Rios v Minister for Immigration & Multicultural Affairs [2001] FCA 1313 | Case summary

the material availablE to the decisionmaker 14 My Lysons was aware that the appellant had entered Australia on a sub-class 976 visitor's visa on 3 May 2000 and had remained in Australia until 20 June 2000, when he departed, that he had obtained a new sub-class 976 visitor's visa on 9 July 2000 and had re-entered Australia on 10 July 2000. He was aware that the applicant had departed Australia on 14 September 2000 and had then been granted the new sub-class 976 visitor's visa which was cancelled on 18 October 2000 in the circumstances set out above. 15 My Lysons also had the documentation, found in the applicant's baggage, which comprised : (a) Letter dated 10 August 2000 addressed to the applicant through Tristan Services Inc, 130/501 Queen Street, Brisbane from US Attorneys concerning the purchase of Group Distributing Inc, Shares of Stock. (b) A Telstra overdue account addressed to the applicant at Unit 130, 501 Queen Street, Brisbane for the sum of $82.50 claimed to be due on 24 August 2000. (c) A Telstra account addressed to the applicant at the same Brisbane address for a "Big Pond Advance" for the period ended 31 July 2000 in the amount of $192.60. The Big Pond account user is shown as Mr T Rios. (d) A notice of cancellation of service from Telstra directed to Mr T Rios (Sole Trader) Unit 130, 501 Queen Street, Brisbane. The cancellation notice relates to non-payment of $1,286.35 claimed as due on 27 August 2000. (e) A Telstra account addressed to the applicant as "Sole Trader" at the Brisbane address for $1,422.40, including the $1286.35 claimed as overdue, for payment by 14 September 2000. (f) An account dated 28 August 2000 from Power Up Internet Service Providers, addressed to the applicant at his Brisbane address in the sum of $1,083.01 payable by 11 September 2000 for the supply of a permanent link for ten ports. (g) An account dated 28 August 2000 from Power Up Internet Service Providers for $729.27 payable by 11 September 2000. (h) An overdue account notice from Foxtel dated 24 August 2000 for a past due account of $131.70 for cable television services. (i) A seven page monthly bank statement for August 2000 from DS Bank of St Paul Minnesota USA for an account of Tristan Services Inc of 1805 Bellevue Avenue, Apt 402, Seattle WA 98 122-6802 USA, detailing all deposits and withdrawals from the account. 16 The other information available to Mr Lysons was constituted by the statements made by the applicant and recorded in the written report exhibit "PKO1", the contents of which have not been disputed by the applicant. That information includes the following : (a) The applicant stated that he was a self-employed programmer who writes computer software on the Internet and that he has friends in Australia who stay at the Queen Street address. (b) The applicant stated that he could work from anywhere with the laptop computer, which he had with him, and that he had a US$25,000-US$30,000 debit account to support himself. (c) The applicant confirmed that during the two and a half to three month period he had previously spent in Australia, he had continued to run his business from his laptop computer. 17 The report contained the following statements : "R WAS ASKED WHAT TOURING HE HAD DONE WHILST IN A/A AND HE SAID HE HAD BEEN TO THE GOLD COAST. R SAID WE TRY TO GO SOMEWHERE EVERY COUPLE OF WEEKS. HE HAS BEEN TO A BIRD SANCTUARY AT LONE PINE, GOES OUT ON THE WEEKENDS AND STATED HE SPENDS A LOT OF TIME INSIDE. ... ... ... R STATED THIS WAS HIS FIRST DAY BACK, HE WILL CLEAR EVERYTHING UP. HE HAD TAKEN HIS UNOPENED MAIL FROM SEATTLE TO BALI, HE HAD NO TIME TO OPEN THE MAIL AS HE HAD BEEN ON VACATION. ... ... ... AS DELEGATE I CONSIDERED THAT THERE WERE GROUNDS FOR VISA CANCELLATION UNDER S116(1)(B) & (G) AND REG 2.43(1)(K) ON THE BASIS OF THAT R HAD BREACHED THE 'NO WORK' CONDITION ON HIS VISA, INTENDED TO CONTINUE HIS ACTIVITIES, HAD BEEN RUNNING HIS BUSINESS FROM A/A, HAD ESTABLISHED A BUSINESS ADDRESS, AND, FROM THE NATURE OF HIS ACTIVITIES AND HIS OWN ADMISSION THAT HE 'SPENDS A LOT OF TIME INSIDE' AND 'TRIES TO GO SOMEWHERE EVERY COUPLE OF WEEKS' HAD NOT DEMONSTRATED ANY GENUINE TOURISM AND WAS NOT INTENDING A VISIT FOR TOURISM PURPOSES. AT 0955 HOURS I SERVED A WRITTEN NOTICE OF INTENTION TO CANCEL R'S VISA ON DIMA FORM 1111 (PART A) FOR THE FOLLOWING REASONS: BREACH OF NO WORK CONDITION, INTENTION TO WORK, NOT A GENUINE TOURIST. I PROVIDED FOR A RESPONSE AT 10.05 HOURS, TO BE MADE WITHIN 10 MINUTES. AT 1015 R PROVIDED THE RESPONSE THAT HE DID NOT CONSIDER HE HAD BREACHED THE 'NO WORK' CONDITION AS I DID NOT HAVE ENOUGH INFORMATION TO MAKE THE DECISION. HE HAS SEVERAL EMPLOYEES AND COMPANIES, ALL IN THE USA, NO MONEY COMING IN FROM A/A. HE HAS TO CHECK HIS INCOMINGS. HE DID NOT KNOW HOW ANYBODY COULD CONSIDER HE WAS OPERATING FROM A/A. HE HAS A VIDEO DISTRIBUTION, THERE IS NO POSSIBLE WAY TO OPERATE FROM A/A, HE HAS SHIPPERS, DISTRIBUTORS, A WAREHOUSE, IT IS NOT POSSIBLE TO OPERATE FROM A/A. ALSO, HE DID NOT KNOW THE RULES. NO ONE TOLD HIM WHAT WAS WRONG. IF HE KNEW HE WOULD GO AND SORT THINGS OUT TODAY WITHOUT BREAKING THE RULES. HE IS NOT SURE WHAT THIS ENTAILS BUT HE WOULD DO IT. THE INTERVIEW WAS SUSPENDED AT 1020 HOURS. AT 1030 R SAID HE WAS A US CITIZEN AND PART OF A GROUP, HE WOULD NOT GIVE ANY NAMES. R ASKED FOR HIS RIGHTS AND WAS ADVISED NO DECISION HAD YET BEEN MADE BUT HE COULD HAVE ACCESS TO A LAWYER. ACS ADVISED A MALE HAD BEEN ASKING ABOUT R IN THE ARRIVALS AREA. R WAS ADVISED OF THIS AND IT WAS ASCERTAINED THIS WAS R'S SO STATED BUSINESS PARTNER AND LIFE PARTNER, KOFFLER, TIMOTHY LEE, 28.02.1975 WHO HAD BEEN PREVIOUSLY IDENTIFIED BY R ON THE CHECK LIST FOR BONA FIDES CASES. R WAS ADVISED OF PRIVACY REQUIREMENTS AND AT HIS REQUEST KOFFLER WAS ADVISED R IS ALL RIGHT AND THAT KOFFLER WILL BE KEPT INFORMED. AT 1130 HOURS, BASED ON THE ABOVE INFORMATION, I DECIDED TO CANCEL R'S VISA UNDER S116(1)(B)(G) AND REG 2.43(1)(K) AS I WAS SATISFIED THAT HE DID NOT HAVE AT THE TIME OF THE GRANT OF THE VISA, OR HAD CEASED TO HAVE, AN INTENTION ONLY TO VISIT A/A TEMPORARILY FOR TOURISM PURPOSES TO HAVE, AN INTENTION ONLY TO VISIT AUSTRALIA TEMPORARILY FOR TOURISM PURPOSES BUT INTENDED TO CONTINUE HIS WORK IN AUSTRALIA. AT 1140 HOURS I SERVED WRITTEN NOTIFICATION OF THE DECISION ON DIMA FORM 1111 (PART C)." 18 The applicant submits that Reg 2.43 requires that the decisionmaker be satisfied that the visa holder did not have at the time of the grant of the visa, or had ceased to have, the requisite intention. That is, the decisionmaker must make a finding of the non-existence of a fact ie an intention only to visit Australia temporarily for tourism purposes. Accordingly, he submits s 476(4)(a) or (b) applies. In support of the submission that s 476(4) applies to a finding of the non-existence of a fact, reliance is had on the decision of a Full Court of this Court in Guden v Minister for Immigration and Multicultural Affairs [2000] 58 ALD 352, and the decision of Kheirollahpoor v Minister for Immigration and Multicultural Affairs [2000] FCA 1350. 19 The respondent submits that s 476(4) has no application to a finding of the non-existence of a fact and that in consequence the ground under s 476(1)(g) is not made out and is not available to the applicant. In support of his submission, the respondent relies upon the following first instance decisions: N258/00A v Minister for Immigration and Multicultural Affairs [2000] FCA 993 at [27]; Aung v Minister for Immigration and Multicultural Affairs [2000] FCA 1562 at [38]; Perchine v Minister for Immigration and Multicultural Affairs [2001] FCA 168 at [20]. 20 In my view it is unnecessary to determine whether or not , as Carr J concluded in Kheirollahpoor, the Full Court decision dealt with the question of the application of s 476(1)(g) and s 476(4) to a finding of the non-existence of a fact. If there existed some evidence before the decisionmaker, then s 476(1)(g) is not made out in any event: Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 (FC) at [28]; Charaev v Minister for Immigration and Multicultural Affairs [2000] FCA 865 at [19]. 21 I propose therefore to determine whether or not any evidence of the absence of, or cessation of, the requisite intention on the part of the applicant was available to Mr Lysons as the decisionmaker at the time the decision was made on 18 October 2000. 22 At the outset it is necessary to bear in mind the warning identified in Guden by the Full Court as to the distinction between no evidence to justify a decision, and whether or not the decisionmaker should have made the decision. The Full Court said (at 357 - 358, par [15] ) : "[15] It is important to recognise the clear distinction between establishing that there was no evidence or other material to justify the making of the decision because the person who made the decision based their decision on the existence of a particular fact and that fact did not exist, which is reviewable under s 476(1)(g), and a claim that the Tribunal should not have made the finding of fact which it did which, in general terms, is not reviewable. Section 476(1)(g) and (4) of the Act are in identical terms to s 5(1)(h) and (3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). In Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212; 27 ALD 181, Black CJ (with whom Spender and Gummow JJ agreed) said at FCR 220-221; ALD 188 : 'Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion. If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact. Accordingly, I agree with the conclusion of Lee J in Akers v Minister for Immigration and Ethnic Affairs (1998) 20 FCR 363 at 374; 16 ALD 688 that there is no reason to read s 5(3)(b) in a way that would limit its operation to a predominant reason for the decision under review.' In Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 the full court (Moore, Mansfield and Emmett JJ) cited this passage from Curragh and said at [34]: 'Thus, the appellant must show that the decision of the tribunal was based upon the existence of a particular fact, and that that particular fact did not exist if he is to invoke successfully ss 476(1)(g) and 4(b). The particular fact is to be distinguished from the ultimate fact in issue, or a conclusion based upon a series of particular facts, although one of those particular facts may qualify under s 476(4)(b): Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193; Feliciano v Minister for Immigration and Ethnic Affairs (1996) 43 ALD 1; Malik v Minister for Immigration and Ethnic Affairs (1997) 47 ALD 27; Adams v Minister for Immigration and Multicultural Affairs (1997) 70 FCR 591; 48 ALD 280'". 23 The applicant filed a number of affidavits which sought to establish that : (a) he was the proprietor of two substantial United States companies, Tristan Services Inc, an Internet programming and database development provider, and Group Distributing Inc, a video distribution company; (b) Group Distributing Inc had a permanent staff of six in the United States, and an annual turnover of about $750,000, and had recently been acquired by him; (c) Tristan Services Inc had one full-time and three part-time employees and a substantial monthly turnover; (d) he and his partner were officers of the two United States companies; (e) at no time while the applicant was in Australia did he undertake any work other than with respect to his own interests in the United States; (f) his activities in Australia were associated with supervision of the United States corporations "to ensure that they remained afloat and travelling well whilst I was away on holidays"; (g) the applicant and his partner chose Brisbane as the base for an Australian holiday because the applicant had friends in Brisbane and for that purpose obtained rental accommodation at Unit 130/501 Queen Street, Brisbane; (h) as a consequence of being required to be in constant contact with key executives in the United States regarding business operations, he made arrangements for telephone and Internet services to be provided by Telstra and Power-Up as well regarded Internet services providers; (i) the Internet services were only used for personal use and for communication associated with his business operations in the United States; (j) since first arriving in Australia on 3 May 2000, save for travelling to the United States for business purposes and travelling to Bali on vacation, the applicant and his partner travelled extensively in Australia to Melbourne and environs, Sydney and environs, and the North and South Coasts in Queensland, preferring to mix with the locals rather than visit tourist attractions; (k) his expenditure in Australia was solely for leisure purposes and funded from resources in the United States as appeared from the bank statement taken from his baggage on 18 October 2000; (l) the purpose of his return to the United States on 20 June 2000 was to finalise the purchase of Group Distributing Inc; (m) he did not know what the term "SOLE TRADER" on the Telstra account meant or why it appeared on the account; it was not a matter which he ever raised with Telstra; (n) he took the bills with him when he left Australia on 14 September 2000 and did not look at them until he was in Bali, and that because he could not carry on his business affairs in Bali due to poor telephone services, he decided to take care of his business affairs and the overdue bills upon his return to Australia. 24 The applicant was not cross-examined on any of the affidavit material filed on his behalf. The applicant submits that the material establishes that he was an American businessman on holiday in Australia, whose business interests in the United States required that he be in frequent and substantial contact with those interests via the Internet. He submits by his counsel that he was in no different position to any other foreign businessman on holiday in Australia under an Electronic Travel Authority (Visitor) visa (sub-class 976) who cannot leave his business at home and must bring it on holiday with him, devoting to it such time as it requires while still being a bona fide tourist. The material, the applicant submits, establishes that the fact relied upon by the decisionmaker to cancel the visa, viz, the non-existence of a solely tourist purpose, did not in fact exist because the applicant had at the time of the grant of the visa, and, continued to have an intention only to visit Australia temporarily for tourism purposes. 25 The respondent submits that notwithstanding what is contained in the affidavit material relied upon by the applicant, that material was not before the decisionmaker and it is not consistent with what was said to Mr Lysons and which is contained in his report. What Mr Lysons was told, properly understood, meant that the applicant had been in Australia for approximately six months save for when he returned twice to the United States and went on vacation to Bali. It also meant that the applicant was a self-employed programmer who could work from anywhere on line with a laptop computer, that the applicant had established Internet connections with two Internet service providers, one of which recorded on its invoices that the applicant was a sole trader, that such Internet services had been in operation since July 2000, were substantially used and involved the running up of substantial unpaid accounts. The respondent submits that the conduct of the applicant as described in the interview, indicated that the applicant during the week spent most of his time inside attending to his business working "on line" generating business from the United States with money earned in that business being wired to his United States account. The weekends were used for leisure and for tourist pursuits. This had been the pattern of the applicant's life in Australia since soon after his first arrival in May 2000. 26 The decisionmaker's reasons are found in par 8 of Form 1111 and the inspector's report. The decisionmaker found : (a) the applicant was not in Australia for tourism; (b) the applicant ran a business from Australia or within Australia; (c) the applicant intended to continue to work [in that business] in Australia, if granted immigration clearance and allowed to enter on 18 October 2000. 27 Based on these findings, Mr Lysons as delegate of the Minister, found as an ultimate fact that the applicant did not have at the relevant time, or had ceased to have, an intention only to visit Australia temporarily for tourism purposes. 28 The word "tourism" is defined in Reg 1.03 for the purpose of the Act and Regulations. It means "participating in activities of a recreational nature including amateur sporting activities, informal study courses, relaxation, sight seeing and travel." 29 In my view, the activities of the applicant since his first arrival in Australia did not have the colour of tourism as defined. The Internet facility which the applicant had put in place did not have the appearance of an Internet connection merely for personal use and enjoyment or for the purpose of communicating with executives in charge of his business interests in the United States. The documents revealed two high capacity Internet services capable of moving high volumes of material through two Internet service providers. The Internet facilities were established in July, so far as the material indicated, for an indefinite period to be charged and paid for on a monthly basis with accounts to be rendered to a fixed Australian address. One of the Internet service providers, for a reason the applicant could not explain when asked, had designated the applicant in the conduct of the account a "SOLE TRADER". The amounts involved in the outstanding accounts were not insignificant and the applicant had not seen the necessity to pay the accounts before returning to Australia from a vacation in Bali. 30 Further, the applicant did not tell Mr Lysons that the Internet services were for his personal use and enjoyment. Rather, he indicated that they were for use by the applicant in and in connection with a business or businesses which he carried on from Australia to generate income outside Australia which was deposited in the United States, and to communicate with the business of Group Distributing Inc, which was physically carried on in the United States. The applicant had described to Mr Lysons how he engaged in a regular pattern of activity whereby he would regularly during the week, by using the Internet, engage in activities to generate income and wealth for himself and companies in which he had an interest, leaving the weekends free for leisure. The arrangement which the applicant had in Australia and to which he stated that it was his intention to return, had the colour of a location of choice made by the applicant because he had friends in Brisbane, and because he liked the climate in Australia, at which location he intended to live and from which he intended to conduct his business affairs. This he was able to do using established technology services wherever his business interests might be physically located. The primary findings made by Mr Lysons reflect the existence of such arrangements and are based on them. 31 In my view, there was evidence and material to support each of the primary findings made and those findings in turn could reasonably support the ultimate finding that the applicant did not on 18 October 2000 have the requisite tourism purpose. 32 In order to make out the ground in s 476(1)(g), if it were otherwise applicable to a finding based on the non-existence of a fact, a matter I find unnecessary to determine, the applicant must establish : (a) the decision of the decisionmaker was based on a fact; (b) there was no evidence of that fact before the decisionmaker; (c) the fact is disproved. (See Charaev at [19] and the cases cited there). 33 The applicant does not establish on the material tendered in this Court, that there was no evidence or material of the primary facts found, or that there was no evidence or material to justify the making of the ultimate decision for the purposes of s 476(1)(g) and s 476(4)(a) of the Act. 34 Nor does the applicant on the material tendered in this Court, establish that the primary facts found by the decisionmaker, or the ultimate fact as found, did not exist for the purposes of s 476(1)(g) and s 474(4)(b) of the Act. 35 The material filed in Court which was not before the decisionmaker goes no further than changing the emphasis on the use of the Internet services by highlighting the use to supervise and direct others in the conduct of businesses in the United States of America rather than the performing of substantial work on line as a self-employed programmer generating income from outside Australia for such work which was paid in the United States of America. Upon analysis, the case put by the applicant was that Mr Lysons should not have made the findings of fact which he did because the evidence and materials which were before him did not support them or, in the light of the additional material placed before the Court on this application, were capable of different interpretations. Similarly, the applicant contends that the ultimate fact found as a matter of inference based on the primary facts found should not be made because another and different inference could be drawn on the whole of the materials when supplemented with the material filed by him in these proceedings. That approach fails to draw the distinction highlighted by the Full Court in Guden in the passage cited above. 36 For these reasons the applicant fails to make out a ground under s 476(1)(g) of the Act. 37 The applicant submits further that the decisionmaker failed to comply with the provisions of s 119 of the Act. Section 119 provides : "119 Notice of proposed cancellation (1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and: (a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and (b) invite the holder to show within a specified time that: (i) those grounds do not exist; or (ii) there is a reason why it should not be cancelled. (2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate. (3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally. (4) The other provisions of this Subdivision do not apply to a cancellation: (a) under a provision other than section 116; or (b) to which Subdivision F applies." As to the operation of s 119, a Full Court of this Court said in Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at par [26] : "[26] The mode of notification may be prescribed. There is, however, no prescription, so notice may be given under s 119 in any way the Minister thinks appropriate (s 119(2)). It may be notified orally (s 119(3)). The section does not indicate explicitly whether notice may be given in more than one way and at more than one time. However provided the statutory purpose of fairly informing the visa holder is served, there is no reason why the requirement of notification which is substantive rather than formal could not be met by both written and oral notification. It may be that the notification could be found in more than one document. So an initial document may, at the request of the visa holder, be the subject of greater elaboration. At a practical working level a degree of flexibility is important. The requirement of notification of grounds of possible cancellation is not a requirement for delivery of some form of pleading which may then be the subject of strict construction and technical criticism. The overall purpose to be served by s 119 is procedural fairness and it is that which informs the construction and application of the section." 38 What the notification must do is communicate the nexus between the grounds of cancellation and the information giving rise to those grounds so that the visa holder understands why the relevant information is relevant to the cancellation: Tien v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 405 at 417. 39 Counsel for the applicant submits that Mr Lysons, as the Minister's delegate, failed to provide sufficient particulars of the possible grounds for cancellation under s 116(1)(g) and Reg 2.43 and concentrated on the ground of breach of a work condition under s 116(1)(b) of the Act, the ground subsequently abandoned by the respondent in these proceedings. 40 I do not agree with the applicant's contention. The applicant was given notice in terms of Form 1111. That form identified that there were two alternate grounds relied upon: s 116(1)(b) and if applicable, reg 2.43(1)(k). The applicant had the terms of the relevant statutory provisions available to him. In the context of the questions which Mr Lysons asked, the applicant's responses and the documents which were before them, the words "has breached no work condition on visa, intention to work, not a genuine tourist" meant and were understood by the applicant to mean, that the information available to the delegate with which they had been dealing raised in the mind of the delegate that there were grounds under the particular alternate statutory heads for cancelling the visa because the applicant "has breached 'no work' condition on visa, [had] intention to work [if allowed entry], not a genuine tourist". 41 The applicant does not say he did not understand what was put to him by Mr Lysons. Section 119(1)(a) was satisfied. 42 The applicant was invited to show within the specified time that those grounds did not exist or that there was a reason why the visa should not be cancelled. That is evidenced by Pt B of Form 1111. The applicant in fact made a response which is recorded in the inspector's report and Pt B of the Form 1111. Section 119(1)(b) was satisfied. 43 Contrary to the submission of the applicant, there was evidence that the requirements of s 119 of the Act had been complied with; it is to be found in the Form 1111 and the written report of Mr Lysons, the correctness of the contents of which documents was never challenged by the applicant. 44 There is no ground made out under s 476(1)(a) and s 119(1)(a) or (b) of the Act for setting aside the decision of the delegate to cancel the visa.

Rios v Minister for Immigration & Multicultural Affairs

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Judgment (10 paragraphs)

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Legislation Cited (3)

Cases Cited (12)

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