at a later date when he received the Tribunal's written statement of its reasons. Given that the Act at that time provided that if the Tribunal gave its decision orally the applicant was deemed to be notified on the day on which the decision was made, the proceedings focussed on whether the Tribunal had in fact given its decision on the day in question. Lehane J concluded that a decision had been given orally on the day of the hearing because the Tribunal had made clear the substance of its intention which, in that case, was that the applicant did not qualify as a special need relative. 24 In the second decision, Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164, Jenkinson and Beazley JJ, with Lee J dissenting, found that the time limit imposed by s 478 commenced from the time the applicant was notified of the decision rather than the time the applicant was notified of the reasons for decision. Unlike the current proceedings, that case concerned a decision under a part of the Act where provision was made for separate notification of the decision and reasons for the decision. The other cases referred to Solomon v Minister for immigration and Multicultural Affairs [2000] FCA 912, Bariah v Minister for Immigration and Multicultural Affairs [2000] FCA 1253 and Dawai v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 379 were concerned with the factual issue of when the applicant in each case was actually notified of the decision and whether actual or deemed notification is required for the purposes of s 478. In all the cases there had been compliance with the relevant notification provisions of the Act. 25 The Minister submitted that the decision of Conti J in Cujba v Minister for Immigration and Multicultural Affairs appears to have been decided without reference to this line of authority and without substantial argument being directed to the issue. Although, for reasons discussed below, it is not a matter I have to address directly in these proceedings, the submissions of the applicant appear to be correct. Where the Act sets out procedures for notification and those procedures are not complied with, an applicant should not be regarded as having been "notified of the decision" for the purposes of s 478. Indeed I would be bound to follow Cujba v Minister for Immigration and Multicultural Affairs unless I thought it was plainly wrong. 26 The applicant submitted that if notification in accordance with the Act is required by s 478, then the applicant has not been notified. That is because the Department's letter of 23 March 2001 did not satisfy s 129 in that it did not give particulars of the ground on which the applicant's visa was cancelled or particulars of the information (not being non-disclosable information) "because of which the ground was considered to exist". The only information provided to the applicant under the heading "Evidence of grounds for cancellation" was "adverse security assessment from ASIO". It was submitted by the applicant that this did not enable him to understand the case against him and could not be regarded as "particulars of the ground" or "the information on which the ground was considered to exist." On the contrary, the statement was simply a reformulation of the ground itself as set out in reg 2.43(1)(b). Drawing on general principles about particulars in litigation, the applicant submitted that just as pleadings which simply make an allegation replicating the terms of a legislative provision are defective for want of particulars (see Security Pacific Gold Ltd v Tricontinental Corporation Ltd (1991) 107 ALR 351 at 355 -356) so too were particulars provided for the purposes of s 129 of the Act. The applicant submitted that while the notification requirements in s 129 do not require a form of technical pleading to be delivered, they perform the same general function. That is, they allow a former visa holder to know the case he or she must meet. 27 The applicant referred to the decision of a Full Court in Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 where the Full Court held, in relation to the notification requirements under s 119 of the Act that: "Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open. The supporting information will include a description of any evidence upon which the grounds are based. … The section does not indicate explicitly whether notice may be given in more than one way and at more than one time. However provided the statutory purpose of fairly informing the visa holder is served, there is no reason why the requirement of notification which is substantive rather than formal could not be met by both written and oral notification. It may be that the notification could be found in more than one document. So an initial document may, at the request of the visa holder, be the subject of greater elaboration. At a practical working level a degree of flexibility is important. The requirement of notification of grounds of possible cancellation is not a requirement for delivery of some form of pleading which may then be the subject of strict construction and technical criticism. The overall purpose to be served by s 119 is procedural fairness and it is that which informs the construction and application of the section." However, s 119, although in substantially the same terms as s 129, is concerned with notification of an intention to cancel a visa rather than notification of a cancellation itself and the purpose of the provision of particulars in relation to each section cannot, in my view, be assumed to be the same. 28 The applicant referred to three further cases which, it was submitted, establish the principle that the nexus between the ground of cancellation and the information giving rise to the ground must be communicated to the visa holder, so he or she can understand why the information is relevant to the ground of cancellation. In the first case, Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80, Goldberg J was required to consider whether the Minister, in cancelling a visa under s 116, is limited to reasons earlier specified in a s 119 notice of intention to cancel. The issue arose because the scheme set out in subdiv E of Div 3 of Pt 2 of the Act (as opposed to subdiv F with which this case is concerned) in relation to the procedure for cancelling visas requires the Minister, if considering cancelling a visa, to give particulars of the grounds which appear to exist for cancelling the visa and the information because of which the grounds appear to exist. The Minister is then required to invite the visa holder to show within a specified time that those grounds do not exist or that there is a reason why the visa should not be cancelled. In the course of considering that issue, Goldberg J made the following observations: "It seems to me therefore that the Minister is only entitled to cancel a visa on grounds and information which the Minister is satisfied exist if the scheme in Subdiv E of Div 3 of Pt 2 has been followed, that is to say the particulars of the grounds and the information on which they are based must be notified to the visa holder in an appropriate way, which may be orally. However the scheme of the subdivision is not satisfied or complied with simply by the communication of the information. The fact of the nexus between the grounds of cancellation and the information giving rise to the grounds must be communicated to the visa holder. The visa holder must be told that the Minister or delegate considers that the information is a reason for the grounds of cancellation which were being considered. This is made clear by s 119(1)(a) and s 120(2)(b). Under s 119(1)(a) the Minister must give particulars of the information "because of which" the grounds appear to exist. Under s 120(2)(b) the Minister must ensure, as far as is reasonably practicable, that the visa holder understands why the relevant information is "relevant to the cancellation". 29 In the second case, Newall v Minister for Immigration and Multicultural Affairs [1999] FCA 1624, Branson J made the following comments at [18]: "Although it is not a matter which I am required to determine on the present application, I am inclined to doubt that the above "particulars" satisfy the requirement of s 129(1)(b) of the Act. They do not, as it seems to me, explain to the applicant why the fact of his conviction and sentence on 8 August 1994 satisfied the Minister's delegate that his presence in Australia would be a risk to the safety and good order of the Australian community. That is, they do not make it clear whether the Minister's delegate was satisfied that the mere presence in Australia of a person with his criminal record would be a risk to the safety or good order of the Australian community or whether the Minister's delegate was satisfied that his presence in Australia would create a risk that he would engage in conduct in Australia that would place at risk the safety or good order of the Australian community. 30 Finally, in Rios v Minister for Immigration and Multicultural Affairs [2001] FCA 1313, Cooper J held at [38]: "What the notification [under s 119] must do is communicate the nexus between the grounds of cancellation and the information giving rise to those grounds so that the visa holder understands why the relevant information is relevant to the cancellation: Tien v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 405 at 417." However his Honour found that it was sufficient, for the purposes of providing particulars of the intended ground, in that case s 116(1)(g), to refer (in a written notice) to the regulation which set out the prescribed ground and to summarise the factual context in which cancellation arose, as it would have been known to the visa holder from an interview with a Departmental officer. 31 The Minister submitted that what is required by s 129 of the Act must be assessed having regard to the purpose of the notice. The reference to "the ground on which it was cancelled" in s 129(1)(a) is a reference to the ground relied on in s 116. The reference in s 129(1)(b) to particulars of the ground and of the information relied on is given context by the specific ground relied on.

32 The Minister submitted that the scope for particulars of the ground in s116(1)(g) and reg 2.43(1)(b), unlike the generally expressed grounds in some paragraphs of s 116(1), is quite limited. The ground arises when a person has been assessed by the competent Australian authorities to be directly or indirectly a risk to Australian security, so the particulars of the ground and the information on which it is said to be based, is the fact of the provision of an adverse security assessment from a competent authority, such as ASIO, rather than the information on which the assessment was based. The delegate responsible for the decision may not have been, and need not have been, privy to the information which led to the security assessment and could not be said to have based his or her decision on that information. The Minister submitted it was sufficient, for the purposes of s 129, to identify the particular competent Australian authority which made the assessment and the date of the assessment.

33 I accept that s 129(1)(b) was satisfied. What particular information must be provided will depend on the ground relied on and the matters the delegate must be satisfied of in deciding whether the ground exists. In the context of reg 2.43 the Minister need not be satisfied that an applicant is a security risk. The Minister need only be satisfied that the visa holder has been assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security. Any particulars of the ground and information relied upon need only relate to whether a security assessment has been provided, who provided the assessment, when it was provided and what it concluded. All of these matters were addressed by the delegate in the letter of 23 March 2001. In my opinion, the letter of 23 March 2001 contains the requisite information and satisfies the notice requirements of s 129. (ii) Was the letter of 23 March 2001 misleading and if so, with what effect? 34 The applicant submitted that the March letter was defective in another respect in that it was misleading when referring to the applicant's review rights. The letter told the applicant that the cancellation of the visa would or might be revoked if the applicant could show that the ground of cancellation did not exist or there was a reason why the visa should not have been cancelled. These statements, although required to be included by s 129(1)(c), (d) and (e), were, the applicant submitted, misleading in the absence of further explanation or qualification. That was because the combined effect of s 131(2) and reg 2.48 and 2.43(2)(a) was that the cancellation could not be revoked. The letter encouraged the applicant to pursue a futile process while the time in which he could seek review in this Court was running. The applicant submitted that in such circumstances, time for the purposes of s 478 does not run. 35 In response, the Minister submitted that to set out that which the statute requires to be set out is not a 'misleading statement'. Further, the Minister submitted that while the grounds for revocation of the cancellation in the applicant's case were very narrow (that is, restricted to demonstrating that an adverse security assessment had not been provided in respect of the applicant) nonetheless there was power to revoke the cancellation. 36 For the purpose of regulation 2.48, which enlivens s 131(2), it is sufficient that the visa was cancelled on what the regulation describes as a ground prescribed under s 116(3). While reg 2.48 is infelicitously expressed, what is important, for present purposes, is it appears to be immaterial whether the prescribed ground actually existed. I do not accept that revocation was possible in the applicant's case, even in the limited circumstances where the applicant could show that he had not in fact been the subject of an adverse security assessment. The combined effect of s 131(2), reg 2.48 and reg 2.43(2)(a) in the present matter was that once the decision was made to cancel his visa under s 128 in reliance on reg 2.43(1)(b), the Minister had no power to revoke the cancellation. Thus the information contained in the letter of 23 March 2001 was, in my opinion, misleading. Notwithstanding that much of that information was required by s 129 to be included, in the absence of any further explanation about the impossibility of revocation in the applicant's case, the letter had the potential to encourage the applicant to pursue a futile review process. 37 The applicant relied upon two decisions of this Court as establishing that where the notification of a decision contains misleading information about an applicant's review rights, it is not notification for the purposes of s 478. In the first decision, Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 the Immigration Review Tribunal had posted its decision refusing the applicant's visa to the applicant's address but the addressee's name on the envelope was not the applicant's and he did not open the letter. Approximately six weeks later, on 5 February 1996, the applicant was given a copy of the decision by a Tribunal officer who also informed him that, as more than 28 days had passed since the decision was made, the applicant no longer had any right to seek judicial review. The applicant continued to believe that he had lost his right of appeal until 10 April 1996. He lodged an application for judicial review 5 May 1996. It was accepted by the Minister that the letter with the incorrect addressee did not constitute notification of the decision for the purposes of s 478. The issue for determination was whether the applicant had been notified for the purposes of s 478 when he received the decision in February 1996 or at some later date when the misapprehension about his review rights was corrected. Merkel J at 396 made the following observations about the construction and purpose of s 478: "The application of these principles and authorities [regarding statutory construction] in the present case results in it being legitimate and necessary to imply a condition in respect of a notification by the IRT, for the purposes of s 478. The notification must not be carried out in a manner which frustrates or negates the entitlement of the person notified to lodge an application for review of the decision within 28 days of the notification. Another way of putting the implication is that, as the sole or statutory function of a notification for the purposes of s 478 is the commencement of the 28 day period for review, it is an implied condition of the valid exercise of the power of notification that it not be exercised in a manner which frustrates or negates that function." His Honour found at 397: "The 'notification' on 5 February 1996 was carried out in a manner which had the inevitable effect of frustrating or negating the applicant's entitlement to review. In the circumstances of the present case, time only commenced to run under s 478 when the applicant became aware that the advice, that he had no right of review or appeal, was or might not be correct. That occurred on 10 April 1996. At that time the 'notification' of 5 February 1996 became unburdened by the incorrect advice and thereby became a 'notification' for the purposes of s 478." 38 In the second decision, Dranichnikov v Minister for Immigration and Multicultural Affairs (2000) 60 ALD 482 the notification letter sent to the applicant by the Refugee Review Tribunal, informing him that his application for a protection visa had been refused, advised the applicant that he had 35 days from the date of the letter to appeal to the Federal Court. That information was held by Kiefel J to be incorrect and her Honour found that because of the potential for the letter to mislead there was no 'notification' for the purposes of s 478. Kiefel J made the following observations at [29]: "Representations or advices as to time limits, or an applicant's right to apply, may however, affect the operation of s.478, or more particularly, in answer to the question whether an applicant has been "notified of the decision" for the purposes of s.478. The purpose of the section is to impose a limit upon the time for application by having time run from 28 days of notification. In Wang v Minister for Immigration and Multicultural Affairs at FCR 393-395, Merkel J had regard to the purpose of the section and concluded that, whilst there was no obligation on the Tribunal to notify of rights to review, or time limits with respect to them, a notification of the decision by the Tribunal, which is comprehended by the Act for the purposes of s.478, which includes and is accompanied by an untrue statement about review rights, substantially frustrates or negates the function of notification: at FCR 393. An alternative construction of s.478 in its statutory context, and having regard to its role, is that a notification, for the purposes of that section, must be a notification of the decision which does not frustrate or negate the entitlement of the person notified to apply to the Court; at FCR 394." 39 The circumstances considered in both these decisions differ from the present. The misleading information in both related directly to the applicant's right to apply for judicial review in this Court. Nonetheless the principle discussed by both Merkel J and Kiefel J is, in my opinion, apt to apply to the circumstances of this case. The letter to the applicant clearly promoted the view that the opportunity for Departmental review of the cancellation decision had not yet been exhausted when in fact it had. In particular the letter promoted the view that, depending on the applicant's response, a further decision (itself amenable to judicial review) would have to be made on whether to revoke the cancellation. In that way the letter implied that the opportunity for review in this Court would not be exhausted 28 days later because if, after considering submissions from the applicant, a decision was made refusing to revoke the cancellation, the applicant could have sought judicial review of that decision. In those circumstances, the applicant would not have lost entirely the opportunity to seek judicial review of the cancellation decision because judicial review of the revocation decision could have, in effect, traversed the same issues. This is so because the decision maker, in dealing with whether to revoke the cancellation, would have had to consider whether there was a ground of cancellation. : see Newall v Minister for Immigration and Multicultural Affairs (supra) at [20] and Razaei v Minister for Immigration & Multicultural Affairs [2001] FCA 1294. The 23 March 2001 letter did not constitute notification for the purposes of s 478. 40 The respondent's notice of objection to competency fails. This Court has jurisdiction to hear the application.

Issues raised in the application 41 The submissions made concerning the grounds earlier set out were, in summary, as follows. First, the applicant submitted the failure to comply with the notification provisions in s 129 was a failure to observe procedures required by the Act to be observed. It was submitted that s 129(3), which provides that a decision under s 128 is valid notwithstanding a failure to comply s 129(1), does not save a failure to comply with the notice provisions from being a ground of review. The applicant acknowledged that different views have been expressed by this Court on that matter but relied on the approach of Lee J in W157/OOA v Minister for Immigration & Multicultural Affairs [2001] FCA 1536 at [12] to [27]. 42 Secondly, the applicant submitted the delegate was apparently unaware that the cancellation of the applicant's visa could not be revoked. It was submitted this revealed jurisdictional error similar to the jurisdictional error discussed by the High Court Re Patterson; Ex parte Taylor (2001) 182 ALR 657. 43 Thirdly, the applicant submitted that the delegate's decision involved an improper exercise of power, in that his consideration under s 128(a)(ii) of whether cancellation was appropriate under subdiv F did not extend beyond consideration of the fact that "Mr Doukmak may seek to travel to Australia if given notice of an intention to cancel his visa." The applicant submitted that such a consideration would exist in every case because the subdivision only applies to visa holders outside Australia. Alternatively, it was an irrelevant consideration because the Act implicitly requires that the fact a visa holder is outside Australia cannot itself be the foundation for whether cancellation under the subdivision is appropriate. The Minister submitted that it was not the fact that the applicant was outside Australia and might seek to return which, in itself, rendered "appropriate" the decision to cancel the visa under subdiv F. Rather the relevant consideration was the fact that the applicant had been assessed as a security risk and as such his return to Australia would be undesirable and weighed in favour of cancelling his visa without prior notice. 44 Fourthly, the applicant submitted the delegate did not have before him information providing a basis for being satisfied that a genuine security assessment had taken place. The facsimile provided to the delegate by ASIO was said to be insufficient material for this purpose. The Minister submitted that the facsimile was sufficient to support the delegate's conclusion that the terms of the assessment reflected the statutory test. The assessment applies the statutory test with precision, that is, it states - "ASIO assesses Ahmad Doukmak to be a direct risk to Australian national security". 45 Finally, the applicant submitted that the decision involved an incorrect interpretation of the relevant law in that the delegate misstated the discretion to cancel under s 128. Under the heading 'Discretion' the decision record notes "you must then consider your discretion to not cancel the visa despite Mr Doukmak's evidence of character concerns." The applicant contends that was a misstatement of the correct test for exercising the general discretion in s 128. The correct test would have involved the delegate asking whether, in all the circumstances, he should cancel the visa rather than approaching the discretion on the basis that, once certain matters had been established, he was obliged to cancel the visa unless he positively decided to exercise his discretion otherwise. The applicant relied, for this purpose, on the decision of Spender J in Ross v Minister for Immigration & Multicultural Affairs (2000) 107 FCR 1 at [27]. The Minister submitted that the delegate in fact had no discretion under s 128 to decide against cancellation, because there existed prescribed circumstances which mandated cancellation under s 116(3). 46 It is convenient to deal first with this final ground of review and set out the submission in a little more detail. Section 128 provides that, if the Minister is satisfied of three matters, he "may", without notice to the visa holder, cancel the visa. The Minister submitted that the word 'may' did not signify the existence of a discretion in all cases. Rather, the word 'may' is used to confer a power, which must be exercised, in certain circumstances which call for its exercise, see: Finance Facilities Pty Limited v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-135. The Minister's submission that the cancellation power must be exercised in this case is dependent on the operation s 116(3). 47 The applicant submitted that s 116(3) mandates cancellation only where there exist prescribed circumstances and the visa is cancelled pursuant to the power under s 116 and not s 128. The applicant submitted s 128 does not contain a subsection in terms equivalent to s 116(3). The sections are found in different schemes reflected in the different requirements concerning notification. In the case of s 116, a visa holder must be given notification of an intention to cancel and an opportunity to make submissions on certain matters before the decision to cancel is actually made. No prior notice is required before cancellation occurs under s 128. For that reason, cancellation is not mandated under s 128 even where prescribed circumstances of the type contemplated by s 116(3) exist. One of the matters of which the Minister must be satisfied before he exercises his power to cancel under s 128 is that there is a ground for cancelling a visa under s 116. Those grounds are found in s 116(1). Subsection 116(3) does not set out any additional ground for cancellation but rather the circumstances in which cancellation must occur. The applicant submitted s 118 makes it plain that ss 116 and 128 are separate and independent sources of power. 48 The following is, in my view, the intended effect of s 128. What the section appears to do is create an opportunity for the Minister to exercise the power to cancel, without notice to the visa holder, when the visa holder is outside Australia, though affording the visa holder the opportunity to have the cancellation revoked. The power to cancel arises if three elements exist. The first is the fact that the visa holder is outside Australia. The other two elements are based on the satisfaction of the Minister. The first is that a ground for cancelling exists. Recourse to s 116 is necessary to ascertain whether a ground exists. However, s 128 does not, in terms, incorporate an analog of s 116(3) that requires cancellation in certain circumstances. Nor is it likely, in view of s 118, that s 116(3) impliedly operates when the Minister is contemplating the exercise of the power conferred by s 128 to cancel. Subdivision F does not elsewhere mandate the exercise of the power. The second element based on the Minister's satisfaction, found is s 128(a)(ii), is that it is appropriate to cancel in accordance with subd F. However this appears to be a gateway that enables but does not require the use of the regime created by the subdivision. A conclusion that it is appropriate to cancel under subd F does not exclude the possibility that it would also be appropriate to cancel under subd E. 49 If these three elements are satisfied is the Minister obliged to cancel? In my opinion, the Minister is not. If the view I have taken about the effect of s 128(a)(ii) is correct, the Minister may, even where the three requisite elements exist, elect to consider whether to cancel under subd E which tells against the expression "may … cancel" in s 128 being what I might describe as a Julius v Bishop of Oxford (1880) 5 App Cas 214 discretionary power. That is, a power that must be exercised if the preconditions for its exercise are made out. Moreover the use of the word "may" in s 128 would ordinarily signify the existence of a discretion. It is not obvious there is an intention to displace the operation of s 33(2A) of the Acts Interpretation Act 1901 (Cth) which applies to s 128 which was introduced (in an earlier guise as s 50AN) in 1992 by the Migration Reform Act 1992 (Cth): see eg. Trong the Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 463 and Gribbles Pathology (Victoria) Pty Ltd the Minister for Health and Aged Care (2000) 106 FCR 1 at [24] and following. 50 The way in which that discretion was described in the record of decision, as a "discretion to not cancel" rather than a discretion to cancel, indicates that the delegate was being asked to answer the wrong question. The delegate may have regarded himself as under an obligation to cancel unless positively satisfied that he should not. A similar issue arose in Ross v Minister for Immigration & Multicultural Affairs. Spender J found at [27] - [29]: "The difficulties in this case, while of the Minister's officers' making, are not simply a matter of semantics, or the consequence of a pedantic view of the words used by the Minister to indicate his decision. The words put before the Minister as recording the choices open to him, and his indication of his agreement with the statement "I do not exercise my discretion to not cancel the visa", demonstrate to me that he wrongly interpreted s 501(2) as conferring a discretion to not cancel the visa. That was an error of law within s 476(1)(e) of the Act. It is apparent that the Minister believed that once paragraphs (a) and (b) of s 501(2) were satisfied he was obliged to cancel the visa unless he positively decided that he should not do so. The Minister's misunderstanding of the nature of the discretion conferred by the section and, implicitly, his view that there was an obligation on his part to cancel the visa unless he positively decided that he should not, was not irrelevant to his decision. [His Honour quotes from Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ said 353] The basis for my conclusion in this case is simply stated: I do not agree with the contention for the Minister that a discretion not to cancel a visa is the same as a discretion to cancel a visa. In terms, s 501(2) is permissive: it confers a power to cancel a visa in the exercise of the Minister's discretion. The interpretation given to the section by the Minister, as evidenced by the explanations proffered to him by his officers and by what he said he decided, is that the section obliges him to cancel a visa unless he is satisfied that he should not. There is, in my view, an important difference between power and obligation. I want to make it plain that I am not concerned in these proceedings with any question of onus: the question in this case flows from a possible difference in what the Minister does, depending on whether the material before him positively satisfies him that the visa should be cancelled (which in my view is what the section directs) or whether it does not. There is no evidence as to whether the material satisfied the Minister one way or the other in respect of what he should do about cancelling the visa. Both the material put before the Minister and the Minister's decision itself, indicate that the Minister thought that he was required to cancel the visa unless he was positively of the state of mind that he should not cancel the visa." 51 For similar reasons the decision of 23 March 2001 to cancel the applicant's visa was affected by legal error and should be set aside. While the applicant has succeeded on this ground, the other grounds relied upon appear to me to lack substance. My reasons, in brief, for so concluding are as follows. 52 As to the first ground (see [41] above) I do not see how a failure to notify the applicant of the decision bears upon the validity of the decision itself, particularly given the effect of s 129(3). 53 As to the second ground (see [42] above), it may be accepted that the delegate apparently believed that there was power to revoke the cancellation. This is revealed in the letter of 23 March 2001 to the applicant. However there is nothing in the record of decision to indicate that this was a factor which influenced the decision of the delegate to cancel the applicant's visa. In Re Patterson; Ex parte Taylor (supra) the decision-maker had been given a minute setting out consequences of various choices that might be made. The minute misrepresented that the consequence of one choice was that the individual in question would have an opportunity to make representations seeking revocation of the decision. Having regard to the facts of that case, that opportunity would not have arisen. Gummow and Hayne JJ (Gleeson CJ and Gaudron J agreeing) concluded that in the absence of any evidence providing a further explanation of the reasons why the decision-maker cancelled the visa, if was to be taken that the decision-maker exercised her discretion on an erroneous footing. In the present case the reasons why the decision was made are articulated in the record of decision. No reference is made to the opportunity for the cancellation to be revoked. It is mere speculation that the delegate's view that there was a power to revoke the cancellation was a consideration influencing the decision to revoke: see Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty Ltd (1988) 62 ALJR 426 at 427. This ground is not made out. 54 As to the third ground (see [43] above) it is not apparent that the decision to exercise the power conferred by s 128 was based simply on a view that the applicant might "seek to travel to Australia if given notice of an intention to cancel his visa". As the Minister submitted, it is apparent the delegate was satisfied of the matter referred to in s 128(a)(ii) by the fact that the applicant was outside Australia and might seek to travel to Australia and that this would occur in the context revealed by the remainder of the decision record. This ground is not made out. 55 The remaining ground (see [44] above) was said to involve the inadequacy of the material before the decision-maker concerning the security assessment. As noted earlier, it is the existence of the assessment and not its contents that enlivens the ground to cancel. The delegate was aware the assessment concerned whether the applicant was a direct or indirect risk to Australian national security. This ground is not made out. 56 For the preceding reasons I have concluded the Court has jurisdiction to entertain this application and the applicant has made out one ground of review. I propose to set aside the decision of the delegate and remit the matter to the Minister for further consideration according to law.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Solicitor for the Applicant: Christopher Levingston & Associates

Solicitor for the Respondent: Australian Government Solicitor

Migration Reform Act 1992(Cth)

Migration Act 1958(Cth)ss 116, 118, 128, 129, 131

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (24)

Cited By (2)