Minister for Immigration & Multicultural Affairs v McDade [2001] FCA 457 | Case summary

Federal Court of Australia|2001-04-26|Before: Katz JJ

introduction 1 This is an appeal from certain orders made by a Judge of this Court, on 5 May 2000, which included the granting of an order of review of a decision of the Immigration Review Tribunal ("the Tribunal") made on 19 May 1999 (there is no cross-appeal from an order dismissing an application for relief under s 39B of the Judiciary Act 1903 (Cth)). The Tribunal's decision was to affirm the decision of a delegate of the appellant to cancel the respondent's Transitional (Permanent) visa. His Honour remitted the matter to the Tribunal to be decided in accordance with the law.

factual and procedural background 2 The following recitation of the factual and procedural background is taken largely from the reasons of the learned primary Judge. 3 The respondentwas born in the United Kingdom on 8 March 1958 and is a British citizen. He arrived in Australia with his wife and children (who were the second to fourth applicants at first instance) as migrants with a Class 105 Concessional (Family) visa on 15 July 1991. The respondent's wife and children continue to reside in Australia, as do other members of his family. 4 On 1 September 1994, due to amendments to the Migration Act 1958 (Cth) ("the Act") and the Migration Regulations, the appellant became the holder of a Transitional (Permanent) visa. A copy of the relevant page in the respondent's passport was tendered and admitted into evidence before us, without objection. It shows that the visa granted to the respondent in London on 31 July 1990 operated as a "permanent entry permit" on each entry into Australia. In those circumstances, we think that it is reasonably clear that subreg 16(2) or, in the alternative subreg 4(1), of the Migration Reform (Transitional Provisions) Regulations (Statutory Rules 1994 No 261) ("the Regulations") operated to produce the result that the respondent was taken to have been granted, on 1 September 1994, a Transitional (Permanent) visa that permitted him to remain indefinitely in Australia. On the basis that the respondent produced a bogus document to an officer or made to an officer a statement which was false or misleading in a material particular, the respondent was a person to whom s 20 of "the old Act" (defined by subreg 3(1) as meaning the Actas in force immediately before 1 September 1994) applied and it was subreg 16(2) that produced that result. This is because subs 35(2) of the old Act would have operated to cancel the respondent's permanent entry permit well before 1 September 1994. Otherwise, subreg 4(1), which applied where a non-citizen was in Australia as the holder of a permanent entry permit immediately before 1 September 1994, would have operated to produce, in substance, the same result. The Tribunal found that the respondent had indeed made to an officer statements which were false or misleading in a material particular. 5 On 19 September 1994, the appellant's Department ("the Department") served the respondent with a "Notice of Intention to Cancel" his visa ("the First Notice") on the basis that his application to migrate to Australia contained incorrect answers. The respondent responded to this First Notice by giving a "Notification of Incorrect Answers" pursuant to s 105 of the Act. Such a step is provided for under a régime in the Act for the formal correction of mis-statements. 6 On 28 February 1997 (i.e. nearly two years and five months after the service of the First Notice) the appellant issued another "Notice of Intention to Cancel" the respondent's visa ("the Second Notice"). The respondent responded to the Second Notice in writing under protest in March 1997. 7 On 16 December 1997 a delegate of the appellant cancelled the respondent's Transitional (Permanent) visa, referring to ss 101, 103, 104, 105, 107 and 109 of the Act. Those provisions are in Subdiv C of Div 3 of Pt 2 of the Act ("Subdivision C"). Subdivision C came into effect on 1 September 1994. It may be helpful to bear in mind that the respondent applied to migrate to Australia on 20 January 1989. He was notified of the delegate's decision on 16 December 1997. 8 On 24 December 1997 the respondent applied to the Tribunal for review of the decision made by the appellant's delegate to cancel his Transitional (Permanent) visa. 9 On 9 October 1988 the Tribunal affirmed that decision ("the First Tribunal Decision"). The respondent applied to this Court for review of the First Tribunal's Decision. By consent, the matter was remitted to the Tribunal 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". 10 As we have mentioned, the Tribunal's second decision ("the Second Tribunal Decision") was to affirm the decision of the appellant's delegate to cancel the respondent's visa. The respondent applied for review of the Second Tribunal's Decision. On 5 May 2000 the primary Judge made the orders referred to above. We now descend to some detail in relation to the issue by the Department of the two Notices of Intention to Cancel. 11 The First Notice asserted that it was believed that the respondent had not complied with ss 101, 103 and 104 of the Act. Section 101 provides that a non-citizen must fill in his or her application form for a visa in such a way that all questions are answered and no incorrect answers are given. Section 103 provides that a non-citizen must not give an officer, the Minister or a tribunal performing a function or purpose under the Act, a bogus document. Section 104 imposes an obligation on a non-citizen, in certain specified circumstances, to notify an officer of a change in circumstances resulting in an answer being incorrect. 12 The First Notice stated that it was believed that the respondent had not complied with s 101 because he had given certain incorrect answers on the application form on which he had applied, on 20 January 1989, to migrate to Australia. Those answers had been in response to a question which had required the respondent to give details of his employment history since leaving school. The respondent had stated that he had been employed by five named employers only since leaving school, thereby omitting to mention three other employers, the Metropolitan Police, Tingles nightclub and Honeywell Information Systems. Employment by those three other employers had occurred during periods when the respondent had stated that he had been employed by one or other of the five named employers. The respondent had misstated the period of his employment with two of the five named employers and also the nature of his position with one of those two employers. 13 The First Notice further identified certain documents which the respondent had given, either to the Australian High Commission in London or to the National Office of Overseas Skills Recognition in Canberra. The giving of those documents could have breached s 103, on the basis that the documents were bogus. Those documents included employment testimonials from three of the five named employers. 14 The First Notice also stated that it was believed that the respondent had not complied with s 104 because he had failed to give notice of a change in circumstances which had occurred after 20 January 1989. That change was the respondent's assuming a false name and obtaining a live-in position at Bladon Lines Travel Limited from 3 July 1989. 15 The First Notice further stated that the respondent was entitled to comment on the possible grounds for cancellation and to provide a written answer within 14 days, i.e. by close of business on 4 October 1994 and 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. 16 By the due date the respondent forwarded to the Department his responses on the form appropriate to s 105 of the Act. In response to question 12 asking for details of incorrect information and question 13 asking why incorrect information had been provided, the respondent referred to a 25 page submission which was attached to the form. In Item 16 of his response, the respondent declared that the information on or with that form was true and correct in every detail. It is not clear whether the respondent signed the form. In his Honour's reasons he states that the respondent did sign the form, but did not date it. In its reasons for the First Tribunal Decision the Tribunal stated that both the form and the 25 page submission were unsigned and undated. 17 On 5 October 1994 the Department returned the documents to the respondent for attention to those matters (signing and dating) with a request that the documents be returned to it by 10 October 1994. In the covering letter it was stated that this was not an extension of the statutory period for response, but a request for correct signing and dating of a response already received by the Department. On 11 October 1994 the Manager of Investigations and Compliance of the Department wrote to the respondent's solicitors acknowledging that the respondent had responded to the First Notice within 14 days, but stating that his response was "not properly signed and dated". 18 The respondent did not return the form or submission to the Department. It appears that the Department did not keep a copy of either document. On 20 October 1994 the respondent's solicitors wrote to the Department disagreeing with the view that there was no power to extend time under subs 107(1) and also disagreeing with the requirement that their client return his response intact, altered only by correct signing and dating. They submitted that the response should not be considered at all in any manner for the purposes of making a decision in the matter. The respondent's solicitors requested the Department to inform them immediately whether their client should respond to the First Notice within any reasonable time granted. No response was received to that inquiry. 19 The Department issued the Second Notice to the respondent on 28 February 1997, following a review of its file in relation to him. In the letter dated 28 February 1997 which enclosed the Second Notice, it was stated: "You provided an unsigned response to that notice [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." 20 The particulars of the alleged false and misleading information and the facts upon which the Second Notice was based were in substance the same as the alleged incorrect answers in the First Notice and the facts on which the First Notice was based. The Second Notice stated that subpars 20(1)(c)(i) and (ii) of the Act, as in operation before 1 September 1994, applied to the respondent because of incorrect answers in his Application for Migration to Australia dated 20 January 1989, in relation to his employment history. The respondent 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. The Second Notice cited s 115(3) of the Act and s 41 of the Migration Reform Act 1992 (Cth) for that proposition. In the Second Notice, the allegedly false or misleading information was 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 Services is false and that you were in fact never employed by this company."

The legislative framework 21 Sections 107 to 113 (both inclusive) of the Act relevantly provide as follows: "107 Notice of incorrect applications (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 a period stated in the notice as mentioned in subsection (1A), 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 period stated as mentioned in subsection (1A), 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 that period - when the response is given; or (iii) otherwise - at the end of that period; 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 or 105 are not affected by the notice under this section; and (f) requiring the holder: (i) to tell the Minister the address at which the holder is living; and (ii) if the holder changes that address before the Minister notifies the holder of the Minister's decision on whether there was non-compliance by the holder - to tell the Minister the changed address. (1A) The period to be stated in the notice under subsection (1) must be: (a) in respect of the holder of a temporary visa - the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or (b) otherwise - 14 days. . . . (2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement. 107A Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa The possible non-compliances that: (a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and (b) if so specified, can constitute a ground for the cancellation of that visa under section 109; include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person. 108 Decision about non-compliance 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. 109 Cancellation of visa if information incorrect (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. [It was not suggestedthat this subsection applied in the present case]. 110 Cancellation provisions apply whatever source of knowledge of non-compliance To avoid doubt, sections 107, 108 and 109 apply whether or not the Minister became aware of the non-compliance because of information given by the holder. 111 Cancellation provisions apply whether or not non-compliance deliberate To avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent. 112 Action because of non-compliance not prevent action because of other non-compliance (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 of non-compliance. 113 No cancellation if full disclosure If the holder of a visa who has been immigration cleared complied with sections 101, 102, 103, 104 and 105 in relation to the visa, it cannot be cancelled under this Subdivision because of any matter that was fully disclosed in so complying."

the decision at first instance 22 His Honour found that the Minister was under a duty, pursuant to s 108, to consider any response from the respondent and to decide whether there had been non-compliance by him in the manner described in the First Notice. As the Minister had not done this, he had no power under s 107 of the Act to issue the Second Notice in respect of the same facts and circumstances (or some of them) as had been referred to in the First Notice. His Honour held that s 112 of the Act permits a second notice to be issued under s 107 only where there is a further or additional instance of possible non-compliance with the provisions referred to in the latter section. Accordingly, so his Honour held, the Second Notice was invalidly issued. He granted the application on this ground, which was ground 1. 23 His Honour then proceeded to consider and reject six further grounds. (Ground 2 was not proceeded with). It is necessary to summarise only his Honour's conclusions in relation to the grounds which form the subject of the respondent's Notice of Contention. They related to two matters, namely, whether the Tribunal had erred in law in its interpretation or application of s 20 of the old Act and whether the Tribunal had failed to set out its findings of fact and its reasons about whether the respondent had contravened s 20. His Honour found that the Tribunal had not done either.

the appeal 24 Although the appellant set out six paragraphs of grounds in his Notice of Appeal, they really comprised only three grounds. The first was that his Honour had erred in holding that he (the appellant) did not have power to issue the Second Notice under s 107 of the Act on the same facts and circumstances as those upon which the First Notice had been based. The appellant also sought to advance two further grounds which he had not argued at first instance. They were, respectively, that the primary Judge should have held that the Second Notice was valid because the First Notice was invalid, or, alternatively, if the Second Notice was invalid, that the decision of the appellant's delegate to cancel the respondent's visa was validly made pursuant to the First Notice. 25 The respondent argued that the appellant should not be permitted to advance these additional grounds. The appellant conceded that these additional grounds were not raised before the primary Judge and accepted that he required leave to raise them. He sought leave. We heard argument on the question of leave at the same time as we heard argument on the substantive points in the appeal, including the points in respect of which leave was sought. We reserved on the question of leave. 26 We would grant leave to the appellant in respect of both of the proposed additional grounds. Neither of them raises any factual controversy. The point in issue is one of construction and law. The first question raised is whether the First Notice was invalid and if so whether that meant that the appellant had power to issue the Second Notice. The second question raised is whether, if the Second Notice was invalid, it was still open to the appellant to cancel the respondent's visa pursuant to the First Notice. We think that it is expedient and in the interests of justice to entertain these grounds: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [16] and [22]. 27 The respondent submits that the appellant should not be permitted to argue that the First Notice was invalid because its invalidity was not propounded by the appellant before the primary Judge, there was an implied representation that it was valid and in reliance on that representation the respondent acted to his detriment. The respondent refers to "detriment" in the form of his having provided the "Notice of Incorrect Answers" and his having made submissions about the First Notice. 28 We do not think there is merit in the submission. In the first place the respondent relies on an estoppel by implied representation, although he does not identify precisely what the implied representation was (other than a representation "that the First Notice was valid"), or when or by reason of what circumstances it was made. These matters are important when one comes to consider the questions of reliance, change of position and detriment. In any event, in our view the detriment suggested is not of such a real or serious nature as is required to support an estoppel of a representor: cf Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 657, 674-675 and 682; Thompson v Palmer (1933) 49 CLR 507 at 520, 527-528, 547 and 558; Commonwealth v Verwayen (1990) 170 CLR 394 at 409, 413, 422, 444, 453-454, 475-476, 487, 500-501; Je Maintiendrai Pty Ltd v Quaglia (1980) 26 SASR 101; Territory Insurance Office v Adlington (1992) 109 FLR 124. Counsel for the respondent said that evidence might be available of further or other detriment suffered by the respondent but this vague suggestion takes matters no further in our opinion. 29 Moreover, contrary to the respondent's submission, we think that the estoppel contended for is of a substantive, rather than a procedural kind; cf Aronson and Dyer, Judicial Review of Administrative Action (Law Book Co, 2nd ed, 2000) at 124. Its effect here would be to deprive permanently the appellant of the power, given to him by statute to be exercised in the public interest, to give a valid notice under s 107 in respect of the respondent's Transitional (Permanent) visa, based on the facts on which the First Notice was based: cf Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 207-218 per Gummow J; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17-18 per Mason CJ. The respondent relied on Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303 at 324-328 but the passage relied on is against, rather than for, the operation of estoppel on the facts of this case.

our reasoning on the grounds of appeal 30 We think it would be useful, at this stage of these reasons, to give our view about the application to this matter of Subdivision C. It would be useful to do so because, in our view, it resolves the appeal by reference to the first of the two new grounds referred to above. 31 Subsection 115(3) provides as follows: "(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: (a) this Subdivision had applied to: (i) the application for the visa; and (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 In our view, Subdivision C applies to the respondent's Transitional (Permanent) visa for the following reasons. It was granted otherwise than because of an application on or after 1 September 1994. It was partly because of the respondent's application on 20 January 1989 for a Class 105 Concessional (Family) visa that the respondent held the permanent entry visa and, on and from 1 September 1994, the Transitional (Permanent) visa. It was also, of course, partly due to the operation of subreg 16(2) (or subreg 4(1)) of the Regulations that he did so. 33 Notwithstanding the use of the word "included" in par 115(3)(c), we do not think that ss 100, 101, 102, 103 or 104 applied to a person in the situation of the present respondent. As a Full Court of this Court observed in Minister for Immigration & Multicultural Affairs v Jalal [2000] FCA 1370, 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. The same reasoning applies, in our view, to the obligations imposed by ss 102, 103 and 104. Not without some lingering doubt, we consider that s 105 may apply to a person in the circumstances of the present respondent. Section 105 can be complied with after 1 September 1994 in respect of an answer given in an application form, or a passenger card, completed before that date. 34 If the First Notice was valid, s 108 operated in the present matter so as to require the Minister to decide whether there was a non-compliance by the respondent in the way described in the notice - see par 108(b). It is worth noting that the Minister's decision is not whether there was non-compliance by the visa holder with, for example, s 101, but whether there was a non-compliance by the visa holder in the way described in the notice. 35 As we have mentioned above, the First Notice asserted non-compliance with ss 101, 103 and 104. The person who drafted the notice does not seem to have appreciated that Subdivision C applied to the respondent's visa in the manner specified in subs 115(3). Nowhere in the First Notice is there any reference to any action of the respondent because of which s 20 of the old Act applied to him. As counsel for the appellant pointed out in argument, the provisions of Subdivision C are more onerous than those with which they compare in the former s 20. 36 We have considered whether the factual matters stated in the First Notice were sufficient to give the respondent "… particulars of the possible non-compliance …" within the meaning of subs 107(1). 37 In our opinion, they were not. The whole tenor of the First Notice was that the respondent had failed to comply with ss 101, 103 and 104. In relation to s 101, the First Notice referred to the giving of "incorrect answers to some questions" in the application form - language and concepts of ss 101, 104 and 105. The language of s 20 of the old Act was not employed i.e. it was not asserted that the particular statements were "false or misleading in a material particular". Nor, in relation to the bogus documents (s 103) was it asserted that the documents were produced to "an officer or a person exercising powers or performing functions under [the Act] in respect of the grant of [the] visa". Section 103 prohibits a non-citizen from giving a bogus document to a wider range of persons than are referred to in its predecessor, subpar 20(1)(c)(i). There is reference, for example, in s 103 to "an officer". That term is defined in s 5 very widely and includes, again for example, an officer for the purposes of the Customs Act 1901. The First Notice alleges that if any forged or incorrect documentation had been produced to the National Office of Overseas Skills Recognition, it would have been a bogus document rendering the entry visa a bogus document. There is then reference to contravention of s 103 by production of the allegedly bogus entry visa to a Customs Officer on arrival in Australia. 38 Accordingly, in our view the First Notice was not a notice authorised by s 107 of the Act. 39 Because, in our opinion, the First Notice was not "A notice under section 107 …" within the meaning of that expression in subs 112(1), there is no need to consider whether there was "…another instance of [possible] non-compliance" within the meaning of that phrase in subs 112(1) 40 The issue of the Second Notice, which referred to the relevant provisions of s 20 of the old Act, was, in our view, a valid exercise (for the first time) of the power conferred on the appellant by s 107 and enlivened the power of cancellation given to him by s 109 of the Act. Both the primary decision of the appellant's delegate and that of the Tribunal concerning what might be termed "the merits" of the allegations made in the Second Notice were that the allegations of the making of statements that were false or misleading in a material particular had been made out. 41 It follows that we would allow the appeal on this ground. It should be emphasised that this ground was not a matter argued before his Honour.

the respondent's notice of contention 42 The respondent's Notice of Contention contained an assertion that two matters were erroneously decided against him by the primary Judge. The first was the respondent's complaint that the Tribunal had erred in its interpretation or application of s 20 of the old Act. The second was the respondent's contention that the Tribunal's reasons did not set out findings on material questions of fact or refer to the evidence or other material on which the findings of fact were based, contrary to the requirements of s 368 of the Act. 43 Both of these contentions arise out of the fact that in its reasons for the Second Tribunal Decision, the Tribunal incorporated by reference part of the reasons for the First Tribunal Decision in relation to the matter of allegedly misleading information. The Tribunal was differently constituted as between the two occasions. Henceforth we will refer to them as "the First Tribunal" and "the Second Tribunal" respectively. The relevant passage in the Second Tribunal's reasons read as follows: "The facts relating to the misleading information have been set out in the Tribunal's 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." 44 The respondent contended that the above statement was patently ambiguous and incapable of being properly understood. The Tribunal had, so it was put, incorrectly applied the test of whether a statement was false in a material particular, a test which had been set out by the Full Court of this Court in Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348. The respondent submitted that the application of the test in Dela Cruz required the decision-maker to ascertain precisely what statements had been made which were false and then to determine whether the falsity was in a material particular. The Tribunal had failed to do this, so it was contended, because it did not clearly set out which of the statements of fact it found to be false in a material particular. It was impossible to ascertain from the statement above which facts the Tribunal had found and was relying upon.

our reasoning on the notice of contention 45 When one turns to pages 14-16 of the Second Tribunal's reasons, it can be seen, in our opinion, that the Tribunal did not err in the manner contended for by the respondent. The Second Tribunal referred specifically to Dela Cruz and noted that subs 20(1) of the old Act did not apply to statements that were merely false or misleading; there was the added requirement that the statement be false or misleading in a material particular. The Second Tribunal observed that in the context of subs 20(1), a statement would be false or misleading in a material particular if it was relevant to the purpose for which it was made and that it would be relevant to that purpose if it might, not only if it must or will inevitably, be taken into account in making a decision under the Act about the grant of the visa or entry permit in respect of which the statement was made. In our view, the Second Tribunal's reasons demonstrate that it understood the law to be applied. It did not err, as the respondent maintained, in interpreting s 20 of the old Act. 46 It was in that context that it made the statement, set out above, which is the basis for the respondent's complaint. Having made that statement, the Second Tribunal proceeded to make the following findings: "The Tribunal finds that the Applicant gave false and misleading information on his original application. The Tribunal finds 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 when determining the application. This is clearly the case in relation to the grant of the Class 105 (Concessional Family) visa. The written statements and supporting statements in the Applicant's application for his visa to migrate to Australia were made or caused to be made to an officer or a person exercising powers or performing functions under the Act and were false or misleading in a material particular. The documents and statements had a direct and fundamental relation to the Applicant's ability to gain permanent residence in Australia. The Tribunal notes that over time and in a number of submissions the Applicant admitted to providing incorrect information and answers and how these were inadvertent or inconsequential and not misleading. The Tribunal notes that the Applicant made the false statements and provided incorrect information knowing that this would enhance his prospects of getting the visa applied for (see also Kaur v Minister for Immigration, Local Government and Ethnic Affairs (Federal Court, 9 February 1994, Carr J unreported)). The Tribunal is satisfied on balance, that having regard to the circumstances of this case that [sic] the Applicant's statements regarding aspects of his employment in his application to migrate to Australia amounted to a breach of sections of the Act. Such breaches are subject to section 109 of the Act." 47 The question is whether, by incorporating by reference the facts relating to the misleading information in the First Tribunal's reasons, the Second Tribunal correctly applied s 20 of the old Act in a manner which complied with subs 368(1) of the Act? 48 Subsection 368(1) of the Act is very similar to subs 430(1) which imposes duties on the Refugee Review Tribunal. Subject to certain provisos, subs 368(1) requires the Tribunal (in this case the Immigration Review Tribunal) when it makes its decision to set out its findings on any material questions of fact and to refer to the evidence or any other material on which the findings of fact were based. 49 We do not think that the words in parenthesis "(as corrected by the Applicant)" were patently ambiguous and incapable of being properly understood, as the respondent contends. It does not require even a beneficial construction of the Second Tribunal's reasons to understand that it was referring to the respondent's two forms of "Notification of Incorrect Answers" which the respondent sent in response to the First Notice and the Second Notice respectively. Those forms can be seen, quite easily, as attempts by the respondent to correct the information which he had supplied to the Department. We think it is important to bear in mind that the respondent admitted almost all of the incorrect answers and false or misleading information referred to in both the First Notice and the Second Notice. 50 When one turns to the Second Notice to ascertain the extent of factual disagreements between the parties on the issue of misleading information when the matter was before the First Tribunal, the position is as follows:

Failure to disclose periods of full-time employment with the Metropolitan Police, Tingles Nightclub and Honeywell Information Systems. 51 The respondent admitted these matters in each of his Notifications of Incorrect Answers.
Stated periods of employment with Distillers Co Ltd, Central Regional Council and Sovereign Computer Services were incorrect. 52 Again, the respondent admitted mis-stating the periods of his employment with Distillers Co Ltd and Central Regional Council. That leaves the matter of the stated periods of his employment with Sovereign Computer Services. In the respondent's application to migrate (dated 20 January 1989) he stated that from July 1984 to "pres" (that is, to 20 January 1989) he had been employed by Sovereign Computer Services at 7/13 Praed Street, London W2 as an Analyst/Programmer. In his evidence to the First Tribunal the respondent admitted that his work for Sovereign Computer Services was part-time. In a statement to the Department in either 1993 or 1994 the respondent told the Department that he had worked at the British School of Motoring from approximately 1984 to 1986. The main issue between the Department and the respondent was whether a letter dated 24 October 1989 from "Sovereign Computer Systems" was genuine. The First Tribunal found that the respondent had not been in full-time employment as a computer programmer/analyst between 1984 and 1990 "as stated in his application for migration". The respondent did not expressly state in his application that this employment had been full-time, but it was clearly open to the First Tribunal to find that this was to be implied from the manner in which the respondent had filled in the form. It can be seen from the Second Tribunal's reasons that the respondent was not contending that there were any errors in the findings of the First Tribunal about his employment history in the United Kingdom. His evidence went largely to matters relevant to the exercise of the discretion whether to cancel his visa. 3. Provision of a forged testimonial from the Central Regional Council misrepresenting the respondent's period of employment and status with that organisation. 53 The respondent admitted that the dates identifying his employment with the Central Regional Council were wrong and that he did not hold the position of Senior Computer Operator with that organisation, but contended that he undertook functions at that level.
False testimonial from Sovereign Computer Services. 54 There is no need to consider this item because the respondent's complaint relates not to the provision of a bogus document, but to the manner in which findings had been made in respect of false or misleading statements made by him. 55 In our opinion, when the above passages from the reasons for the Second Tribunal Decision, set out above at [46], are read with the facts incorporated into its decision by reference to the reasons for the First Tribunal Decision, the Second Tribunal complied with the obligations imposed upon it by subs 368(1). 56 The Second Tribunal set out its findings that the applicant gave false and misleading information in his original application and, in particular, that the respondent's statements about his employment details before coming to Australia were false in a material particular. In our view, it was sufficient, in the circumstances to which we have referred above, for the Second Tribunal simply to refer to the facts relating to that misleading information as set out in the First Tribunal's reasons and as referred to by the respondent in his various submissions, for the Second Tribunal to comply with its obligations under par 368(1)(d). 57 We do not think the primary judge erred in the manner asserted in the Notice of Contention.

Conclusion 58 For the foregoing reasons we would allow the appeal. There remains the question of costs both at first instance and on appeal. The appellant has succeeded on a point not raised at first instance and which he was allowed to raise only by leave from us. The fact that the respondent was otherwise unsuccessful on the various other grounds raised by him at first instance and the fact that the respondent has been largely unsuccessful on appeal should, in our opinion, result in there being no order as to costs either at first instance or in relation to the appeal. 59 The respondent sought a certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) if the appeal were allowed. That section provides, relevantly, that where a Federal appeal succeeds on a question of law, the Court may grant to the respondent a costs certificate in respect of the appeal stating that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal. 60 It may well be, although in our view it is not necessary to decide the point, that s 6 is intended to operate by way of compensation to a respondent only where a Judge has made an error of law at first instance. Assuming, for the purposes of this matter, that the section is not to be so confined, we would not, as a matter of discretion, grant a costs certificate to the respondent in relation to the appeal. We can state our reasons briefly. The grant to the appellant of leave to raise the ground upon which he was eventually successful was decided by the application of conventional and fairly predictable principles. The respondent must be taken to have weighed up his chances in relation to both the matter of leave and the substantive point. He presented a vigorous opposition to the appellant in both respects. He also advanced the matters referred to in the Notice of Contention without any success. In our opinion, justice will be served if the respondent, in those circumstances, bears his costs without indemnity from the Attorney-General, i.e. we do not think it would be appropriate for the Attorney-General to authorise payment to the respondent of those costs. 61 We order that: 1. The appellant have leave to advance the two further grounds of appeal referred to in [24] of the reasons for judgment of the Court delivered today. 2. The appeal be allowed. 3. Orders 2, 3, 4 and 5 of the orders made on 5 May 2000 in proceeding W 51 of 1999 in this Court be set aside and in lieu of those orders, the present respondent's application in that proceeding be dismissed.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Carr, Lindgren and Katz .

Solicitor for the Appellant: Australian Government Solicitor

Solicitor for the Respondent: Mr George Turnbull, Director Legal Aid WA

Migration Reform Act 1992(Cth)

Minister for Immigration & Multicultural Affairs v McDade

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (4)

Cases Cited (12)

Cited By (2)