Minister for Immigration & Multicultural Affairs v Jalal

Federal Court of Australia|1996-01-31|Before: Emmett JJ

REASONS FOR JUDGMENT 1 The first respondent, Syed Jamal Jalal ("Mr Jalal") is a national of Afghanistan. At about 12 noon on 28 August 1998, a delegate of the appellant, the Minister for Immigration and Multicultural Affairs ("the Minister"), granted a visa to Mr Jalal to travel to, enter and remain in Australia. At about 1 p.m. on the same day the Minister cancelled the visa under s 128 of the Migration Act 1958 (Cth) ("the Act"). Mr Jalal then filed an application to the Court for an order of review of the decision to cancel the visa. On 3 March 2000 a judge of the Court ordered that the decision be set aside. The Minister now appeals to the Full Court from that order. 2 Mr Jalal is married to the second respondent, Hamida Jalal ("Mrs Jalal"). Both were born and lived in Afghanistan. In 1989 Mr and Mrs Jalal and their two children left Afghanistan and travelled to India. There they applied for, but were refused, migrant visas 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 rebels who were seeking to overthrow the communist government. Shortly after that time, in 1993, Mrs Jalal decided to go to Pakistan with her children. 3 While in Pakistan Mrs Jalal was granted a visa. In mid 1993, she and her children arrived in Australia where they have continued to live since that time. All are now Australian citizens. Shortly after Mrs Jalal arrived in Australia, Mr Jalal lodged an application for a Class 100 (Spouse) Visa at the Australian High Commission in Islamabad. The application bears the date 29 August 1993. A Class 100 (Spouse) Visa may be granted to a person who is the spouse of an Australian citizen or the spouse of an Australian permanent resident. 4 The application for a Class 100 (Spouse) Visa was required to be made on prescribed form number 47. One item of information requested was details of all countries where the applicant had lived in the previous ten years. In filling in the 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, but claimed that his arrival in Pakistan in 1993 was the first time he had travelled outside Afghanistan. 5 The Minister's department conducted an inquiry to determine whether Mr Jalal should be granted a visa. In the course of those enquiries, the Department was informed that Mr Jalal had been a member of the Afghanistan Intelligence Service, officers of which were involved in widespread acts of torture and repression. The Department was also informed that Mr and Mrs Jalal had lived in India and had unsuccessfully applied for a visa at the Australian High Commission in New Dehli. 6 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. The Minister's delegate formed the opinion that Mr Jalal was not of good character because of his alleged connection with the Afghanistan Intelligence Service and also because of the false information in his application and the false statements he had made to an immigration officer. Accordingly, the delegate refused to grant a visa to Mr Jalal. 7 Mr Jalal applied to the Administrative Appeals Tribunal ("the Tribunal") to review the decision of the Minister's delegate. By that time, the criteria for the grant of a Class 100 (Spouse) Visa included a requirement that the applicant satisfy the public interest criteria found in Schedule 4 of the Regulations. Those criteria would have been satisfied if, among other matters, the applicant had met the requirements of clause 4001(4). That subclause was as follows: "(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." 8 Section 501 of the Act relevantly provided as follows: "(1) The Minister may… cancel a visa that has been granted to a person, if:

(a) subsection (2) applies to the person; ……………………… (2) This subsection applies to a person if the Minister:

(ii) the person's general conduct; is satisfied that the person is not of good character. ………………………" 9 The Tribunal was not satisfied that Mr Jalal had been a member of the Afghanistan Intelligence Service. On the other hand, it found 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. Notwithstanding that finding, the Tribunal held that the circumstances were such that it was appropriate that Mr Jalal be granted a visa. That is to say, the Tribunal, standing in the shoes of the Minister, decided not to exercise the power under s 501 to refuse to grant the visa. 10 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 clause 4001. The delegate was therefore required to, and did, grant a Class 100 (Spouse) Visa to Mr Jalal as indicated above. The question is whether the Minister had power to cancel that visa under s 128 as he purported to within a very short time after its grant. 11 The matter proceeded before the primary judge on the basis that the legislation applicable was that in force from 31 January 1996. At the outset of the hearing of the appeal, however, counsel for the Minister drew attention to the fact that the application had been lodged by Mr Jalal in 1993. Accordingly, a question now arises as to what was the applicable legislation in force at the time of the Minister's purported cancellation. We shall deal first with the Minister's power to cancel on the assumption that the relevant legislation was that considered by the primary judge. In that regard, the Act as in force as at 31 January 1996 will be referred to as "the 1996 Act". 12 Section 128 of the 1996 Act relevantly provides as follows: "If:

(i) there is a ground for cancelling a visa under section 116; and

(ii) it is appropriate to cancel in accordance with this Subdivision [Subdivision F]; and

the Minister may, without notice to the holder of the visa, cancel the visa." 13 Section 116(1)(d) of the 1996 Act relevantly provides as follows: "...the Minister may cancel a visa if he or she is satisfied that: ………………………

(d) if its holder has not entered Australia… - 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; ………………………" 14 Sections 107, 108 and 109 of the 1996 Act, all of which are contained in Subdivision C, relevantly provide as follows: "107.(1) If the Minister considers that the holder of a visa who has been immigration cleared… did not comply with section 101… 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…

(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. 109.(1) The Minister, after:

(a) deciding under section 108 that there was non-compliance by the holder of a visa; and

may cancel the visa." 15 Section 101 of the 1996 Act relevantly provides as follows: "A non-citizen must fill in his or her application form in such a way that:

(b) no incorrect answers are given." 16 Mr Jalal has not entered Australia. Accordingly, if the provisions of Subdivision C set out above apply, a literal application of them would authorise the Minister to cancel the visa without notice under s 128. That is to say: · incorrect answers were given in contravention of s 101; · no notice was required under s 107; · the visa would have been liable to be cancelled under Subdivision C if Mr Jalal had entered Australia and had been immigration cleared; · there was a ground for cancelling the visa under s 116(1)(d); · the Minister was satisfied that it was appropriate to cancel the visa in accordance with Subdivision F. 17 The primary judge concluded that there are aspects of the provisions that indicate the power to cancel a visa for non-compliance with a provision relating to an application form is confined to non-compliance that was not known when the visa was granted. His Honour considered that, if the Minister decided that a non-citizen who had failed to comply with s 101 should be granted a visa, that should be an end to the matter. His Honour could detect no reason of policy to construe the legislation in a manner that would give the Minister an opportunity to reconsider his decision. Further, his Honour considered that it would be undesirable if the Minister had such a power. 18 The legislation does not expressly qualify or modify a Minister's power of cancellation in the way his Honour suggested. The provisions of the 1996 Act confer a discretion on the Minister either to cancel or not to cancel a visa in the event of non-compliance with the requirements of Subdivision C. While the fact that the visa was granted by the Minister with full knowledge of the non-compliance may be a matter that could be taken into account by the Minister, there is no basis for concluding that, in such circumstances, the power of cancellation is negated. 19 There is a regime in the provisions of the 1996 Act for the formal correction of mis-statements. Under s 105, if a non-citizen becomes aware that he or she has given incorrect information, he or she must notify an officer of the incorrectness and of the correct information. It may be, although it is not self-evident, that, if the non-citizen corrects any incorrect information in accordance with s 105 before the grant of the relevant visa, then the visa may not be subject to cancellation under Subdivision C on the ground of the prior incorrect statement. That question does not arise in this case and it is not necessary to express any view about it. The question is whether the power to cancel is negated by the fact that the Minister has become aware of the incorrect statement before the grant of the visa. No attempt has been made to impugn the Minister's decision to cancel Mr Jalal's visa otherwise than on the ground of lack of power. In particular, there has been no suggestion that the Minister's decision has been vitiated because the power was exercised for an improper purpose. 20 The scheme of the 1996 Act is detailed and specific. The pivotal provision is s 65 which relevantly provides as follows: "65 (1) After considering a valid application for a visa, the Minister:

(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… any… provision of this Act or of any other law of the Commonwealth; and

(iv) any… [charges] payable in relation to the application have been paid;

(b) if not so satisfied, is to refuse to grant the visa." Thus, the Minister has no discretion under s 65. If he or she is satisfied as to the relevant matters, the visa must be granted. If the Minister is not so satisfied, the visa must be refused. 21 While the power given by the 1996 Act relating to cancellation of a visa is discretionary, there are certain exceptions. For example, under s 109(2), if the Minister may cancel a visa under subs (1), the Minister must do so if there exist circumstances declared by the Regulations to be circumstances in which a visa must be cancelled. Under s 116(3), if the Minister may cancel a visa under s 116(1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. It has not been suggested that prescribed circumstances existed in relation to Mr Jalal. 22 The scheme of the legislation is cumbersome in the sense that it imposes an obligation on the Minister to grant a visa in the circumstances set out in s 65 but then confers on the Minister a discretion to cancel a visa at any time if grounds for cancellation are established. Nevertheless, there is no inconsistency in such a scheme and it can be justified for reasons of administrative convenience and certainty. 23 If contravention of a provision such as s 101 were a ground for refusing a visa, there would arguably be an implied restriction on the power of the Minister to cancel a visa for that reason if, notwithstanding the incorrect statement, the Minister had decided to grant the visa. However, while the Minister may have regard to an incorrect statement in considering the character criteria in relation to an applicant, the Minister is not authorised to refuse the grant of a visa by reason only of an incorrect statement in an application form. 24 It is only if the Minister concludes that, by reason of the incorrect statement, the applicant is not of good character and decides to exercise the power under s 501 to refuse to grant the visa that the Minister is authorised to refuse the grant of a visa. Thus, the Minister might conclude that, because of a person's general conduct consisting of making incorrect statements in an application, the person is not of good character. The Minister then has a discretion to refuse to grant a visa to a person. 25 In this case, the Tribunal found that Mr Jalal was not of good character for the reason that he had made false statements in his application and had made false statements to an immigration officer. While the Tribunal decided not to refuse to grant a visa for that reason, that did not preclude the Minister from exercising the quite different power conferred by s 128 of the 1996 Act. It follows that, if Subdivision C of the 1996 Act is applicable, the Minister had power to cancel the visa. 26 However, Mr Jalal made his application for a Class 100 Spouse Visa on or about 29 August 1993. Clearly s 101 of the 1996 Act did not apply to Mr Jalal at that time. The legislative provisions then in force were those to be found in Reprint No. 4 as at 31 January 1994 of the Migration Act and the Reprint as at 30 September 1993 of the Migration (1993) Regulations (SR 1992 No. 367 as amended). The legislation in force as at 29 August 1993 will be referred to as "the 1994 Act". 27 Sections 14, 17, 20, 26 and 35 of the 1994 Act relevantly provided as follows: "14.(1) On entering Australia, a non-citizen becomes an illegal entrant unless:

(a) he or she is the holder of a valid entry permit; or

(b) the entry was authorised by section 17. (2) Where a person to whom subsection 20(1) applies has entered Australia (whether before or after the commencement of this section) then, at and after that commencement, or that entry, whichever is later, the person is an illegal entrant at any time while he or she:

(c) does not hold a properly endorsed valid entry permit or a properly endorsed valid entry visa. ……………………… 17.(1) An entry visa may be granted to a person who has entered Australia or who is in another country.

(2) The holder of an entry visa that is in force may enter Australia. ……………………… 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: ……………………… (b) when, or before, the person entered Australia on any occasion, he or she: ……………………… (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; or (c) when, or before, a visa was granted or issued on any occasion in respect of the person, he or she:

……………………… (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 ……………………… 26. The Minister may at any time, in his or her absolute discretion, cancel a valid visa. ……………………… 35.(1) The Minister may at any time, in his or her absolute discretion, cancel a valid temporary entry permit. (2) Where, because of the operation of subsection 14(2) or 83G(2), a person is an illegal entrant even though the person holds a valid entry permit, the entry permit shall be taken to have been cancelled:

whichever is later. " [Emphasis added] 28 The introductory words of ss 20(1) and 20(2) of the 1994 Act are identical and are as follows: "This subsection applies to a person, being a non citizen, who has entered Australia, whether before or after the commencement of this section, if…" [Emphasis added] 29 It is significant that s 20(3) of the 1994 Act itself recognised a distinction between a case to which s 20(1) or s 20(2) applied, on the one hand, and a case where subs (1) "would apply" if the person had entered Australia, on the other hand. Section 20(3) provided as follows: "(3) A person:

(a) to whom subsection (1) would apply if the person entered Australia; or

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 would apply, or applies, as the case requires." [Emphasis added] 30 Pursuant to the Migration Reform Act 1992 (Cth) ("the Reform Act"), ss 14, 17, 20, 26 and 35 of the 1994 Act, among others, were repealed as from 1 September 1994. The Reform Act also introduced Division 3 of Part 2 of the 1996 Act. Division 3 of Part 2 contains Subdivision C. Section 115, which is within Subdivision C, is a transitional provision. 31 Section 115 provides as follows: "(1) This Subdivision applies to:

(2) This Subdivision, other than sections 101 and 102, applies to:

(a) applications for visas, or entry permits, within the meaning of the Migration Act 1958 as in force before 1 September 1994, that under the regulations are taken to be applications for visas and that have not been finally determined before that date; and

(b) passenger cards filled in before 1 September 1994.

(3) This Subdivision applies to a visa granted otherwise than because of an application on or after 1 September 1994 and does so as if:

(ii) passenger cards filled in before that date; and

(b) the application for any other visa, or entry permit, (within the meaning of the Migration Act 1958 as in force immediately before that date) because of which the visa is held had been the application for the visa; and

(c) for the purposes of sections 107 to 114, non-compliance by the holder of the visa with the sections referred to in section 107 included any action or condition of the holder because of which section 20 of that Act as so in force applied to the holder." 32 The question is whether, in the light of s 115 of the 1996 Act, the Minister had power to cancel Mr Jalal's visa under ss 128 and 116(1)(d) of the 1996 Act by reason of the false statements made by Mr Jalal between 27 August 1993 and 5 September 1994. It is necessary to consider the structure of s 115. Sections 115(1) and 115(2) make Subdivision C applicable to certain applications for visas and passenger cards. Section 115(3), on the other hand, has the effect that Subdivision C applies to certain visas. 33 The application of Subdivision C to certain applications for visas and passenger cards depends upon when the application was made or when the passenger card was filled in. Subdivision C is to apply to passenger cards whether filled in on or after 1 September 1994 or before 1 September 1994 except that s 102 does not apply to passenger cards filled in before 1 September 1994. The latter exception is necessary because s 102 provides that a non citizen must fill in a passenger card in such a way that all questions on it are answers and no incorrect answers are given. The Reform Act that inserted Subdivision C commenced on 1 September 1994. It would have been nonsensical to impose from 1 September 1994 an obligation in respect of the filling in of a passenger card that had already been filled in before that date. 34 The scheme of ss 115(1) and 115(2) is similar in so far as they apply to applications for visas. Section 101 provides that a non citizen must fill in an application form in such a way that all questions on it are answers and no incorrect answers are given. By virtue of s 115(1) Subdivision C is to apply to applications made on or after 1 September 1994. Under s 115(2) Subdivision C, except for ss 101 and 102, applies to all applications for visas that had not been finally determined before 1 September 1994. Again, it would have been nonsensical to impose an obligation in respect of the filling in of an application that had already been filled in before the date on which the obligation was imposed. 35 Clearly, s 115(1) has no application in the present case. Further, the express exclusion to be found in s 115(2) renders ss 101 and 102 inapplicable in the present case. 36 There is no exception in relation to ss 101 and 102 in s 115(3) because no exception is necessary. That is to say, s 115(3) has the effect that Subdivision C applies to certain visas, namely, those visas granted otherwise than because of an application on or after 1 September 1994. In other words, it applies at least to visas granted because of an application made before 1 September 1994. However, Subdivision C is to apply to such a visa as if Subdivision C had applied to the application for the visa and as if s 107 included any action or condition of the holder of the visa because of which s 20 applied to that holder. 37 The effect of s 115(3) is that Subdivision C applies to the visa granted to Mr Jalal as if: · Subdivision C had applied to the application for that visa; · the application for any other visa because of which Mr Jalal's visa is held had been the application for his visa; and · non-compliance by Mr Jalal with s 101 includes any action of Mr Jalal because of which s 20 applied to him. 38 The Minister relies on s 20(1)(b)(ii) and s 20(1)(c)(ii). Literally, of course, s 20(1) could not be applicable to Mr Jalal because, in its terms, that subsection applies only to a person who has entered Australia. Mr Jalal has not. The Minister contends, however, that s 115(3)(c) is applicable to a case, like the present, in which the person concerned has not yet entered Australia, notwithstanding the introductory words of s 20(1), which limit the application of that subsection to a person who has entered Australia. 39 The Minister contends that a person who has not entered Australia is, for the purposes of the exercise of the cancellation power that is conferred by s 128 of the 1996 Act, in combination with ss 116(1)(d), 109 and 107 of the 1996 Act, deemed to have entered Australia and to have been immigration cleared. That deeming is said to be effected by the closing words of s 116(1)(d). Section 116(1) provides as follows: "Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: ………………………… (d) 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 Subdivisions C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or …………………………" [Emphasis added] Thus, the Minister contends, if the person is otherwise within s 20 of the 1994 Act, Subdivision C is made applicable to him or her by s 115(3)(c). 40 The Minister contends that ss 128, 116(1)(d), 115(3)(c), 109 and 107 of the 1996 Act are, for relevant purposes, linked and that, in combination, they have the effect that a person who, without actually entering Australia, otherwise falls within the scope of s 20 of the 1994 Act, is liable to have his or her visa cancelled pursuant to Subdivision C of the 1996 Act. 41 However, it is tolerably clear that the closing words of s 116(1)(d) were intended to do no more than extend the power of cancellation to a visa held by a person who did not satisfy s 107(1) by having been "immigration cleared". One cannot be "immigration cleared" unless one has "entered Australia". There was no concept of "immigration clearance" in the 1994 Act. It is difficult to see how s 116(1)(d) was intended to do the work that the Minister contends. 42 Having regard to the extremely detailed and specific approach taken in the drafting of the relevant legislation, there is no warrant for reading the legislation otherwise than entirely literally. There is no warrant for treating the closing words of s 116(1)(d) as qualifying the express reference to s 20 in the transitional provision contained in s 115(3)(c). 43 It would, of course, be a different matter altogether if s 115(3)(c) referred to the holder as a person to whom s 20(1) or s 20(2) would apply if the person had entered Australia. That is the drafting technique adopted in relation to s 20(3) of the 1994 Act. However, one does not get to s 116(1)(d) unless s 20 applies, and for the reasons indicated, s 20 does not apply. In other words, even if Mr Jalal had entered Australia before cancellation of the visa, it would not have been liable to be cancelled under Subdivision C because s 20 did not apply to him, and there is no provision that deems s 20 to have applied to him. 44 The Minister contends, alternatively, that s 115(3)(c) should be read as though it contained, at the end, the following additional words: "…or would have applied if the person had entered Australia." Clearly, if such words had been included that would have been sufficient to render Subdivision C applicable in the present case. However, having regard to the drafting approach adopted in relation to the legislation, there is no warrant for reading words into the 1996 Act that are not there. One object of adopting such a detailed drafting approach was presumably administrative certainty. It would be quite contrary to that object if so called "drafting deficiencies" could be remedied by reading additional words by implication into the provisions of the Act. 45 The Minister relies on the Explanatory Memorandum for the 1992 Bill for the Reform Act which contains the following: "124. The overall intention of [s 115] is to ensure that the new procedures apply, not only to applications and passenger cards completed after the commencement of the Migration Reform Act 1992 but also to applications completed before the commencement and only resolved afterwards, to passenger cards completed before commencement and also to all of those persons in respect of whom section 20 of the [pre-1 September 1994] Migration Act was deemed to have operated." 46 The Minister also draws attention to paragraph 127 of the Explanatory Memorandum as follows: "127. The exclusion of the application of sections [101 and 102] in these circumstances does not mean that persons who have completed such applications or passenger cards in these circumstances have no obligations to provide accurate information. Rather it means that they are responsible for the information or documents given or conditions suffered in the manner and circumstances set out in section 20 of the pre 1 November 1993 Migration Act - see subsection [115(3)]…" 47 However, the Explanatory Memorandum cannot be the justification for supplementing the legislation by implication. It may be called in aid where there is some ambiguity in the language of the provisions which it purports to explain but it cannot be allowed to change the effect of the legislation in order to overcome what are subsequently perceived as undesirable consequences of the plain meaning of the language. 48 When the purpose of a legislative provision is clear, a court may be justified in giving the provision a strained construction to achieve that purpose, provided that the construction is neither unreasonable nor unnatural. If the target of a legislative provision is clear, a court's duty is to ensure that the target is hit rather than to record that it has been missed. As a result, on rare occasions a court may be justified in treating a provision as containing additional words if those additional words will give effect to the legislative purpose. However, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect - Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 113. 49 The difficulty with such an approach in the present case is raised by the drafting technique that has been adopted in relation to this legislation. This is not remedial legislation. It is not directed to overcome some mischief. The Reform Bill was stated to be intended to continue "the process of modernising Australia's immigration law". The Explanatory Memorandum claims that the major themes behind the changes to be made by the Reform Bill are "simplicity, clarity, certainty and fairness". Clarity and certainty are not advanced by reading into the legislation words that are simply not there. 50 It follows, since s 115(3) does not apply in the present circumstances, that the 1996 Act is not applicable. The power exercised by the Minister therefore did not exist. Accordingly, the appeal should be dismissed. 51 The basis upon which we consider the appeal should be dismissed was not raised by counsel for Mr Jalal but by senior counsel for the Minister. But for that matter having been raised, the appeal would have been upheld. The appropriate order, therefore, is that the appeal be dismissed and that there be no order as to the costs of the appeal. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate: Dated: 28 September 2000 Counsel for the Appellant: Mr A Cavanough QC

Solicitor for the Appellant: Australian Government Solicitor

Solicitor for the Respondents: Nathan Legal Practitioner

Australia Migration Act 1958(Cth)

Migration Reform Act 1992(Cth)

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