Noeung v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant is a Cambodian national. She was born on 11 April 1976. 2 On 16 August 1995, the applicant lodged an application for a visa under subclass 104, being a Preferential Family (Remaining Relative) visa. The application form contained questions with various alternatives to tick which, relevantly, the applicant answered as follows: Show your marital status · Never married Have you previously been married or been in a de facto/common law relationship? · No 3 The application form also contained questions about the existence of children, but the provision of answers to those questions was predicated on an affirmative answer to the second question referred to in [2] above. 4 The applicant lodged her application in Cambodia. On 12 October 1999 (over four years after the application) an officer of the Department, located in Phnom Penh, signed a letter which was sent to the applicant, advising her that her visa had been granted that day. The letter advised the applicant that she must first enter Australia, no later than 7 September 2000. She did so. The letter also contained the following information: Other conditions are as follows: Condition 9204/8515: That you do not marry before entering Australia. The visa permits unlimited travel and entry to Australia until 11 October 2004 and indefinite stay on arrival provided entry is made before that date [7 September 2000]. If you wish to travel overseas and return to Australia after that date you will need to obtain a resident return visa. … Change of circumstances You are reminded that you must continue to notify the Department of Immigration and Multicultural Affairs if your circumstances change so that any answer given in your application form, or any information given in relation to your application, is no longer correct. The obligation to notify is in respect of changes of circumstances before you are given permission to leave the airport or seaport on arrival in Australia. Incorrect Information You are also reminded that you must advise the Department of Immigration and Multicultural Affairs if at any time you find that any information you have given to the Department is incorrect. This obligation continues after arrival in Australia. [emphasis added] 5 On 7 February 2002, while the applicant was in Cambodia, a delegate of the respondent Minister, located in Phnom Penh, cancelled the applicant's visa under s 128 of the Migration Act 1958 (Cth) (the Act). 6 Section 128 is in the following terms: 128 Cancellation of visas of people outside Australia If: (a) the Minister is satisfied that: (i) there is a ground for cancelling a visa under section 116; and (ii) it is appropriate to cancel in accordance with this Subdivision; and (b) the non-citizen is outside Australia; the Minister may, without notice to the holder of the visa, cancel the visa. 7 The record of decision of the Minister's delegate indicates that the delegate considered that there were grounds for cancellation of the visa under par 116(1)(d) and s 101 of the Act. Section 116 provides various grounds upon which the respondent may act to cancel a visa. The relevant paragraph (par 116(1)(d)), with an interpolation of the extended meaning of "enter" as including re-enter (see s 5), is in the following terms: 116(1) 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 [or re-entered] Australia or has so entered [or re-entered] but has not been immigration cleared - it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered [or re-entered] and been immigration cleared; … 8 Subdivision C, referred to in par 116(1)(d) above, included s 101, which is in the following terms: 101 Visa applications to be correct A non-citizen must fill in his or her application form in such a way that: (a) all questions on it are answered; and (b) no incorrect answers are given. 9 The record of decision discloses, in three separate places, that the provision apparently relied upon to substantiate the exercise of the power provided for by par 116(1)(d) and s 128, was s 101: that is, incorrect answers or incorrect information contained in answers in the application form. 10 The record of decision sets out the "reasons" for the delegate's view that there were "grounds for cancellation under paragraph 116(1)(d) - subsections 101 [sic]." The "reasons" were recorded as follows: · The visa holder has provided incorrect information in her application form pertaining to her marital status and previous defacto relationship. This misleading information has been provided by NOEUNGTouch in order to obtain an immigration advantage: · She provided false and incorrect information about her marital status as she was in a defacto relationship with KEO Sithat and they had a child, KEO Sophavatey, together born on 29/6/1999. · She failed to notify her change of circumstances in her marital status (of her defacto relationship) and that she had a child throughout the processing of her application, after the visa was granted nor did she notify, as was her obligation under law, before she was given permission to leave the airport on arrival in Australia. This obligation to notify any changes of circumstances was highlighted in the visa holders [sic] approval letter. 11 The material adjacent to the first bullet point, at [10] above, was plainly directed to s 101. It stated that the applicant had given incorrect information "in her application form". 12 The material adjacent to the second bullet point, at [10] above, appeared to be directed to the further provision of information, which was both "false and incorrect information". The relationship between these matters and s 101 was thus far from clear. 13 The material adjacent to the third bullet point, at [10] above, appeared to be irrelevant to s 101. It would appear that this information was relevant to the obligations within s 104 of the Act, being obligations to which the applicant had been directed by the letter of 12 October 1999, under the heading "Change of circumstances" ([4] above). Relevantly, s 104 is in the following terms: 104 Changes in circumstances to be notified (1) If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them. … (3) If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared. 14 The record of decision continued as follows: Reason why it is considered appropriate to cancel without notice under s 128: It is suspected that the visa holders [sic] reaction to possible visa cancellation under s 116 could be to attempt to travel to Australia while she remains the holder of the visa in the belief that visa cancellation would be more difficult once she is in Australia. I have taken into consideration that fact that a non-citizen whose visa is cancelled overseas will not have a right to seek merits review in Australia. Where cancellation is under section 128, the non-citizen will have had no prior opportunity to state a case nor any warning which could allow them to return to Australia where merits review would be available if the visa is subsequently cancelled. However, in my opinion there is a high degree of proof in this case and therefore more than justifiable grounds for cancellation under section 128 (grounds s 116(1)(d), sub-ground s 101). Part D: DECISION In view of the findings and assessment above, I have decided to cancel the visa holder's visa. [emphasis added] 15 On the day upon which the decision was made, the delegate signed a letter which was hand delivered, together with the record of decision, to the applicant's nominated post office box in Phnom Penh. The letter, set out in full, was in the following terms: I wish to advise that your visa was cancelled on 7 February 2002 under section 128 of the Migration Act 1958 because you did not comply with subsection 101 [sic] of the Migration Act 1958. You have provided incorrect information and made false and misleading statements in regard to your marital status and that you had been in a defacto/common law relationship in your application for a subclass 104 Remaining Relative visa. You also failed to notify the Department of Immigration and Multicultural and Indigenous Affairs of your change of circumstances, in that you had a child prior after [sic: after] you lodged your application and prior to your visa being granted, and therefore the information in your application was no longer correct. The Migration Act 1958 gives you the opportunity to comment on why you think the ground for cancellation does not exist and/or to give reasons why your visa should not have been cancelled. If you are able to show that the ground for cancellation does/did not exist, the cancellation of your visa will be revoked. If you cannot show that the ground for cancellation does/did not exist, but there is a reason why your visa should not have been cancelled, the cancellation of your visa may be revoked. You should respond to this Notice by 7 March 2002. There is no provision for this time frame to be extended. If you do not respond by the above date, the revocation of the cancellation of your visa will not be considered. As you are no longer the holder of an Australian visa, you are not entitled to travel to Australia. If you do you will be refused immigration clearance and will be removed from Australia. Relevant agencies in Australia have been advised that your visa has been cancelled. [emphasis in original] You may wish to make another application for a visa, however I can give no indication of the possible outcome of that application. You should contact your nearest Australian mission for further information. 16 This letter, read together with the enclosed decision record, is relied upon by the respondent as a notice complying with the requirements of s 129 of the Act. Section 129 is in the following terms: 129 Notice of cancellation (1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice: (a) stating the ground on which it was cancelled; and (b) giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and (c) inviting the former holder to show, within a specified time, being a prescribed time, that: (i) that ground does not exist; or (ii) there is a reason why the visa should not have been cancelled; and (d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and (e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked. (2) The notice is to be given in the prescribed way. (3) Failure to give notification of a decision does not affect the validity of the decision. 17 The applicant relies on a number of defects in the letter and decision record (to which I will compendiously refer hereafter as the Notice) as a notice under s 129. One such defect so relied upon concerned the time given to the applicant to furnish a response. 18 The letter of 7 February 2002 required a response by 7 March 2002. This gave the applicant twenty-seven clear days in which to respond, 7 March being the twenty-eighth day after (but not including) 7 February. Paragraph 129(1)(c) requires a time to be specified in the notice, "being a prescribed time" within which the former visa holder is invited to show the matters set out in pars 129(1)(c)(i) and (ii). 19 Regulation 2.46 in Div 2.9 of Pt 2 of the Migration Regulations 1994 specifically deals with the time to respond to notice of cancellation under par 129(1)(c). It provides, relevantly, as follows: For the purposes of paragraph 129 (1) (c) of the Act (which deals with response to cancellation of a visa), the following periods are prescribed: (a) if the former holder of the visa is outside Australia when he or she is given a notice of the cancellation - 28 days; (b) if he or she is in Australia when he or she is given notice of the cancellation: (i) if he or she wishes the cancellation to be reconsidered while he or she is in Australia - 5 minutes; or (ii) if he or she wishes the cancellation to be reconsidered while he or she is outside Australia, and he or she departs Australia as soon as possible after being given a notice of the cancellation - 28 days; beginning when the former holder of the visa is given a notice of the cancellation. 20 The evidence before me discloses that a driver hand delivered the Notice to a post office box in Phnom Penh on 8 February 2002. There was no evidence before me as to when the Notice was in fact received by the applicant. However, reg 2.55 is here relevant. By par (1)(c) of reg 2.55: (1) This regulation applies to: … (c) the giving of a document to a holder or former holder of a visa relating to the revocation of the cancellation of a visa under the Act. … 21 Under par (3) of reg 2.55: (3) For a document mentioned in paragraph (1)… (c), the Minister must give the document in one of the following ways: (a) by handing it to the person personally; (b) by handing it to another person who: (i) is at the person's last residential or business address known to the Minister; and (ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and (iii) appears to be at least 16 years of age; (c) by dating it, and then dispatching it: (i) within 3 working days (in the place of dispatch) of the date of the document; and (ii) by prepaid post or by other prepaid means; to the person's last residential address, business address or post box address known to the Minister; (d) by transmitting the document by: (i) fax; or (ii) e-mail; or (iii) other electronic means; to the last fax number, e-mail address or other electronic address known to the Minister. [emphasis added] 22 Paragraph (7) of reg 2.55 provides a deemed date of receipt in respect of a document which is despatched in the manner contemplated under par (3)(c). It is in the following terms: (7) If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document: (a) if the document was dispatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document; or (b) in any other case - 21 days after the date of the document. 23 Mr Henry, who appeared for the applicant, submitted that the combined effect of par 129(1)(c), reg 2.46 and reg 2.55 pars (3)(c) and (7) required that the Notice specify twenty-one days after the date of the document (reg 2.55 par (7)) and twenty-eight days thereafter (reg 2.46): making 28 March 2002 (not 7 March) the last day for the applicant to respond. 24 Mr Smith, who appeared for the respondent, submitted that there was a disconformity in language between deemed receipt in par (7) of reg 2.55 and the former visa holder being given the Notice, as referred to in reg 2.46. He submitted that the time ran from the time of actually being given the Notice (which on the evidence here the applicant had not proved). I do not accept this submission. Reg 2.46 ("given") and par (7) of reg 2.55 ("received") is linked by par (3) of reg 2.55, which uses the words "must give". The words "given", "giving", "give" and "received" are being used synonymously in different parts of speech referable to the same event (the becoming aware of the Notice) from the two perspectives of the transmission of the information. Also, par 129(1)(c) refers to a "way" which is "prescribed". It is necessary to be able to specify in the Notice under s 129 the expiry of the invitation. If the Notice is to be delivered by the method in par (3)(c) of reg 2.55, that can only be done with certainty if the deeming provision in par (7) is relevant. Any specification based on twenty-eight days after actual receipt would be impossible since the date of actual receipt at the time of despatch of the Notice by a method under par (3)(c) of reg 2.55 is an event to occur on an unknown day in the future. Hence the need for a deeming provision. 25 Thus, the Notice was defective, at least in one respect. It should have given the applicant until 28 March 2002 to respond. 26 To return to the narrative of events concerning the Notice, on 8 March 2002, solicitors acting for the applicant sent two letters by facsimile to the delegate. The first was a letter requesting an extension of time in which to respond. It was in the following terms: I have received instructions to act for Ms Noeng [sic] in this matter and enclose her authority to do so. I request an extension of 14 days in which to make submissions. I note that there is no restriction on giving such an extension in the Migration Act 1958 (the Act) or its attendant Regulations. Further, I note that the Notice is dated 7 February, 2002 and apparently sent to a post office box in Phnom Penh in which case 21 days are prescribed for receipt of the letter the Act s 494C(4)(b). Please confirm by return fax that either, 1. the extension is granted or 2. the 21 day deemed receipt provisions apply. 27 The authority of the applicant referred to in the first paragraph of the above letter was not in evidence. I do not know when the solicitors commenced to act for the applicant. The references to par 494C(4)(b) were to provisions to like effect as contained in reg 2.55 pars (3)(c) and (7) to which I have made reference, above. The matter was argued before me on the basis that the regulations to which I have referred are the correct source of the assertion as to the entitlement to more time. 28 The second letter sent by the applicant's solicitors to the delegate by facsimile enclosed two statements: one of the applicant and one of a Mr Sithat Keo. At the time, the applicant was seeking to sponsor Mr Sithat Keo in a visa application made by him. The letter of the solicitors contained the following: I note the explanation set out in the statement of Ms Neong [sic] and submit that, in the absence of any evidence to the contrary, there is no reason to disbelieve what she says. I further note that in your decision you refer to "a hight [sic] degree of proof in this case" and would be obliged to receive details of what this proof is. I would also be obliged to know what opportunity was given to Ms Neong [sic] to comment on this "proof" prior to making your decision. As I now act for Ms Neong [sic] you should address all future correspondence to me at the above address. 29 It will be apparent, shortly, when I discuss the enclosed letter from the applicant, what it was to which Mr Turner, the applicant's solicitor, was referring by way of the applicant's "explanation". The Minister's delegate's reference to a "high degree of proof" (see the record of decision at [14] above) obviously concerned the solicitor. Also, the last sentence of the letter indicates that he was now acting for the applicant. 30 Before turning to the letters of the applicant and Mr Sithat Keo, it is appropriate to analyse a little further the elements of the Notice. Leaving aside, for the moment, the failure to expressly identify s 104 of the Act, the following was clear from the Notice: (a) The first sentence of the letter of 7 February 2002, set out at [15] above, identified a breach of s 101. (b) That first sentence is to be read with the second sentence. (c) The second sentence may not be limited to incorrect information at the time of the original application. (d) The third sentence dealt with a failure to disclose information about having a child after the application. (e) The information adjacent to the first bullet point in the decision record, set out at [10] above, reflected the incorrect information at the time of application for the purposes of s 101 (see (a) and (b) above). Though this paragraph ends in a colon, I take that to be a typographical error: it should be a full stop. (f) The information adjacent to the second bullet point in the decision record, set out at [10] above, referred to false and incorrect information "provided" in connection with the applicant's marital status and the existence of a child. The addition of the adjective "false" is important. It is, perhaps, not clear whether the paragraph was referring to the provision of false and inaccurate information at the time of the application or the provision of false and inaccurate information after the application. This ambiguity is important, as will become evident in due course. The information about the child could not found an allegation of the provision of false or incorrect information in the application. The child was not born at the time of the application, as the delegate knew. Given that the third bullet point deals with failure to disclose, I would read the second bullet point as referring to the provision of false and incorrect information about the applicant's marital status and about the child, in part, at least, after the application. (g) The information adjacent to the third bullet point appears to identify the information about the applicant's marital status as information arising after the signing of the application form. That is, it appears to recognise (as indeed it appears to be the fact) that the relationship between the applicant and Mr Sithat Keo arose after 1995. This paragraph also referred to the information about the child not being disclosed "throughout the processing of her application", after the grant of the visa and on clearance at the airport in Australia. (h) The decision record, in the last paragraph, referred to the existence of a "high degree of proof in this case" and concluded that there were "more than justifiable grounds for cancellation". 31 The letter signed by the applicant and sent under cover of Mr Turner's letter of 8 March 2002 was dated 4 March 2002. It was detailed and clear. Despite its length, it is appropriate that I set it out in full (typographical errors appear in original): Subject: Notification of cancellation of visa under Section 128 of the Migration Act 1958: Ms Touch Noeung. I have received your notification of my visa cancellation under section 128 of the Migration Act 1958, while I was in Cambodia, outside Australia, for the following reasons: · "I provided incorrect information in my application form pertaining to my marital status and previous defacto relationship; · I provided false and incorrect information about my marital status as I was in defacto relationship with Keo Sithat and we had a child, Keo Sophavatey, together born on 29/6/99; · I failed to notify my change of circumstances in my marital status (of my defacto relationship) and that I had a child through the processing of my application, after the visa was granted, nor did I notify before I was given permission to leave the airport in Australia". I wish to provide the following reasons and comments on why my visa should not have been cancelled and therefore request your consideration upon the revocation of this cancellation: