Jalal v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 At noon on 28 August 1998 the respondent, the Minister for Immigration and Multicultural Affairs, by his delegate granted the first applicant, Syed Jamal Jalal, a visa to travel to, enter and remain in Australia. A few hours later the Minister cancelled the visa. The visa was cancelled, because Mr Jalal had given incorrect answers to questions in his visa application form and had given incorrect information to an immigration officer in relation to his application. When the visa was granted the delegate knew that incorrect information had been provided. The issue that arises is whether, in that circumstance, the Minister had power to cancel the visa. The answer will depend upon the proper construction and effect of a number of provisions in Subdivision C of Division 3, Part II of the Migration Act 1958 (Cth). 2 It is necessary first to say something about the facts to understand how the issue arises. Mr Jalal is married to Hamida Jalal, the second applicant. Both were born and lived in Afghanistan. Since the communist coup in 1978 that country has experienced political and civil upheaval. In 1989 Mr and Mrs Jalal and their two children left Afghanistan and travelled to India. There they applied for, but were refused, a migrant visa to enter and remain permanently in Australia. The family then returned to Afghanistan. In 1992 Mr Jalal, an officer in the Afghanistan Army, was allegedly arrested and detained for six months by mujahideen (fighters for holy war) rebels who were seeking to overthrow the communist government. Mrs Jalal decided to go to Pakistan with her children. While in that country Mrs Jalal was granted a class 204 visa. At that time such a visa, styled a woman at risk visa, was granted to a woman who did not have the protection of a male relative and was in danger of victimisation or serious abuse because of her sex: see cl 204.332 of Schedule 2 of the Migration Regulations as then in force. In mid 1993 Mrs Jalal and her children arrived in Australia where they have continued to live. All are now Australian citizens. 3 Shortly after Mrs Jalal arrived in Australia, Mr Jalal lodged at the Australian High Commission in Islamabad an application for a class 100 (Spouse) visa. This is one of the classes of visa that is prescribed by regulation: see Migration Regulations, reg 2.1 and Schedule 1, item 1118. A class 100 visa is granted to a person who is the spouse of an Australian citizen or an Australian permanent resident: see Sched 2 cl 100.12. 4 The application for a class 100 visa was required to be made on a prescribed form: see s 23 and reg 1.17 and Sched 2, cl 100.311 . The particular form that was prescribed (form 47) required an applicant to provide certain information to the Minister. One item of information requested was the details of all countries where the applicant had lived in the previous ten years. An applicant was also required to state whether he or she had been excluded from or required to leave any country. 5 In his application form Mr Jalal did not mention that he had lived in India. Nor did he state that he had been refused the grant of a migrant visa. When interviewed by an immigration officer at the Australian High Commission, Mr Jalal claimed that his arrival in Pakistan in 1993 was the first time he had travelled outside Afghanistan. 6 The Minister's department conducted an inquiry to determine whether Mr Jalal should be granted a visa. In the course of that inquiry the department was informed that Mr Jalal had been a member of the Afghanistan intelligence service known as Khedamat-e Etala'at-e Daulati, or by the acronym KhAD. That organisation had been established after the Soviet invasion of Afghanistan and its officers were trained by the Soviet Committee for State Security (better known as the KGB). KhAD officers were involved in widespread acts of torture and repression against the mujahadeen. The department was also informed that Mr and Mrs Jalal had lived in India and had unsuccessfully applied for visas at the Australian High Commission in New Delhi. 7 The Minister is entitled to refuse to grant a visa to an applicant if, having regard to the person's general conduct, the Minister is satisfied that the person is not of good character: see s 180A of the Migration Act as in force when Mr Jalal made his application: see now s 501. The Minister's delegate formed the opinion that Mr Jalal was not of good character due to his alleged connection with KhAD, the false information in his application form and the false statements he had made to an immigration officer. Accordingly, the delegate refused to grant a visa to Mr Jalal. 8 Mr Jalal applied to the Administrative Appeals Tribunal to review that decision. By that time the criterion for the grant of class 100 visa included a requirement that an applicant satisfy the public interest criteria found in Schedule 4 of the Regulations: see Sched 2, cl 100.225 and it was assumed that Mr Jalal had to satisfy them. The criteria would be satisfied if, among other matters, the applicant met the requirements of cl 4001 (2), (3) or (4). Those subclauses provide: "(2) An applicant meets the requirements of this subclause if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa. (3) An applicant meets the requirements of this subclause if, after appropriate enquiries and consideration of all available evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa, the Minister has decided that that evidence is insufficient to satisfy the Minister of any of the matters referred to in paragraph (1)(b) and subsection (2) of that section. (4) An applicant meets the requirements of this subclause if, despite being satisfied that refusal, under section 501 of the Act, to grant the visa is justified, the Minister has decided not to exercise the power under that section to refuse to grant the visa." 9 The Tribunal was not satisfied that Mr Jalal was a member of KhAD. On the other hand, it did find that Mr Jalal was not of good character for the reason that he had made false statements in his application form and to an immigration officer. This notwithstanding, the Tribunal held that the circumstances were such that it was appropriate that Mr Jalal be granted a visa. Accordingly, the Tribunal set aside the decision of the delegate and remitted the matter to the Minister for his reconsideration with a direction that Mr Jalal met the requirements of cl 4001 of the public interest criteria and that the discretion under s 501 (which by then had replaced s 180A) not be exercised to refuse to grant the visa. By virtue of s 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth), the decision of the Tribunal was deemed to be a decision of the Minister's delegate. Accordingly, the delegate was required to and did grant a class 100 visa to Mr Jalal. 10 Section 128 of the Migration Act provides: "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; and (b) the non-citizen is outside Australia; the Minister may, without notice to the holder of the visa, cancel the visa." 11 The Minister relied upon this provision to cancel Mr Jalal's visa. The Minister says that each of the conditions for the exercise of the power of cancellation had been satisfied. The only question that arises on this application, being an application to review the decision of the Minister, is whether the Minister could have been satisfied that there was a ground for cancelling the visa under s 116. Ultimately it was not seriously contended that if this condition was satisfied the Minister's decision was in error. 12 Section 116 contains a number of grounds for cancelling a visa. The only one that is relevant is that found in s 116(1)(d) which provides that a visa may be cancelled if the Minister is satisfied that: "if its holder has not entered Australia or has so entered but has not been immigration cleared - it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared;" The question at issue then is whether the visa that had been granted to Mr Jalal was liable to be cancelled under Subdivision C on the assumption that Mr Jalal had entered Australia and had been immigration cleared. 13 Subdivision C comprises s 97 to s 115. Section 101 provides that a "non-citizen must fill in his or her application form" for a visa in such a way that "(a) all questions on it are answered and (b) no incorrect answers are given". It should be noted that s 99 information given to the Minister in relation to an application for a visa is taken for the purpose of s 101(b) to be an answer to a question in the application form. If there has been non-compliance with s 101 the Minister may cancel the visa under s 109. 14 Mr Jalal does not deny that he provided incorrect information in his application form and during the course of his interview with an immigration officer. Thus he accepts that he did not comply with s 101. However, Mr Jalal points out that before he obtained his visa he had acknowledged having given incorrect information and he had supplied the correct information. Mr Jalal only did this after he was confronted with evidence that he had given incorrect information. Nevertheless he says that there is no power to cancel a visa under s 128, where reliance is placed on s 116(1)(d) as the applicable ground, when the delegate was aware that s 101 had not been complied with when the visa was granted. 15 It is to be noticed that Mr Jalal does not rely on the fact that the Minister's department was aware that he had travelled to India and had been refused the grant of a visa, because this information was contained in files at the Australian High Commission in New Delhi. Section 106 of the Migration Act would prevent Mr Jalal from making that submission. That section provides, so far as is relevant, that the requirement to comply with s 101 is not removed by the fact that the Minister or an officer in his department has access to any information given by the non-citizen for purposes unrelated to the visa application. 16 The argument put by Mr Jalal has two aspects. The first is that as soon as Mr Jalal acknowledged that he had given incorrect information and provided the correct information it could no longer be said of him that he failed to comply with s 101. In particular, so this argument goes, Mr Jalal was not in default under s 101 at the time his visa was granted and for that reason s 109 could not be relied upon. 17 There is no substance to this argument. Whether a non-citizen has given an incorrect answer in his or her application form, or has given incorrect information which is deemed to be an incorrect answer in the application form, is to be determined at the moment the answer is given or the information is provided. Thus, if a question on an application form has been incorrectly answered there will be non-compliance with s 101 immediately upon the lodgment of the application form. In the case of incorrect information that is deemed to be an incorrect answer by operation of s 99, there will be non-compliance with s 101 at the instant the information is given. The fact that the correct answer is given some time later does not alter the character of what had previously occurred. 18 The second aspect of the argument presumes that the power to cancel a visa under Subdivision C is only available if the visa is granted on the faith of an incorrect answer given by the non-citizen. This is a more complex argument and requires reference to provisions in Subdivision C that so far have not been mentioned. 19 Subdivision C contains a number of provisions that impose obligations upon a non-citizen wishing to enter the country. The obligation to provide correct answers in an application form for a visa has already been mentioned. The other obligations that must be complied with are as follows. A non-citizen must fill in his or her passenger card so that all questions are answered and no incorrect answer is given: s 102. A non-citizen must not give to the Minister or to an officer in his department a bogus document: s 103. If circumstances change so that an answer in an application form is incorrect in the new circumstances the non-citizen must inform the department of the new circumstances and of the correct answer in them: s 104(1). However, and this is important to note, the obligation to notify the new circumstances only applies to changes in circumstances before the visa is granted (s 104(2)), or if the application for the visa was made outside Australia before the applicant is immigration cleared (s 104(3)). If a non-citizen becomes aware that an answer in his or her application form or passenger card, or information given under s 104, is incorrect when it was given, the non-citizen must notify an officer in the department of the incorrectness and of the correct answer: s 105. 20 If the Minister considers that the holder of a visa who has been immigration cleared did not comply with ss 101, 102, 103, 104 or 105 the Minister may give the holder a notice giving particulars of the non-compliance, stating that if the holder disputes that there was non-compliance the holder may show cause that there was compliance, or if the holder accepts that there was non-compliance the holder may give reasons for the non-compliance, and show cause why the visa should not be cancelled: s 107. 21 The Minister must then consider any response given by the visa holder and decide whether there was non-compliance as alleged in the notice: s 108. If the Minister decides that there has been non-compliance, after considering any response to the notice about the non-compliance the Minister may cancel the visa: s 109. Moreover, non-compliance in connection with one visa may be a ground for the cancellation of a later visa: s 107A. 22 The first thing to notice about these provisions is that nowhere is it stated that the power to cancel a visa can only be exercised if the incorrect information given by the holder induced or was one of the matters that induced the grant of the visa. The second thing to notice is that, read literally, only three conditions must be satisfied before a visa can be cancelled under s 109: first, that the Minister has decided that there was non-compliance by the holder; second, that the Minister has considered any response to a notice under s 107; third, that the Minister has regard to any prescribed circumstances. It follows that unless the power to cancel a visa is restricted in some way, the power may be exercised even though the fact of non-compliance, and all of the circumstances relating to that non-compliance, are known when the visa is granted. 23 How is the ambit of the power created by s 109 to be construed? In a number of decisions in the New South Wales Court of Appeal, McHugh JA explained the importance of interpreting legislation with the general purpose of the statute in mind rather than simply applying the literal meaning of the words used: e.g. Cole v Director-General of Department of Youth & Community Services (1987) 7 NSWLR 541 at 549; Canterbury Municipal Council v Moslem Alawy Society Ltd (1985) 1 NSWLR 525 at 541-543; Australian Postal Commission v Dao (No.2) (1986) 6 NSWLR 497. One way of expressing this rule of construction is as follows. A court will not apply the ordinary or grammatical meaning of language used in a statute if to do so would not give the statute an operation which was intended: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304-5, 320-1; Mills v Meeking (1990) 169 CLR 214 at 223, 234-5, 242-3; Thompson v His Honour Judge Byrne (1999) 73 ALJR 642 at 647-8, 653. 24 What then is the purpose of s 109? Is it to enable the Minister to cancel a visa that was obtained on incorrect information? Or did Parliament contemplate that the power to cancel a visa could be exercised whenever a non-citizen had given incorrect information, even if that was known when the visa was granted? 25 A brief survey of the antecedents of Subdivision C will assist in answering these questions. When the Migration Act was first enacted, permission to enter Australia was obtained by the grant of an entry permit. An immigrant (defined in s 5(1) to include a person intending to enter Australia for a temporary stay or for the purpose of staying permanently) who, not being the holder of an entry permit, entered Australia, became a prohibited immigrant (s 6) and was liable to be deported (s 18). 26 Section 16 provided for circumstances in which the holder of an entry permit became a prohibited immigrant. One circumstance was where a person "for the purpose of securing entry into Australia, produces or produced to an officer a permit, certificate, passport, visa, identification card or other document which was not issued to him or is or was forged or was obtained by false representations" unless that person "is the holder of an entry permit endorsed with a statement that the officer granting that permit recognizes him to be a person referred to in this sub-section": see s 16(1). The other circumstances mentioned in s 16 are not relevant. 27 Changes were made to the situations in which an immigrant (now called a non-citizen) became a prohibited immigrant (referred to as an illegal entrant) by the Migration Legislation Amendment Act 1989 (Cth). An illegal entrant was defined to include a person to whom subsection 11A(1) or (2) applied, provided that person was in Australia, was not a citizen and did not hold a properly endorsed entry permit: s 6(2). Section 11A was the section that replaced s 16. Section 11A relevantly provided: "(1) This subsection applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if: (a) … (b) when, or before, the person entered Australia, he or she: (i) produced, or caused to be produced, to an officer or a person exercising powers or performing functions under this Act, in respect of that entry: (A) a bogus document; or (B) a passenger card containing information that was false or misleading in a material particular; or (ii) made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, in respect of that entry, a statement that was false or misleading in a material particular; (c) when, or before, a visa was granted or issued in respect of the person, he or she: (i) produced, or caused to be produced, to an officer or a person exercising powers or performing functions under this Act, in respect of the grant of that visa, a bogus document; or (ii) made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, in respect of the grant of that visa, a statement that was false or misleading in a material particular; or (d) … (2) This subsection applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if: (a) after entry, an entry permit has been granted to the person authorising the person to remain in Australia; and (b) in respect of the grant of that entry permit: (i) the person produced a bogus document, or caused a bogus document to be produced, to an officer or a person exercising powers or performing functions under this Act; or (ii) the person made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, a statement that was false or misleading in a material particular. (3) A person to whom subsection (1) or (2) applies may give to the Secretary a notice in the prescribed form stating that the person is, for reasons specified in the notice, a person to whom the subsection concerned applies. (4) Where: (a) a person gives the Secretary a section 11A notice; and (b) an entry permit is granted to the person; the person granting the entry permit shall endorse the entry permit with the date of the section 11A notice and a statement that he or she recognises the holder of the entry permit to be a person to whom subsection 11A(1) or (2), as the case requires, applies for the reasons set out in the section 11A notice." 28 Sections 16 and 11A operated in the following way. An entry permit granted to a person who fell within one of the specified circumstances did not take effect as permission to remain in Australia. One of those circumstances was when an immigrant (or non-citizen) provided false information to obtain the permit. However, if before the grant of an entry permit the immigrant (or non-citizen) disclosed that he or she had provided false information, a valid entry permit could be granted. The permit would be valid if it was appropriately endorsed. Importantly, neither s 16 nor s 11A contemplated that an entry permit that had been endorsed could later be revoked in reliance upon the matters that led to the endorsement. 29 Substantial changes were made to the cancellation of entry permits or visas as the permission to enter and remain in Australia came to be known, by the Migration Reform Act 1992 (Cth). One object of the amendments made by the 1992 Act was to simplify the procedures that prevailed under s 20 - s 11A had earlier been renumbered as s 20 - "and to prevent non-citizens from benefiting from the failure to disclose or provide accurate and truthful information in a visa application": para 32 of the Explanatory Memorandum that accompanied the Bill for the 1992 Act. Section 20 was repealed and, for the case where the holder of a visa had made a false or misleading statement to obtain that visa, was replaced by a power to decide whether or not to cancel the visa. The new provisions, comprising s 34 to s50AA are, with some minor variations, the provisions that are now found in Subdivision C. The effect of the new provisions was described in the Explanatory Memorandum: "103 Under the new regime provided for in Subdivision C, there will be an obligation for all non-citizens entering Australia to provide accurate information in application forms and passenger cards and to answer questions asked in those forms correctly. If an inaccuracy is discovered the visa holder will be asked to explain the inaccuracy and to show why his or her visa should not be cancelled. If cancellation of a visa does occur, a non-citizen will acquire unlawful non-citizen status from the date of cancellation. Cancellation decisions will be reviewable on their merits." 30 There are aspects of the new provisions which indicate that the power to cancel a visa for non-compliance with a provision relating to an application form (now ss 101, 104 and 105) is confined to non-compliance that was not known when the visa was granted. First, the obvious intention of the new provisions is to ensure that the Minister or his department is not misled in relation to an application for a visa. Thus, the onus is on the non-citizen to provide accurate information and to correct inaccurate information. Second, the structure of a subdivision proceeds upon the basis that a non-citizen has obtained a visa or gained entry by the provision of inaccurate information. 31 If the subdivision is not given this construction it would produce a curious result. The Minister, who granted a visa with full knowledge of non-compliance could revoke that grant although nothing had changed. What legitimate object would be served by this result? There is none that I can see. If the Minister is aware that a non-citizen has not complied with s 101 the Minister can refuse to grant a visa. On the other hand, if the Minister decides that the non-citizen who has failed to comply with s 101 should be granted a visa that should be an end to the matter. There is no reason of policy that I can detect to construe the legislation in a manner that would give to the Minister an opportunity to reconsider his decision. Further, it would be undesirable if the Minister had that power. If it did exist, it could be exercised at any time, perhaps many years after a visa had been granted. This might cause real injustice though the validity of the exercise of the power is not open to challenge. If an interpretation is available that could avoid this consequence, that interpretation is to be preferred. 32 I also take into account the heading to Subdivision C. That heading reads "Visas based on incorrect information may be cancelled". In parliamentary procedure a heading is not considered an integral part of a Bill. The judicial response to headings is varied. In The King v Hare [1934] 1 KB 354 at 355 Avory J said that headings of sections form no part of a statute. This is not correct. A heading is part of a statute and may be considered in construing the enactment although a heading may not be used to contradict clear and unambiguous language: F Bennion, Statutory Interpretation (1997) 3rd ed at 574-575; R v Schildkamp [1971] AC 1 at 10; Law Society of Upper Canada v Skapinker (1984) 9 DLR (4th) 161; Barwick v Law Society of New South Wales [2000] HCA 2 at 94. See also s 13 of the Acts Interpretation Act 1901 (Cth) which provides that headings, except for a section, shall be deemed to be part of the Act. The heading confirms that the power to cancel a visa is not to be available where the Minister knows of the non-compliance at the time of grant. 33 To counter these considerations, the Minister says that it would be unreasonable to deny recourse to s 109 in circumstances like the present. This is how the Minister puts his submission. Provided a non-citizen satisfies certain criteria, he or she is entitled to a visa. That entitlement remains even if the provisions of Subdivision C have not been complied with. Accordingly, in many cases the only sanction for such non-compliance will be the cancellation of a visa. Hence, the legislation should be construed so as to confer that power on the Minister. 34 The argument is centred on s 65(1) which provides: "(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and (iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and (iv) any amount of visa application charge payable in relation to the application has been paid; is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa." 35 It is true that a non-citizen who meets the requirements of s 65 is entitled to a visa. However, if there has been non-compliance with Subdivision C the applicant may not be of good character (s 501) in which case one of the criteria for the grant of a visa will not be satisfied. In that event there is no need for s 109 to have any operation. If non-compliance with Subdivision C does not lead to the conclusion that the applicant for a visa is not of good character and should not be refused a visa, there is also no need for s 109 to have any operation. Why should the Minister be able to cancel a visa when, in all the circumstances, the non-citizen was entitled to a visa in the first place? What the Minister asserts to be an anomalous consequence of the construction that I prefer is not anomalous but, in my view, is to be characterised as a sensible result. 36 The decision of the Minister is liable to be set aside if the applicant can show that the Minister did not have jurisdiction to make a decision to revoke Mr Jalal's visa (s 476(1)(b)) or that the decision was not authorised by the Migration Act (s 476(1)(c)). An application for that relief can be brought at the suit of the first applicant as the person who is the subject of the decision (s 479). The second applicant may not have standing to join in the application, but nothing turns on the point. 37 It follows that the decision to cancel Mr Jalal's visa will be set aside. The Minister will be required to pay the costs of this application. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.