McDade v Minister for Immigration & Multicultural Affairs

Background circumstances 3 The Tribunal's second decision sets out the general background circumstances and history of the matter from which the following is generally taken. 4 The applicant was born in the United Kingdom on 8 March 1958 and is a British citizen. The applicant came to Australia with his wife and children (the second to fourth applicants) as migrants with a Class 105 Concessional (Family) visa on 15 July 1991. His wife and children continue to reside in Australia with him, as do other members of his family. 5 On 1 September 1994, due to amendments to the Act and the Migration Regulations, the applicant became the holder of a Transitional (Permanent) visa. 6 On 19 September 1994, the applicant was served with a "Notice of Intention to Cancel" his visa ("the First Notice") by the Department of Immigration and Multicultural Affairs ("the Department") on the basis that his application to migrate to Australia contained false and misleading information. The applicant responded to this First Notice by filing a "Notification of Incorrect Answers' pursuant to s 105 of the Act. 7 On 28 February 1997, the applicant was issued with another "Notice of Intention" to cancel his visa ("the Second Notice"). The applicant responded to the Notice under protest in writing in March 1997. 8 On 10 June 1997 the applicant was arrested by the Australian police in relation to charges of fraud and theft allegedly committed by him in the United Kingdom before migrating to Australia. He is subject to separate extradition proceedings regarding those matters. 9 On 16 December 1997 a delegate of the respondent cancelled the applicant's Transitional (Permanent) visa, referring to ss 101, 103, 104, 105, 107 and 109 of the Act. He was notified of the decision on that day. 10 On 24 December 1997 the applicant applied to the Tribunal for a review of the decision made by the delegate to cancel his Transitional (Permanent) visa. 11 The Tribunal affirmed the decision to cancel the applicant's Transitional (Permanent) visa on 9 October 1988 ("the Tribunal's first decision"). This decision was appealed to the Federal Court of Australia. By consent, the matter was remitted back to the Tribunal by the Federal Court on 16 December 1998 "for consideration which has regard, inter alia, to the application of the Teoh decision (Teoh v Minister for Immigration & Multicultural Affairs (1995) 183 CLR 273) in respect of the Convention on the Rights of the Child". 12 The result of the Tribunal's second decision was that it affirmed the decision under review to cancel the Transitional (Permanent) visa of the applicant.

Notices of Intention 13 The facts relating to the issue by the Department of the two Notices of Intention are as follows: 14 The First Notice asserted that the applicant may not have complied with ss 101, 103 and 104 of the Act. Section 101 required visa applications to be correct. Section 103 stated that bogus documents were not to be given. Section 104 provided that an applicant must notify the Department of any change of circumstances which may contradict information given on an application form and which occurs prior to immigration clearance. 15 In the First Notice it was stated that non-compliance with ss 101 and 103 may have occurred in documents submitted by the applicant on 20 January 1989 in that incorrect answers were given in regard to the applicant's employment history on the following matters: · omission of reference to prior employment with the Metropolitan police between 8 October 1979 and 28 September 1980. · failure to include reference to full time employment at Tingles Night Club from 27 May 1981 to 2 November 1981. · non disclosure of employment with Honeywell Information Systems. · incorrect information in an employment testimonial accepted as such by the applicant at interview, but with a denial it was a forgery. · description of employment with the Central Regional Council between September 1976 and October 1978 in the position of senior computer operator where the position was that of a computer operator - the applicant agreeing at interview the testimonial was a forgery. · a claim of employment as an analyst/programmer with Sovereign Computer Services from July 1984 to 24 October 1989 which was incorrect in that the applicant had worked full-time at Bladon Lines Travel Limited from 3 July 1989. 16 The notice left undetermined the question whether a testimonial from a Mr Corrigan said to be of Sovereign Computer Services dated 24 October 1989 was a forgery. The notice stated that the applicant's qualifications and experience in the computer industry were pivotal in the assessment of his and his family's eligibility for migration, so that all the information which he gave in relation to it was material to the outcome of the application. 17 The First Notice also asserted a failure to comply with s 104 in that after the applicant applied for migration on 20 January 1989 he assumed a false name and attained a live-in position at Bladon Lines Travel Limited commencing on 3 July 1989. The non-compliances with s 104 asserted were: · that he did not advise the Australian High Commission he had effectively changed his name, · or that he had changed his residential address, · or that he has ceased his claimed employment with Sovereign Computer Services. 18 The First Notice gave to the applicant an opportunity to comment and to provide a written answer within fourteen days, that is, by close of business on 4 October 1994. He was advised that if he did not respond by that date a decision on whether to cancel his visa would be made using information already held by the Department. He was further informed that if he did not intend to provide a written response within fourteen days to advise the office in writing. 19 By the due date the applicant forwarded to the Department his responses on the form appropriate pursuant to s 105 of the Act. In response to question 12 asking for details of incorrect information and question 13 asking why incorrect information was provided, the applicant referred to his response headed "Notice of Intention to Cancel" which was attached. In item 16 he declared that the information on or with the form was true and correct. He then appended his signature. He did not complete the provision for insertion of a date which then followed. 20 On 11 October 1994, the Manager of Investigations and Compliance of the Department wrote to the solicitors for the applicant acknowledging that the applicant had responded to the First Notice within the period of fourteen days but stated that his response was "not properly signed and dated". It was returned to him on 5 October 1994 for attention to those matters with a request that it be returned by 10 October 1994. It was said that this was not an extension of the statutory time period for response but a request for correct signing and dating "of a response already received by this Department". The letter acknowledged there was no provision for extension of time in respect of notices served under s 107(1) and further advised that if the applicant wished his response "to be regarded as having been received within the statutory period" he must return his original response intact and altered only by correct signing and dating. Consideration of whether the applicant had complied with s 101 of the Act was deferred until 17 October 1994 on the basis that no further undertakings were given. 21 In a response dated 20 October 1994 the solicitors for the applicant advised the Department that they differed with the view there was no power to extend time under subs 107(1); they disagreed with the view that the applicant must return his response intact and altered by correct signing and dating; and that they submitted the response should not be considered at all in any manner to make a decision in the matter and they were surprised that a photocopy of it had been retained. The solicitors requested the Department to inform them immediately whether the applicant should respond to the First Notice within any reasonable time granted. No response was received to that inquiry. 22 The Second Notice was issued to the applicant on 28 February 1997 following a review of the Department's file in relation to him. 23 In a letter dated 28 February 1997 to the applicant which accompanied the Second Notice it was stated: "You provided an unsigned response to [the first] notice which was returned for your signature on 05 October 1994. Although the Department requested that you return the signed response by 10 October 1994, it has not been received to date." The letter did not state nor does the evidence disclose the manner in which it was said that the first response had been "unsigned". As previously recounted, the first response had been signed by the applicant in relation to the declaration appearing as item 16. 24 The particulars of the alleged false and misleading information and the facts upon which the Second Notice was based were the same as in the First Notice. The Second Notice stated that subss 20(1)(c)(i) and (ii) of the Act, as in operation before 1 September 1994, applied to the applicant because of incorrect answers in relation to the applicant's employment history. The paragraphs concerned related respectively to production of a bogus document and to a statement that was false or misleading in a material particular. The applicant was advised in the Second Notice that the visas which he held were subject to cancellation under s 109 of the Act if s 20 as in force prior to 1 September 1994 was applicable to him: s 115(3) of the Act and s 41 of the Migration Reform Act 1992. 25 The alleged incorrect answers were identified in the following terms: "· You failed to disclose periods of full-time employment with the Metropolitan Police, Tingles Nightclub and Honeywell Information Systems; · the stated periods of your employment with Distillers Co Ltd, Central Regional Council and Sovereign Computer Services are incorrect; · at interview on 10 May 1994 you agreed that you provided a forged testimonial from the Central Regional Council, in which you misrepresent your period of employment and your status with that organisation; · there is evidence before the Department that the testimonial you provided from Sovereign Computer Systems is false and that you were in fact never employed by this company." 26 On or about 21 March 1997 the applicant lodged "under protest" with the respondent a response. Subsequently, he lodged a submission dated 14 April 1997.

Legislative provisions 27 The power of the Minister to cancel a visa arises pursuant to s 109 of the Act which reads: "109. (1) The Minister, after: (a) deciding under section 108 that there was non-compliance by the holder of a visa; and (b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and (c) having regard to any prescribed circumstances; may cancel the visa. (2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled." 28 The prescribed circumstances for the cancellation of the applicant's visa pursuant to s 109 of the Act are referred to in reg 2.41of the Migration Regulations which provides: "2.41. For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed: (a) the correct information; (b) the content of the genuine document (if any); (c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document; (d) the circumstances in which the non-compliance occurred; (e) the present circumstances of the visa holder; (f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act; (g) any other instances of non-compliance by the visa holder known to the Minister; (h) the time that has elapsed since the non-compliance; (i) any breaches of the law since the non-compliance and the seriousness of those breaches; (j) any contribution made by the holder to the community."

AMENDED APPLICATION for ORDER of REVIEW under PART 8 of the ACT

Ground One: Failure to decide on first notice: s 476(1), s 476(1)(e)

Submissions of applicant 29 The first ground contended for in support of the application for review is that the Tribunal erred in law in its second decision because it failed to decide the cancellation of the applicant's visa was invalid or unlawful. This ground is based on the contention that the decision to cancel should have been found to have been invalid or unlawful as a second notice under s 107 of the Act may not be issued save and except in the circumstances set out in s 112 of the Act. 30 Section 107 of the Act relevantly provides: "107. (1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice: (a) giving particulars of the possible non-compliance; and (b) stating that, within 14 days, the holder may give the Minister a written response to the notice that: (i) if the holder disputes that there was non-compliance: (A) shows that there was compliance; and (B) in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance - shows cause why the visa should not be cancelled; or (ii) if the holder accepts that there was non-compliance: (A) give reasons for the non-compliance; and (B) shows cause why the visa should not be cancelled; and (c) stating that the Minister will consider cancelling the visa: (i) if the holder gives the Minister oral or written notice, within the 14 days mentioned in paragraph (b), that he or she will not give a written response - when that notice is given; or (ii) if the holder gives the Minister a written response within those 14 days - when that response is given; or (iii) in any other case - at the end of those 14 days; and (d) setting out the effect of sections 108, 109, 111 and 112; and (e) informing the holder that the holder's obligations under section 104 and 105 are not affected by the notice under this section; (2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement." 31 Section 112 provides: "112 (1) A notice under section 107 to a person because of an instance of possible non-compliance does not prevent another notice under that section to that person because of another instance of possible non-compliance. (2) The non-cancellation of a visa under section 109 despite an instance of non-compliance does not prevent the cancellation, or steps for the cancellation, of the visa because of another instance on non-compliance." 32 The contention is that the respondent was obliged to conduct himself according to ss 108 and 109 of the Act in relation to the first notice. Section 108 requires: "108. The Minister is to: (a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and (b) decide whether there was non-compliance by the visa holder in the way described in the notice." 33 The principle contention here is that the occasion when a second notice may be issued is limited by the provisions of s 112. That is, there must be "another instance of possible non-compliance". It is contended that as there is not here another instance of alleged possible non-compliance there is no basis upon which a second notice could have been issued. The notice was therefore invalid and any cancellation based upon it likewise attracts invalidity. 34 The contention that s 112 should be read on the basis that it makes it clear a second notice under s 107 may not be issued on the basis of the same facts allegedly constituting non-compliance is founded on the contention that, as the applicant's liberty is at issue, the provision should be construed with scrupulous care and any ambiguity should be construed in his favour. 35 Furthermore, it is contended that if the respondent had acted on the First Notice and carried out his duties arising under ss 108 and 109, there would have been no need for the Second Notice to have been issued. 36 For the applicant it is further submitted that the effect of s 33(1) of the Acts Interpretation Act 1901 (Cth) in relation to s 107 is excluded by the terms of s 112 of the Act. Section 33(1) reads: "33 (1) Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires."

Respondent's contentions 37 The first contention of the respondent is that in the circumstances he had not exhausted his power under s 107 because the process under that section had miscarried. While the case for the respondent accepts that the applicant filed a written response, it is said that the return of that to the applicant for perfection and the statement by his solicitor that the copy of it should not be used has the consequence that the process pursuant to s 107 was not complete. While acknowledging that reg 1.18 of the Migration Regulations authorises the Minister to approve forms, the case for the respondent declines to assert that the written response had to be in a particular form. The essential point made in support of this first contention is that the response in whatever form it was, was not available to the respondent so that he could not be obliged to proceed pursuant to s 108. 38 In relation to s 112, the respondent's case contends that this section should not be viewed as a limitation. Rather it should be regarded as a section designed to ensure that a second notice is not confined to the grounds of the previous notice. It is submitted that had the legislature intended that s 112 was to read as a limitation it could have expressed it in terms similar to s 113 of the Act. 39 Furthermore, it is contended that s 112 does not exclude the presumption embodied in s 33(1) of the Acts Interpretation Act 1901 and the power to issue a notice under s 107 and the power to make a determination on that notice. Alternatively, it is submitted that s 112 would not exclude the operation of s 33(1) where the process under ss 107 and 108 has miscarried and there has been no consideration of the notice and no determination made.

Conclusions on ground one 40 My conclusions on ground one are as follows: (1) Section 112 has the effect of permitting a second notice under s 107 where there is "another instance" of possible non‑compliance. The existence of "another instance" of such possible non-compliance is the base on which s 112(2) operates when it provides non‑cancellation is no barrier to cancellation or steps towards cancellation of a visa. 41 Section 112(2) is to be read in relation to s 108 and s 109. Non-cancellation of a visa under s 109 may come about either because: (i) The Minister, having found a non‑compliance by a visa holder pursuant to s 108(b), exercises his discretion not to cancel, or (ii) the Minister finds there is no non‑compliance. 42 It would appear s 112(2) is not designed to operate in relation to (ii) because it applies "despite an instance of non‑compliance" which could not be satisfied if there was a finding of fact against the existence of the non‑compliance. 43 The words "another instance", on first reading, suggest a "different instance". The Shorter Oxford English Dictionary (Clarendon Press Oxford, 1993) p 83 defines "another" to include the meaning "a second, further, additional"; "a second in likeness, character, or attributes"; "a different (one)". But how different? In both time and in circumstance or only in time? Could the words encompass repeated circumstances or even the same circumstances? 44 I am of the view that s 112 is directed, as its language primarily suggests, to a second, further or additional instance of possible non-compliance. This is consistent with the Minister having an apparent duty pursuant to s 108(b) to decide whether there was a non-compliance as stated in a notice pursuant to s 107. It is consistent with s 112(2) not applying to a matter the subject of a notice pursuant to s 107 but not the subject of a decision pursuant to s 108(b). 45 (2) The next question is whether s 112, understood in the way referred to in (1), is to render invalid a notice issued under s 107 on the same facts and circumstances (or some of them) as a prior notice. 46 Section 33(1) of the Acts Interpretation Act 1901 supports a construction of s 107 as the source of power to be exercised from time to time as the occasion requires unless the Act indicates a contrary intention. In my view there are indications in subdivision C of Div 3 of the Act of such a contrary intention. They are: (a) In s 107(1): (i) the requirement in s 107(1)(c) stating that the Minister will consider cancelling the visa in the circumstances there referred to. (ii) the requirement in s 107(1)(d) that s 112 is among these, the effect of which is set out in the notice. (b) The requirement in par 108(b) that the Minister "…decide whether there was non-compliance by the visa holder in the way described in the notice". The notice itself specifies the relevant alleged non-compliances: s 107(1)(a). (c) The provisions of ss 110 and 111 and the use of the phrase in each "to avoid doubt", indicating a certain exactitude in the regime being established by ss107-109. (d) The implication of s 112(1) that a second notice under s 107 is prevented where the second notice is not related to "another instance of possible non-compliance;" that is, a second notice cannot relate to matters already the subject of a notice still under consideration. 47 The cumulative effect of these provisions is to establish a system of such character that it negates any intention that the power in s 107 is able to be exercised from time to time without due completion of the system thus established. Accordingly, I consider the exercise of power in the issue of the Second Notice under s 107 on the same facts and circumstances would be an invalid exercise of power if the Minister has not resolved the prior notice pursuant to s 108(b) cf Scarfe v Federal Commissioner of Taxation (1920) 28 CLR 271 at 275; Vella v Grey (1985) 61 ALR 210 at 213. 48 (3) Then there is the factual question whether the Second Notice was in this case in the same terms as the First Notice. The Second Notice relies on narrower grounds than the First Notice. However, the grounds relied on in the Second Notice are all encompassed within the First Notice. 49 (4) There is a further factual issue: was the First Notice ever perfected? 50 The steps involved in relation to the First Notice were as follows: (a) The First Notice was issued 19 September 1994. (b) The applicant's response was received on 4 October 1994. (c) On 20 October 1994 the applicant's solicitors submitted to the Department the response should not be considered at all in any manner. They requested they be informed immediately whether a response was required. No request for a response was received. 51 The effect of this was to leave the respondent in the position where he had issued a notice but had received no response. That possible position was expressly recognised in the notice as one in which the respondent would nevertheless proceed to decide the existence of the non-compliances on information known to the Department. It is also recognised by s 108(a) which operates in relation to "any response" - that is, if there is one. Furthermore, it is recognised by s 107(1)(b) in its use of the word "may" and by the express provisions of s 107(1)(c)(i) and (iii), each of which encompass the Minister proceeding in the absence of a response. 52 I therefore consider there is no question whether the First Notice was "perfected": it was perfected upon issue and the Minister's duty to resolve it thereupon arose to resolve it pursuant to s 108. 53 (5) It follows that I consider the First Notice not having been considered pursuant to s 108, the power in the Minister to exercise the power in s 107 in respect of the same facts and circumstances (or some of them) referred to in the First Notice did not arise. The Second Notice was therefore invalidly issued. 54 I therefore conclude the applicant has established the first ground of review. However, as that view is founded on an issue of statutory construction I proceed to state my views on the other grounds of review in support of both applications. Ground Two: was not proceeded with.

Ground Three: Incorrect interpretation or application of former s 20 of the Act: s 476(1)(e) 55 This ground is particularised as: "(a) The Tribunal incorrectly interpreted the meaning of the expression 'false in a material particular'. (b) The Tribunal erred by incorrectly deciding the conduct of the first applicant amounted to the provision of a statement that was false or misleading in a material particular".

Submissions for applicant 56 Section 20 of the Act as in operation before 1 September 1994, so far as it is relevant, reads as follows: "20 (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: (j) when, or before, a visa was granted or issued on any occasion 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;" 57 In its second decision the Tribunal said in relation to this section: "The facts relating to the misleading information have been set out in the Tribunals earlier decision (as corrected by the applicant) and referred to by the applicant himself in his various submissions and do not need to be repeated at length again here." 58 In its first decision the Tribunal found that the applicant gave false and misleading information on his original application. It found that false statements by the applicant about his employment details before coming to Australia must be regarded as false statements in a material particular where such statements would have been taken into account in the determination of his application. In reaching this view the Tribunal relied upon a statement by the Full Federal Court in Minister for Immigration, Local Government & Ethnic Affairs v Delacruz (1992) 34 FCR 348. There it was said (at 352) with reference to the words "false in a material particular" that the term "material" requires no more and no less than that the false particular must be of moment or of significance, not merely trivial or inconsequential. The contention is that in its second decision the Tribunal did not properly apply that test and so erred in its interpretation or application of the law. 59 The submission is that the application of the test in Delacruz requires a decision‑maker to ascertain precisely what statements have been false and then determine whether the falsity is in a material particular. The Tribunal it is said, failed to do this in its second decision. It is said this came about because the Tribunal did not clearly set out in its second decision which facts it found to be false in a material particular but rather relied on the statement in the Tribunal's first decision. That reliance is said to be imprecise and unclear so that it is impossible to tell which facts the Tribunal has found and is relying on. It is submitted that in the absence of clear findings of fact in the second decision of which statements were false in a material particular, the Tribunal incorrectly interpreted and applied the law with respect to the former s 20 of the Act.

Respondent's submissions 60 The respondent's case firstly points out that the ground is not put in terms of the particulars. 61 In relation to the ground as put, it is accepted for the respondent that the parenthetical words in the primary finding of the Tribunal on this matter in its second decision ("[as corrected by the applicant]") introduced an ambiguity. It is also accepted the findings of fact were not therefore complete in the reasons of the second decision and to identify the falsities it was necessary to go to the earlier reasons. However, it is submitted it was not contentious that answers given by the applicant with regard to his employment were false and that he had failed to declare three periods of employment, incorrectly stated periods of employment with other employers, and supported a claim with a document he has produced himself.

Conclusions on ground three 62 In my opinion the reliance in the reasoning in the second decision of the Tribunal on the findings in the first decision did not have the consequence that the Tribunal failed to comply with s 20(1). The findings in the first decision are not contended as having failed to satisfy the requirements of that section. The reference to correction of those findings by the applicant did not have the effect of itself bringing about an absence of findings complying with the section. In my view this ground is not made out when the incorporated reasons are examined.

Ground Four: Incorrect interpretation of the applicable law to power of visa cancellation: s 476(1)(e)

Tribunal's reasons 63 Under a heading "The Discretion to Cancel a Visa" in the course of its reasons in the second decision, the Tribunal turned to consider the decision in Teoh. There the High Court had considered Article 3 of the United Nations Convention on the Rights of the Child ("UNCROC") and at 209 per Mason CJ and Deane J said that that UNCROC makes the best interest of the child a primary consideration, not the primary consideration. 64 Turning to the applicant's child Glenn, the Tribunal concluded: "Therefore, the Tribunal after considering all of the evidence and material in this matter, having regard to the comments of the Court in Teoh's case (above) and URCRC finds, on balance, that the interests of the child Glenn would not be adversely affected should he return to the place of his birth, Britain, with his family. Indeed, these and the other considerations do not outweigh the seriousness of the grounds for cancellation of the Applicant's visa in the circumstances where he appears to have instituted a course of conduct to circumvent Australia's migration legislation. Although the Tribunal notes that the Applicant and his family could experience some hardship if returned to the United Kingdom, his actions should not be allowed to result in a benefit to him except in what might be termed " the most compelling circumstances". The Tribunal finds on balance, that such "compelling circumstances" including a consideration of the children's interests, are not present in this case and the decision to cancel the Applicant's visa should be affirmed."

Submissions for Applicant 65 It is contended in the fourth ground that the Tribunal erred in law in applying a test that the visa of the applicant should be cancelled unless there were "the most compelling circumstances". It is said that in applying a "most compelling circumstances" test, the Tribunal applied a test not contained in s 109 of the Act or in reg 2.41. It therefore should be seen as placing an unwarranted fetter upon its discretion to decide whether or not to cancel the applicant's visa. Furthermore it thereby placed an onus on the applicant to prove there were "most compelling circumstances" when such an onus was not warranted by the Act or Regulations. Accordingly it is submitted the Tribunal's second decision involved an incorrect interpretation of the applicable law.

Respondent's submissions 66 For the respondent it is contended that the comment complained of in this ground was not expressed by the Tribunal as a "test" of whether the visa should be cancelled. It is said the comment regarding "compelling circumstances" is made in reference to the circumstances of the particular case where the applicant would be allowed to benefit from his deception if the discretion were exercised in his favour. It is submitted that read fairly, the comment in the context of the whole of the reasons does not reveal an error of law.

Conclusions on ground four 67 I do not consider that a fair reading of the passage of the reasons of the Tribunal in its second decision considered in its context and in its terms establishes that the Tribunal incorrectly interpreted the law. It took into account as a relevant circumstance the interest of the child as a primary consideration. It balanced that against the other circumstances including what it characterised as the course of conduct embarked upon by the applicant to circumvent Australian migration legislation. It was entitled to conclude that the latter circumstances outweighed the circumstances pertaining to the child. That is what it was doing in referring to "compelling circumstances": namely, it was saying that the weight of the circumstances of the applicant's conduct were such that they would require more than equally weighty circumstances to tip the balance in the applicant's favour. The Tribunal was entitled to conclude the circumstances relating to the child were not of that weight. In my view the passage referred to in the reasons of the Tribunal does not reveal an error of law.

Ground Five: Failure to observe procedures: s 476(1)(a)

Applicant's submissions 68 The Tribunal was required by former s 348 of the Act to review the decision to cancel the applicant's visa. In making its decision the Tribunal was subject to the provisions of the former s 368(1) which read: "368 (1) Where the Tribunal makes its decision on a review, the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b) prepare a written statement that: (a) sets out the decision of the Tribunal on the review; (b) sets out the reasons for the decision; (c) sets out the findings on any material questions of fact; and (d) refers to the evidence of any other material on which the findings of fact were based." The paragraphs referred to have no relevant qualifying effect. 69 It is submitted that the Tribunal failed to consider a particular submission made to it on behalf of the applicant and accordingly did not set out the reasons for its decision or properly exercise its jurisdiction to make the decision. 70 The submission which was said to have been made was that the respondent issued the Second Notice and made the decision to cancel the visa, including the choice of timing of that decision, for an improper purpose namely, to aid extradition proceedings. 71 The submission that the Tribunal did not consider the submission is qualified by the words "other than perhaps as mentioned in ground 7 below". That is a reference to a statement by the Tribunal that it notes the applicant's "submissions regarding the Department not having a legal right to cancel his visa and rejects those submissions, given the legislative enactments in the area". 72 It is contended for the applicant that the failure to provide adequate reasons attracts the jurisdiction for review pursuant to s 476(1)(a) in that the requirement to give reasons provided for in s 368(1)(b) is a "procedure" to which s 476(1)(a) applies. This submission is supported by reference to Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24 at 57. See also s 476(1)(b).

Respondent's submissions 73 For the respondent it is submitted that the applicant's submission is not relevant to the function which the Tribunal was required to perform in reaching the second decision. It is said that the task of the Tribunal, as correctly apprehended in its reasons, was to determine whether the decision that the applicant's visa be cancelled was the correct and preferable one to make on the material then before the Tribunal: Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577. 74 It is further submitted for the respondent that it was therefore neither necessary nor helpful to decide the submission that the issue of the notice and the decision on it by the delegate were tainted by improper purpose. That submission is said to raise no question of fact material to whether the applicant was a person to whom s 20 (repealed) applied and whether grounds existed for the cancellation of the visa and, if so, whether the decision to cancel the visa was the correct or preferable decision in the circumstances. 75 Furthermore, it is submitted this is not the same issue raised in Paramananthan. There the failure to comply with s 430(1)(c) was held by the Full Court to be a failure to review the decision of the delegate on the merits by failing to make findings on the material questions of fact central to the case raised on the material and evidence before the Tribunal: cf Thevendram v Minister for Immigration & Multicultural Affairs [1999] FCA 182 at par 37. A failure to expressly determine a submission of the kind in question here does not amount to a failure to review the decision of the delegate on the merits, it is submitted. 76 In short it is submitted that for the Tribunal not to have dealt with the improper purpose submission does not compromise the function of the Tribunal.

Conclusions on ground five 77 In my view the submissions for the respondent on this ground are correct. In Paramananthan the error by the Tribunal was a failure to make factual findings in respect of all the issues on which its decision turned. The question of motive or improper purpose was not a material fact upon which the second occasion of the Tribunal turned. Even if the duty to give reasons in accordance with s 368(1)(b) is correctly to be seen as a "procedure" attracting jurisdiction under s 476(1)(a), there is no relevant procedural failure in the absence of any reference to the contention of improper purpose in relation to which the jurisdiction in s 476(1)(a) can arise. As to whether the requirements to give reasons in s 430(1) (and by analogy s 368) is a "procedure" within s 476(1)(a), Carr J said in Tharairasa v Minister for Immigration & Multicultural Affairs [2000] FCA 520 at par 38: "The law on this point is, at the moment, in a somewhat fluid state. Yusuf is a Full Court decision of this Court which stands as authority for the proposition that failure to comply with s 430(1)(c) of the Act gives rise to error of law reviewable, under s 476(1)(a). There is obiter dictum in Xu v Minister for Immigration & Multicultural Affairs [1999] FCA 1741 from Whitlam and Gyles JJ (R D Nicholson J expressly disassociating himself on the basis that it was not necessary to decide the matter for the resolution of the appeal) to the contrary. Burchett J had to deal with this conflict of opinion on 4 February 2000, in Montes-Granados v Minister for Immigration & Multicultural Affairs [2000] FCA 60. I agree, respectfully, with the views expressed by his Honour at paras 13 to 16 in his reasons for judgment in that case which led him to regard himself as being bound by the decision in Yusuf. On the facts in Yusuf, Burchett J dismissed the application, although, as I have said, his Honour held that a failure to comply with s 430(1) did give rise to reviewable error. On 11 February 2000 the High Court of Australia granted the Minister special leave to appeal in the Yusuf matter. A perusal of the transcript of the hearing of the special leave application shows that this issue is raised squarely in that appeal. On 28 February 2000 a specially-constituted Full Court of five judges of this Court heard an appeal on the same point in the matter of Singh v Minister for Immigration & Multicultural Affairs [Application No N980 of 1999]. The Full Court reserved judgment. Ground Six: The Tribunal erred in its interpretation of the law to be applied pursuant to the decision of Teoh v Minister for Immigration & Ethnic Affairs and Article 3 of the United Nations Convention on the Rights of the Child: s 476(1)(e)

Applicants' submissions 78 As has been seen, the application was remitted to the Tribunal by the Federal Court "for reconsideration which has regard, inter alia, to the application of the Teoh decision in respect of the Convention on the Rights of the Child." Article 3(1) of the UNCROC as referred to in Teoh required the Tribunal to have regard to the best interests of the fourth applicant, a child, as a primary consideration. The Tribunal it has said was obliged to give full and proper consideration to the child's best interests: Vaitaiki v Minister for Immigration & Ethnic Affairs (1998) 150 ALR 608 at 619 and 631. It is submitted the Tribunal was therefore required to ascertain what the best interests of the child were and then take that into account as a primary consideration in making its decision. 79 It is contended that what the Tribunal did was to refer to the circumstances of the fourth applicant but did not decide whether the best interests of the child would be served in cancelling or refusing to cancel the applicant's visa nor did it take that into account as a primary consideration in making the decision.

Respondent's submissions 80 For the respondent it is submitted there was no error in the way in which the Tribunal approached this matter. Expert evidence regarding the child and the effect of a relocation to England was presented and considered by the Tribunal. It is said that the reasons for decision show that proper consideration was given to the child's interest.

Conclusion on ground six 81 In relation to the fourth applicant the Tribunal commenced by considering a report of Dr Watts. It took into account Dr Watts' opinion that the fourth applicant would not suffer a severe readjustment in returning to the United Kingdom; that he was of an age where he could cope better than when a little older; and that he had a certain degree of interest in going to England. It noted Glenn was born in England; that the second applicant had a father and siblings there; and that the child's parents had previously lived and worked in the United Kingdom. It also noted a similarity of culture between Australia and the United Kingdom. In the light of this it is not open to conclude the Tribunal in its second decision erred in its interpretation of the law in giving consideration to the interests of the child as a primary consideration. It did give full and proper consideration to those interests.

Ground Seven: Failure to observe procedures namely not setting out reasons for rejecting applicant's submission that second notice invalid: s 476(1)(a) 82 This ground returns to the issue raised by the first ground but approaches it in a different way.

Applicants' submissions 83 It is said that s 368(1)(b) of the Act required the Tribunal to set out its reasons for decision. Further it is said a failure to comply with s 368 is a ground for judicial review of the decision under s 476(1)(a) of the Act on the basis that the requirements of it are "procedures" required by the Act to be observed in connection with the making of the decision which, as here alleged, have not been observed: Minister for Immigration & Multicultural Affairs v Hughes [1999] FCA 325 (31 March 1999), Full Court at [29] per Merkel J with Carr J agreeing; Minister for Immigration & Multicultural Affair v Yusuf [1999] FCA 1681 (2 December 1999), Full Court; Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402 at 416 per Sackville J. 84 This ground is pressed because the reasons of the Tribunal noted "the applicant's submissions regarding the Department not having a legal right to cancel his visa and rejects those submissions, given the legislative enactments in the area". It is submitted these were not adequate reasons to provide the applicant with an understanding of why the submission went against him and do not enable the question of legal error to be readily perceived. It was a statement only of bare conclusion.

Respondent's submissions 85 The respondent submits that the applicant gives to s 368 an operation which it does not bear. Each of the cases cited by the applicant was concerned with a failure to make findings on questions of fact material to the decision under review. The basis of these decisions is that the failure to make such findings is a failure to review the decision on the merits: Minister for Immigration & Multicultural Affairs v Yusuf [1999] FCA 1681 at 20‑22; see also Thevendram v Minister for Immigration & Multicultural Affairs [1999] FCA 182 at par 37. In this case, the Tribunal was not required by s 368 to deal with the challenge to the original decision in order to conduct a review on the merits.

Conclusions on ground seven 86 I do not accept the submission for the respondent that the submission of invalidity in the Second Notice was a matter the Tribunal in its second decision was not required to deal with. It was a relevant factor to the second decision. The reasons of the Tribunal were unnecessarily brief but did state the reasons of the Tribunal on the point. That reason was that the legislative provisions supported the legal right to cancel the visa. The implication of that is that s 112 did not render the Second Notice invalid. I have given my reasons why I consider that view to be incorrect. However, I do not consider the Tribunal failed to give reasons in accordance with s 368(1)(b). 87 There is the further question whether the requirement for a procedure under s 376(1)(a) is satisfied by s 368(1)(b). As has been stated, that is a point presently under appeal and reserved by a Full Court in Singh v Minister for Immigration & Multicultural Affairs in relation to s 430.

Ground Eight: Failure to observe procedures in setting out reasons and findings on material questions of fact relating to misleading information: s 476(1)(a)

88 This ground refers back to the circumstances dealt with in ground three but approaches the matter in a different way.

Applicant's submissions 89 The submission here is that the statement of the Tribunal in relation to whether the applicant had contravened the former s 20 of the Act by providing misleading information, was ambiguous and/or incapable of proper understanding. It is therefore said the Tribunal failed to set out the findings on material questions of fact or the material on which the findings of fact were based, contrary to the requirements of subss 368(1)(c) and (d). It is inferred that consequently the Tribunal failed to set out its reasons for decision on that matter contrary to subs 368(1)(b).

Respondent's submissions 90 The statement by the Tribunal was made in the context of the decision being a reconsideration where the applicant had "little to add" to his written statements regarding the application to migrate, and where the facts were extensively set out in an earlier document available to the applicant and apparently adopted by the Tribunal on the reconsideration. In that earlier finding it is noted that the only matter in the Notice of Cancellation challenged by the applicant was his employment with Sovereign Computer Services, and that he has provided correct dates for employment with three employers which enable his employment history to be reconciled. 91 The reference to the findings set out in the earlier decision of the Tribunal, together with the findings, was therefore sufficient, it is submitted.

Conclusions on ground eight 92 I consider the reference by the Tribunal in its second decision to the findings on conduct misleading or deceptive in its first reasons satisfied the requirements of subss 386(b), (c) and (d). The reasons were stated by way of incorporation; they set out findings on material questions of fact; and they referred to the evidence or other material on which the findings were based.

APPLICATION UNDER S 39B OF THE JUDICIARY ACT 93 The second, third and fourth applicants make applications for the following orders: (i) A declaration that each of the second, third and fourth applicants is the holder of a Transitional (Permanent) visa. (ii) Further or alternatively, a declaration that the purported cancellation of the second, third and fourth applicants' visa was invalid and of no effect. (iii) Further or alternatively, an order quashing or setting aside the decision of the respondent by his delegate Mr Michael Cain made on 16 December 1997, to cancel the first applicant's visa, which decision had the purported effect of cancelling of the second, third and fourth applicants' visas. (iv) Further or alternatively, an order quashing or setting aside the decision of the Tribunal referred to herein, which decision purportedly had the effect of confirming the cancellation of the second, third and fourth applicants' visas.

Respondent's submissions 94 For the respondent, it is submitted that the Court does not have jurisdiction to make the orders sought. 95 In relation to the application for declarations in terms of orders (i) and (ii) the respondent relies upon subs 485(1) of the Act which reads: "485 (1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903." 96 It is submitted that this is not a case like Rani v Minister for Immigration & Multicultural Affairs (1997) 80 FCR 379 where declarations were sought as to the operation of s 140 of the Act and whether one of the applicants was an Australian citizen. There, those declarations did not depend upon whether a judicially-reviewable decision was liable to be set aside; see at p 39 per Sackville J. Here however it is submitted the sole grounds for relief by way of declaration is that decisions in relation to the applicant were made in excess of jurisdiction, involved an improper use of power or were made in breach of the requirements of natural justice (grounds with which this portion of the application is subsequently supported). As a result, it is submitted, the applicant is seeking review in this manner of the Tribunal's second decision and through it the reviewable decision of the delegate, other than in accordance with Part 8 of the Act. 97 In relation to the proposed orders (iii) and (iv) it is submitted that the Court does not have jurisdiction for the same reasons. In addition it is submitted the applicants do not seek relief under a statute or by way of a prerogative writ and the Court has no power to simply quash and set aside a decision. The relief sought is not known to the law. In particular, no remedy is provided under s 39B of the Judiciary Act 1903. 98 Finally, it is submitted that if the application succeeds in relation to the applicant in any event and ultimately the decision to cancel his visa is set aside, the visas of the other applicants will follow. Therefore, this is not a matter in which the Court needs to make a declaration or ought, in the exercise of its discretion, do so.

Applicant's submissions 99 The applicants submit that the second, third and fourth applicants are not precluded by s 485 of the Act from bringing this application as there has been no judicially-reviewable decision made in relation to them. For this they rely on the decision in Rani. It is submitted that the ratio of that decision is that jurisdiction under s 39B of the Judiciary Act 1903 is not precluded where no decision has been made in relation to a particular applicant. Essentially the submission is that the decision to cancel the first applicant's visa insofar as it has a consequential effect on the second to fourth applicants, is not an IRT reviewable decision because none of the second to fourth applicants can apply to review the decision. This is supported by reference to the need to give a narrow construction to ouster of jurisdiction provisions.

Conclusion on jurisdictional argument 100 In Rani at 391 Sackville J accepted that s 485(1) of the Act did not deprive the Court of jurisdiction under s 39B(1A) (c) because there had been no judicially-reviewable decision made in relation to the wife. He said the fact that the cancellation of the wife's visa was said to flow from the decision to cancel the husband's visa did not mean that the wife's proceedings were "in respect of [a] judicially-reviewable decision". In Rani the wife had sought a declaration pursuant to s 39B(1A)(c) of the Judiciary Act 1903 that she was the holder of a valid subclass 100 (spouse) visa. That is the same type of declaration sought as order (i) by the second, third and fourth applicants here. 101 Order (ii) sought by the same applicants is capable of being argued (as in Rani) by reference to s 140 alone and so not with reference to a judicially-reviewable decision. 102 Order (iii) relates to the decision of the respondent by his delegate. That decision is an IRT reviewable decision: s 346(1)(d) of the Act and reg 4.09(d). By application of s 475(2)(c) it is not a judicially‑reviewable decision. It would not be possible for the order sought to be made or argued without the Court thus dealing with a decision prohibited to it jurisdictionally. 103 Order (iv) is addressed to the decision of the Tribunal. It is a judicially‑reviewable decision. The ground of review is not capable of being dealt with except by reference to the judicially‑reviewable decision. The ground is "in respect of" such a decision and so can only arise under Part 8 of the Act: s 485(1). It is the terms of the proposed order which attract the jurisdictional prohibition and so distinguish this order from that in Rani. 104 Whether there is jurisdiction in this proceeding in respect of grounds (i) and (ii) is dependent on the manner in which those grounds would be pressed. In Rani the claim of both wife and the child were based on contentions concerning the operation of statutory provisions, namely s 140(1) of the Act and s 10 of the Australian Citizenship Act, so that it was open to Sackville J to conclude the wife's proceedings were not in respect of a judicially-reviewable decision and so not precluded from jurisdiction by s 485(1). 105 Accepting, in reliance upon Sackville J in Rani at 391, that the fact that cancellation of the visas of the second, third and fourth applicants may be said to flow from cancellation of the applicant's visas does not preclude jurisdiction, it is necessary nevertheless to examine on what grounds the second, third and fourth applicants seek to press for orders (i) and (ii). 106 Ground one was withdrawn. Ground two claims the respondent's delegate acted in excess of his jurisdiction on the bases set out in the first and fifth grounds above. The bases (which I take to be the particulars) set out in the first ground concern the effect of s 112 of the Act. These bases are not capable of argument except in respect of the IRT reviewable‑decision by the respondent's delegate. That is a decision covered by s 475(2) of the Act and is beyond jurisdiction: s 485(1). Here the second applicant is not seeking review of anything other than the respondent's delegate's decision in relation to the first applicant and that is in the realm of jurisdiction prohibited to this Court. 107 The bases (particulars) in the fifth ground refer to the improper purpose of aiding extradition proceedings. Those particulars also relate to the decision of the respondent's delegate to cancel the visa of the applicant. For the same reasons as set out in relation to the first ground, that decision is in the realm of prohibited jurisdiction to this Court. 108 Ground three in its terms claims the Tribunal's second decision was in excess of jurisdiction and so directly concerns the judicially-reviewable decision which is prohibited to the jurisdiction of this Court. 109 Ground four claims the decision of the respondent's delegate in purportedly cancelling the visa of the applicant involved an improper use of power or was an act in excess of jurisdiction in that the respondent, contrary to s 108 of the Act, purported to decide the applicant had provided incorrect information about his employment with KBS Computor Services when this was not particularised in the Second Notice. The ground is formulated in respect of the IRT-reviewable decision which is prohibited to the jurisdiction of this Court. 110 Ground five claims the decision of the respondent's delegate involved a denial of natural justice or procedural fairness. This ground is also formulated in respect of the IRT‑reviewable decision prohibited to jurisdiction. To enable its review by the second, third and fourth applicants on natural justice grounds would permit them a review not only precluded by s 485(1) but also by s 476(2)(a). 111 It follows that I consider the submissions for the respondent are correct in contending all of the grounds of relief under s 39B of the Judiciary Act, as proposed to be pressed, are beyond jurisdiction. CONCLUSION 112 For the above reasons I consider the applicant succeeds only on the first ground of the amended application for an order to review. I will hear counsel as to the appropriate form of orders. Whether there is jurisdiction in respect of grounds I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson.

Associate: Dated: 5 May 2000 Counsel for the Applicant: Mr M Ritter

Solicitor for the Respondent: Australian Government Solicitor