Ly v Minister for Immigration & Multicultural Affairs

the delegate's decision 4 In the facsimile transmission of 24 June 1998, the delegate stated: Your application for a Class tr (Tourist)Short Stay Visa was received on 23 December, 1997. To be granted this class of visa you must meet certain criteria set out in the Migration (1994) Regulations. As those criteria apply in your case, they require that you seek to visit Australia, or remain in Australia as a visitor for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, child, brother or sister of the applicant or for a purpose other than a purpose related to business or medical treatment; and either has adequate funds, or access to adequate funds, for personal support during the period of the visit. (Clause 676.211 of the Regulations refers). The Regulations also require that you satisfy the Minister that your expressed intention only to visit Australia is genuine (676.221 of the Regulations refers). In assessing your application I took into account material and information supplied by you, your sponsor and your agent, Law Partners. On the basis of this information I am not satisfied that you intend a genuine visit to Australia. In support of your claims that you intend a genuine visit to Australia you presented the following evidence: one letter from the owner of Saigon Hairdressing Salon indicating that you have been employed by Saigon Hairdressing Salon since January 1992. a statement from your agent advising that your occupation as a hairdresser is quite a good one in Vietnam and when you eventually start your own salon you can reasonably expect a lucrative business and this will act as a significant incentive to return to your home country. In assessing your claims that you intend a genuine visit to Australia I have also considered the following factors: You declared yourself to be a hairdresser at the Saigon Hairdressing Salon in An Giang province. As a hairdresser in Vietnam earns a relatively low salary, especially one who works in the province, I find that this is not strong employment commitments that would support the likelihood of your return to Vietnam. Although you[r] agent claimed that you will eventually start your own business, you have not provided any evidence of your own funds and I am not satisfied that you have funds to open your own salon and I therefore do not give significant weight to the fact that you can do so. You stated in your application that you are single and have no dependants. Although you have remaining parent and 8 siblings in Vietnam, I find that this is not strong family commitments that would support the likelihood of your return. Experience have [sic] shown that families are often separated for several years and once permanent resident visa is obtained in Australia, the family is then sponsored for migration under the family reunion class. I conclude that you have not demonstrated that [you] intend a genuine visit to Australia. On the basis of this conclusion, I find that you fail to satisfy one of the criteria necessary for the grant of a Class TR (Tourist) Short Stay Visa and I therefore refuse to grant you that visa. This decision cannot be reviewed by the Migration Internal Review Office (MIRO) in Australia. Please note that no further assessment or review of this application can be undertaken at this post. If you wish to pursue this matter you can exercise your review right (if you have one - see above) or if you have additional information which you believe could lead to the decision maker deciding to grant you a visa you are welcome to lodge a new application.

the applicant's grounds for review 5 The applicant relied on the grounds referred to in s 476(1)(a), (b) and (e) of the Act in submitting that: (1) requisite procedures were not observed in connection with the making of the decision; (2) the delegate misconstrued cl 676.221(2)(c) of Schedule 2 to the Migration Regulations 1994 ("the Regulations"); (3) the delegate erred in applying cl 676.221(2)(c) to the facts; and (4) the delegate did not have jurisdiction to make the decision. The applicant abandoned a ground asserting non-compliance with s 66(2)(a) of the Act.

the legislative framework 6 Section 45 of the Act provides for visa applications by non-citizens. A non-citizen must, by virtue of s 45(1), apply for a visa of a particular class. The manner of application is, in general, governed by the Regulations: s 45(2) and (3). 7 The Act provides for prescribed classes of visas, and for the prescription of criteria for visas of specified classes: s 31. The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances: s 40. (A relevant circumstance in this case was that Mr Ly was outside Australia at the time of the application and, by virtue of cl 676.411, was required to be outside Australia at the time of the grant.) 8 Regulation 2.01(a) provides that the prescribed classes of visas are "such classes (other than those created by the Act) as are set out in the respective items in Schedule 1": but see also r 2.01(b). By virtue of r 2.03, the prescribed criteria for the grant to a person of a visa of a particular class are: (a) the primary criteria set out in a relevant Part of Schedule 2; or (b) if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria. Regulation 2.04 provides that, for the purposes of s 40 and subject to the Regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part of Schedule 2. 9 The provisions governing the grant of a subclass 676 - Tourist (Short Stay) Visa are to be found in Part 676 of Schedule 2 to the Regulations. In order to obtain a visa of that class, an applicant must meet the criteria prescribed in cl 676.211 at the time of application, and the criteria prescribed in cl 676.221 at the time of the decision. The requirements relevant to the applicant were: (1) at the time of the application and of the decision, the applicant seeks to visit Australia for the purpose of visiting an Australian citizen, or permanent resident, who is a parent, spouse, child, brother or sister of the applicant, or for a purpose other than a purpose related to business or medical treatment; (2) at the time of the application and of the decision, adequate funds are available for the applicant's personal support during the period of the visit; (3) at the time of the decision, the Minister is satisfied that "the expressed intention of the applicant only to visit Australia is genuine"; (4) at the time of the decision, the applicant satisfies relevant public interest criteria; and (5) the proposed period of stay in Australia does not exceed three months. 10 The relevant public interest criteria are set out in Schedule 4 to the Regulations. Amongst other things, they require an applicant such as Mr Ly to satisfy certain health criteria and to be of good character. They also require the Minister to consider whether the applicant is affected by a "risk factor", a term that refers to the risk of the applicant's non-return to his or her country of usual residence. A risk factor applies when an applicant for a visa has applied for permanent residence in Australia during the five years immediately preceding his or her visa application, or where the applicant for a visa has all the characteristics of a person specified by the Minister by Gazette Notice: see public interest criterion 4011. Those characteristics relate to such matters as nationality, sex, marital status, age, occupation and place of lodgment of the application for a visa. Where a risk factor applies, the Minister must be satisfied that, having regard to the applicant's circumstances in his or her country of usual residence, there is very little likelihood that the applicant would stay in Australia beyond any period authorised. 11 The Minister is to consider a valid application for a visa and "is not to consider an application that is not a valid application": s 47. Section 54 further provides: (1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application. (2) For the purposes of subsection (1), information is in an application if the information is: (a) set out in the application; or (b) in a document attached to the application when it is made; or (c) given under section 55. (3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions. Pursuant to s 55, the Minister must also have regard to any additional relevant information given by the applicant before a decision is made. The Minister is required (1) to grant a visa if satisfied that the criteria for the visa are met and (2) to refuse the visa if not so satisfied: see s 65. When a decision to grant or refuse a visa is made, the Minister must notify the applicant of the decision in the prescribed way: s 66(1). Where, as in this case, an applicant is not entitled to have the decision administratively reviewed (cf s 66(3) and s 66(2)(c)), then s 66(2) provides that the notification must: (a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa - specify that criterion; and (b) if the grant of the visa was refused because a provision of [the] Act or the regulations prevented the grant of the visa - specify that provision.

the failure to consider all the material ground 12 The applicant, by his counsel, submitted that the delegate had failed to observe the procedures required by ss 47, 54 and 55 of the Act in that the delegate failed (1) to give genuine consideration to Mr Ly's visa application or (2) to have regard to all the information placed before him relating to cl 676.221(2)(c), which provides that: (2) An applicant meets the requirements of this subclause if: … (c) the applicant satisfies the Minister that the expressed intention of the applicant only to visit Australia is genuine. In written submissions, the applicant's counsel submitted that: Specifically the respondent paid no regard to the information in the application which showed the purpose of the Visa was to enable the applicant to visit his cousin in Australia and the genuineness of that intention was attested to by his cousin who had provided a statutory declaration declaring his financial and other support for the visit. I accept, as the applicant's counsel submitted, that the duty of any decision-maker who is required by statute to make a decision is to give what Gummow J described as "proper, genuine and realistic consideration to the merits of the case": see Kahn v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292; Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 at 12-15 per Sheppard J; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 482-3 per Gummow J; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 96 per Hill J; Mocan v Refugee Review Tribunal (1996) 42 ALD 241 at 245 per Merkel J; and Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 57 per Merkel J. Further, I accept, as the applicant's counsel submitted, that s 47, s 54 and s 55 of the Act required the delegate to consider a valid visa application; to have regard to all of the information "in the application" (as defined in s 54(2)); and to have regard to such other relevant information as the applicant provided before a decision on the application was made. I do not, however, accept the applicant's submission that the terms of the notification (or "decision record" as it is termed) sent by the delegate show that the delegate failed to give genuine consideration to Mr Ly's visa application, or failed to have regard to the statutory declaration made by Dr Duong on 9 January 1998. The delegate expressly stated in the notification that he had taken into account "material and information supplied by … your sponsor". The reference to "your sponsor" must, in the circumstances of this case, be read as a reference to Dr Duong. The "material and information" provided by Dr Duong (through Law Partners) included the statutory declaration of 9 January 1998, as well as Dr Duong's certificate of registration as a dentist and financial information. There is nothing in the terms of the notification or elsewhere to show that the delegate's statement was incorrect. 13 The applicant relied on the fact that the delegate did not expressly refer to the statutory declaration as "evidence" presented by Mr Ly that his intention only to visit Australia was genuine. That consideration does not persuade me, however, that the delegate's own statement about what he considered was wrong. Whilst Dr Duong's statement, in his statutory declaration, that he and his parents had invited Mr Ly to Australia "for a short visit" was evidence of his own state of mind, it was not really evidence of the applicant's own intentions. Even if Dr Duong's statement were relevant to the question of the applicant's state of mind because it tended to confirm the applicant's claim, the delegate's failure to mention it specifically does not show that the delegate's account of what he considered was wrong. The delegate's statement of the evidence that had been presented to him did not, in terms, purport to be an exhaustive statement of all the material presented by Mr Ly on the intention issue. 14 As I do not accept the submission that the delegate failed to give genuine consideration to the applicant's visa application or to have regard to information in the application or otherwise, it is unnecessary to consider whether a breach of s 47, s 54 or s 55 of the Act might constitute a ground of review for the purposes of s 476(1)(a) or (b) of the Act.

the interpretation and application of cl 676. 221(2)(c) ground 15 The applicant's counsel further submitted that the respondent's delegate erred in interpreting and applying cl 676.221(2)(c) of Schedule 2 to the Regulations. 16 As already noted, this clause requires the delegate to be satisfied that the expressed intention of the applicant only to visit Australia is genuine. Of course, the clause presupposes that an applicant claims such an intention: if an applicant did not, however, the relevant application would fail: see cl 676.212. 17 Counsel for Mr Ly submitted that the delegate had not directed himself to the real question because (1) the delegate had failed to identify the applicant's stated purpose in coming to Australia, namely, to visit his relations; and (2) the delegate had directed his attention to the question whether the applicant was likely to overstay the authorised period of his stay in Australia. In support of those submissions, counsel relied on the fact that the delegate did not, in the notification of the decision, refer to the applicant's stated reason for visiting Australia. Counsel also referred to the delegate's discussion of Mr Ly's family situation and the reference to experience regarding family separation and subsequent reunion. 18 The reason given by the applicant for wishing to visit Australia was plainly stated in his visa application and in the accompanying material. The Form 48R, sent by Law Partners to the Consulate General in Vietnam under cover of a letter dated 12 December 1997, was marked so as to indicate that Mr Ly wanted to visit Australia "For tourism - holiday, sightseeing, recreational sport or study, visiting friends or relatives, etc." (Emphasis original). In answer to the further question, "How much money do you have for buying your travel tickets and maintaining yourself in Australia?", there appeared the answer "supported by cousin". In a submission accompanying the form, Law Partners specifically addressed the genuine intention criterion in cl 676.221(2)(c), referring, in this context, to the genuineness of the applicant's proposal to visit relatives in Australia. Having regard to the material before the delegate, it is virtually inconceivable that the delegate did not appreciate that Mr Ly's stated reason in coming to Australia was to visit his cousin, Dr Duong (and, presumably, Dr Duong's parents too). I reject the submission that the delegate's failure to mention that fact in the notification given under s 66(2)(a) shows a failure on the delegate's part to identify that reason. 19 The nature of the notification is to be borne in mind. If a visa application is refused because an applicant does not satisfy a criterion for a visa, the notification that is required by s 66(2)(a) is to specify that criterion. The notification sent by the delegate made it clear that the applicant had failed to satisfy him of the criterion in cl 676.221(2)(c). The notification presupposes that the applicant has stated his reasons for wishing to come to Australia and that the delegate and the applicant know what those reasons are. There was, in this case, no requirement for written reasons (ss 66(2)(c) and 66(3)), or for any statement of the material findings of fact, etcetera, on which the decision depended. 20 Nor do I accept that the delegate directed his attention to the wrong question. The delegate specifically referred in the notification to the relevant criterion and went on to hold that he was not satisfied, on the basis of the material and information supplied by or on behalf of the applicant, that the applicant "intend[s] a genuine visit to Australia". (Nothing turns, I think, on any variation in wording between the terms of this holding and of cl 676.221(2)(c).) 21 If any error is shown, it is in the delegate's explanation of why it was that Mr Ly failed to satisfy the criterion. The delegate explained that he considered that (1) Mr Ly's employment as a hairdresser was "not strong employment commitments [sic] that would support the likelihood of your return to Vietnam"; (2) no "significant weight" was to be given to the claim that Mr Ly would "eventually start [his] own business" because of the delegate's lack of satisfaction that the applicant had the funds to do so; (3) bearing in mind the applicant's unmarried status, the fact that he had a mother and siblings in Vietnam was "not strong family commitments that would support the likelihood of [Mr Ly's] return"; and (4) "[e]xperience have shown that families are often separated for several years and once permanent resident visa is obtained in Australia, the family is then sponsored for migration under the family reunion class" [sic]. 22 Counsel for the applicant submitted that, in this explanation, the delegate was wrongly addressing whether Mr Ly's employment and family circumstances in Vietnam were so strong as to make it unlikely that Mr Ly would remain in Australia when any authorised period of stay had expired. That, he submitted, was not the question raised by cl 676.211(2)(c) of Schedule 2 of the Regulations. I accept that cl 676.211(2)(c) raised for the delegate's consideration whether the delegate is satisfied at the time of the decision that the expressed intention of the applicant only to visit Australia is genuine. I do not, however, accept the balance of the applicant's submissions. According to counsel for the applicant, the question raised by cl 676.211(2)(c) concerned the delegate's satisfaction as to the applicant's state of mind at the time the decision was made, and there was, therefore, no occasion for the delegate to consider the applicant's likely future conduct. A number of considerations lead me to reject that submission. 23 First, evidence that an applicant for a tourist visa is likely to return to his or her own country at the conclusion of a proposed visit to Australia may tend to confirm that an applicant's "expressed intention only to visit Australia" is in fact genuine. That is, it seems to me, the way in which the applicant himself invited the delegate to consider his case. (That is not to say that similar considerations are not relevant at other stages of the delegate's inquiry: cf cl 4011 of Schedule 4 of the Regulations.) 24 Secondly, as we have seen, in addressing the genuine intention criterion in cl 676.221(2)(c), Law Partners themselves relied on the following factors as supporting their submission that the delegate should be satisfied that the applicant's expressed intention was genuine: (1) Mr Ly's present employment and "lucrative" prospects; (2) his numerous family members in Vietnam; (3) his good character, conduct and credibility; (4) the absence of special adverse circumstances in Vietnam; (5) the genuineness of the proposed visit to relatives in Australia; (6) Mr Ly's clear record in relation to migration matters; and (7) Dr Duong's clear record in relation to migration matters. The delegate's explanation as to his lack of satisfaction as to the cl 676.221(2)(c) criterion was a direct response to the case that Law Partners put on the applicant's behalf. 25 Thirdly, the terms of the notification sent by the delegate make it clear that the delegate appreciated the nature of the relevant criterion and the need to consider whether he was relevantly satisfied at the time the decision was made. As the respondent's counsel pointed out in written submissions, "[a]ll the references in the record to the applicant's intention were references to the applicant's current, not future, intention". 26 Fourthly, I reject the applicant's submission that the terms of the notification show that the decision was controlled by an assumption that Mr Ly's real purpose in visiting Australia was to gain permanent resident status, with the further aim of bringing to Australia from Vietnam the balance of his family in due course. I accept the respondent's submission that, when the terms of the notification are examined, the "experience" to which the delegate referred was treated by the delegate as no more than supportive of his evaluation of the submission made by Law Partners that the fact that the applicant had family members in Vietnam supported his case that he intended only to visit Australia. (The applicant's further submission that the delegate's decision was vitiated by reliance on that administrative experience because the experience was an irrelevant consideration that ought not to have been taken into account founders on s 476(1)(d) and (3)(d) of the Act.) 27 Finally, the nature of the notification is to be again considered. There was, as already noted, no requirement for written reasons. If (as the authorities establish) it would be wrong to scrutinise overzealously the language of a statement of reasons given by a decision-maker pursuant to some statutory provision like s 420 of the Act, then it would also be wrong so to scrutinise a notification given under s 66(2)(a) of the Act: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291 per Kirby J. 28 I reject the applicant's submission that the delegate erred in his interpretation or application of cl 676.221(2)(c) of Schedule 4 of the Regulations.

postscript 29 The applicant submitted (and the respondent did not contest) that the visa application made by him was a valid application. 30 Section 46 of the Act relevantly provides that an application for a visa is a valid application if and only if it is for a visa of a class specified in the application and is made in the way required by s 45(2). Section 45(2) provides that the regulations may prescribe the way for making an application in specified circumstances or for a visa of a specified class. Regulation 2.07(3) provides that an applicant must complete an approved form in accordance with any directions it. Form 48R is apparently the relevant approved form: cf r 1.18(a). Subject to s 25C of the Acts Interpretation Act 1901 (Cth), an application that is not completed in accordance with the directions in the approved form has not been made in the way prescribed by the regulations and is not valid. 31 Mr Ly did not complete (by signing) the declaration at paragraph 29 of Form 48R as directed on page 1. Paragraph 29 read as follows: Before you sign the following declaration, you must read the Conditions for a visitor to Australia on page 2. Declaration · I declare that the information on this form is complete and correct. · My intention to visit Australia is genuine, and I will abide by the conditions of the visa. · I have adequate funds to meet all costs associated with my visit to and from Australia for myself and all those included in this application. · I have declared all relevant details about my health and character. · I have read and understood the conditions for a visitor to Australia, and I am willing and able to abide by those conditions. Signature of applicant

Day/Month/Year Date No party directed argument to the effect of that omission. 32 The possible consequences of a failure to complete an approved form in accordance with the directions contained in it have recently been considered by the Full Court of this Court (Merkel, Emmett and Finkelstein JJ) in Minister for Immigration & Multicultural Affairs v A [1999] FCA 1679. There is room in this context, it seems, for the application of s 25C of the Acts Interpretation Act and the notion of substantial compliance: see pars 43-44, and 47 per Merkel J and par 118 per Finkelstein J. Perhaps, when the application (including Law Partners' submission) is considered as a whole, there may in fact have been substantial compliance with the directions on the Form 48R: contrast Re LA (1993) 41 FCR 151, 158-160. I express no definitive view. Given that the Full Court did not deliver its reasons for judgment until 3 December 1999 (being a date well after this case was heard) there has been no opportunity for the parties to consider their respective positions in light of those reasons. If the parties wish to make further submissions concerning the validity of the visa application sent on the applicant's behalf to the Australian Consulate General in Ho Chi Minh City in December 1997, they should be permitted to do so. 33 Subject to any further submissions the parties might wish to make on this last-mentioned matter, I would dismiss the application for the reasons given. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate: Dated: 12 January 2000 Counsel for the Applicant: Mr B Quinn

Solicitor for the Respondent: Australian Government Solicitor