the arguments of counsel and my reasoning
41 Mr Godwin says that the question adjacent to paragraph (a) reflects a misdirection by the Tribunal of itself, away from the only correct issue before it. He submitted that the only decision which the Tribunal could make and the only relevant question that the Tribunal could ask itself for the purposes of s 108(b) was whether or not there was non-compliance by the applicant in the way described in the notice, that is, in respect of the particulars of the possible non-compliance with the notice being the matters set out at [28] above, the falsity being limited to the assertion that the applicant never lived with Ms Ali as husband and wife.
42 The error of the Tribunal according to Mr Godwin was that it saw its function as deciding whether the applicant ever gave incorrect answers or incorrect information to the Department up to the time of the grant of the visa, by reason of the extension by s 99 of the reach of s 101 beyond the application, originally made on 31 May 2000.
43 It can be readily accepted that the cancellation of a visa, especially one granting permanency of residence, is a serious matter. It is against that background that one comes to ss 107 to 109 of the Act. The provision of incorrect or false information and the use of "bogus" documents being the matters, broadly stated, that are covered by ss 101, 102, 103, 104, 105 and 107(2) are also potentially very serious matters. It is easy to understand why the Parliament required some precision and specificity in the notice: s 107(1)(a). Particulars of non-compliance with ss 101, 102, 103, 104, 105 or 107(2) are what is called for. One does not give particulars of non-compliance with s 101 by saying (as was submitted by Mr Reilly) that s 101 has not been complied with. It is the specifics (the particulars) of that non-compliance that are required to be given.
44 Thus, I reject the submissions of Mr Reilly that the identification of the relevant section number not complied with is an adequate provision of particulars for s 107(1)(a).
45 As a matter of ordinary English usage the words "in the way described in the notice" is apt to pick up what has been and was required to be particularised under s 107(1)(a).
46 Thus, I accept the submissions of Mr Godwin that in exercising its powers of review under the Act, the Tribunal must decide as the jurisdictional fact (cf Eshutu and SHJB) whether there was non-compliance by the visa holder in the way described in the notice, being the manner particularised in the notice.
47 I do not, however, agree entirely with Mr Godwin's submissions. I do not agree that a proper reading of the notice confines the Tribunal to a decision on the incorrectness or correctness of the information provided and as set out at [28] and (a) to (e) of [31] above merely by reference to deciding whether the applicant and Mr Ali never lived together as man and wife.
48 Whilst the author of the letter used the phrase "never lived with Ms Ali as husband and wife", the use was in the context of describing what the evidence that had been received by the Department was said to indicate. Read in a commonsense way, the particulars of the information earlier referred to in the letter were not only that they had never lived together, but that at the time those pieces of information were sent they did not live together. Thus, I think that the particulars provided for the purpose of s 107(1)(a) included the assertion that as at the time those communications were made and that information provided the applicant and Ms Ali did not live together as husband and wife.
49 The Tribunal did ask itself a question broader than that required of it under s 108(b), bearing in mind the form of the notice. It is necessary to ascertain what findings were made in order to see whether, within the wider scope of the question posited by the Tribunal for itself, it indeed answered the question which was properly before it: that is whether or not the various provisions of information to which I have referred were inaccurate at the time that they were made. It is necessary to recall that neither the delegate nor the Tribunal called in aid s 104 of the Act, which may have, had it been employed, given a somewhat greater flexibility to the temporal specifics of fact finding.
50 At [61] of its reasons the Tribunal made a finding that on all relevant versions of events Ms Ali did not live at 1/66 Chapel Street between October 1998 and May 2000. This falsified an address given by the sponsor at question 79 on the spouse application form. This, however, was not one of the matters identified in the notice.
51 At [82] of its reasons the Tribunal began to deal with where Ms Ali was living between May 2000 and August 2002. It was common ground between the applicant and Ms Ali that Ms Ali did not live with the applicant during the time that he was in Pakistan, being three months in late 2001 to early 2002 and when Ms Ali was out of the country in New Zealand in March 2002. The Tribunal continued:
But he has consistently provided information to the Department between May 2000 to July 2002 that asserts, or confirms the claim, that he lived with the sponsor at Chapel St between May 2000 to February 2002 and Haldon St from February 2002 to the grant of the visa (July 2002). The sponsor and her witnesses (mother, cousin, friend and former tenant of the review applicant, Mr Ashraf) deny this. The review applicant, of course, has his witnesses in support both at the hearing and other statutory declarations from friends on the file. There is also a great deal of material provided by the sponsor that gives addresses apparently at odds with the claim that she lived with the review applicant at the Chapel St and Haldon St addresses.
[the "sponsor" is a reference to Ms Ali, and the "review applicant" to the applicant]
52 This positing of the provision of information does not identify with specificity the provision of information referred to in the notice but I would take it that what is described in the notice is included in the reference in the above passage.
53 Ms Ali gave evidence that she said that she lived over the whole of the period (apart from the agreed periods of time referred to above) with her mother and younger brother at Punchbowl. She did stay that she stayed one week at Chapel Street when her mother was in New Zealand at the end of December 2000, and in May 2002 on her 19th birthday. She spent in a night in a hotel in the city with the applicant after having told her mother that she was staying with friends. At [87] the Tribunal made the following findings after referring to the evidence:
In the light of all of this material and the claims made at the hearing by Ms Rodriquez and Mr Barkat I find that the sponsor stayed overnight with the review applicant at Chapel St and more particularly at Haldon St many more times than she conceded at the hearing. And I accept that she held herself out as being married to the review applicant for much of the period of time between May 2000 to July 2002, at least when meeting his friends and acquaintances. But the sponsor concedes this point. Her claim is that the review applicant encouraged her to put documents into the Department which were false as to where she was living and that he falsely claimed (as did she) that she was living with him all of the time between May 2000 and July 2002, when she was not. She states that her residence between these dates remained that of her mother's, Arthur St Punchbowl.
54 At [90] and [91] of its reasons the Tribunal said the following:
[90] What follows from the material I have discussed so far is that I do not accept the sponsor and the mother's claims that the sponsor never lived with the review applicant at the Chapel and Haldon St addresses, but always lived at Arthur St between May 2000 and July 2002. But finding in this way does not mean that the sponsor always lived with the review applicant, as he claims. The key to this case in my view lies in the remarks of the cousin - that the sponsor lived a double life. Her mother did not regard her to be married to the review applicant during 2000, 2001 and much of 2002. Over this period of time her family by and large regarded the couple as being in a relationship of boyfriend/girlfriend. The sponsor may well have presented herself to friends of the review applicant as his marital partner but I accept her claim that she did not present the relationship this way to most of her family and friends.
[91] On this point I note the evidence given by the sponsor at the hearing recorded at paragraphs 56 to 60 above. I accept this evidence as to the character of the relationship between the couple. Even though I do not accept it as accurate as to the amount of time the sponsor spent at night at either Chapel St or Haldon St. I find that the sponsor considered that she was in a genuine "relationship" with the review applicant until her return from New Zealand in April 2002. And I accept that the couple were reconciled in May 2002. At the interview with the Department on 2 July 2002, in my view, the sponsor considered that the relationship was sound. She said at the hearing that as part of this reconciliation in May 2002 the review applicant had asked for her hand in marriage. I take this odd remark to mean that she hoped that her double life would be resolved by the holding of a further (religious) marriage ceremony which her family would attend. In this way her life, divided for some years through her relationship with the review applicant, would become whole again.
55 The Tribunal then, in the following paragraphs, descended to some particularity as to provision of information. At [92] the Tribunal stated the following:
At a number of points of time during the processing of the visa the review applicant gave information to the Department that stated, or supported the claim, that he and the sponsor were living together on a permanent basis at Chapel St and then Haldon St. These occasions were 28 November 2000, 6 December 2000, 6 September 2001, 3 October 2001, 15 May 2002 and 10 July 2002. The information provided is discussed in more detail at paragraphs 20 to 30 above.
56 Mr Godwin emphasised the change of language in this paragraph referring to the emphasised words "on a permanent basis" Mr Godwin says that this is an important change from the expression living as "husband and wife". I think this placing too much emphasis on the precise terms used: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-272. I do not think that the Tribunal was directing itself to any different question than the substance of the notion of the applicant and Ms Ali "living as husband and wife".
57 Of the occasions referred to in [92] of the Tribunal's reasons only the 6 December 2000 occasion is common to the notice; 6 December 2000 is the date of the statutory declaration in which the applicant said the following, amongst other things:
Our relationship is genuine and true, we have a lot of things in common and currently we are living together as husband and wife at the above stated address.
58 However, the Tribunal only felt able to make certain limited findings. In [95] it stated the following:
…On the basis of this material I find that the sponsor resided with her mother during 2001 and 2002 for periods of time when the review applicant said that she was residing with him. Exactly when she was sleeping at Arthur St and when at the other addresses I cannot say. Just as I come to no finding, for instance, as to precisely when the mother had met the review applicant prior to January 2002. But I do find that for significant periods of time in 2001 and 2002 the sponsor did not reside with the review applicant but lived at her mother's place. And that these periods of time were outside of the review applicant's trip to Pakistan in October 2001 to January 2002, and the sponsor's trip to New Zealand in March 2002. It follows from this finding that the review applicant, on my view of these matters, provided incorrect information to the Department on this issue. He is in breach of s 101 of the Act as extended by s 99.
59 The difficulty with these findings is that they do not direct themselves to the occasions referred to in the notice; except that it can be said that to the extent that findings were only made in relation to 2001 and 2002 there is no finding about any particular occasion in 2000.
60 On the proper construction of s 107 and 108 and limiting itself to s 101 (as it was conceded by Mr Reilly to be the proper approach given the approach of the delegate) the Tribunal failed to direct itself to answering the appropriate question called for by s 108 (b).
61 It may be that there can be no specific answer to the question as to whether the particularised information was inaccurate when given; on the other hand, based on the evidence sufficiently precise findings may be possible. Without the application of s 104 to make more flexible the fact finding, that difficulty may or may not be able to be cured. However, as it stands, I do not think that the Tribunal appropriately directed itself to its task and has not answered the appropriate question, to the extent it can be answered, dictated by the terms of the notice under s 107(1)(a).
62 Therefore, on this basis I do not think that it was, on the findings made, open the Tribunal to move to the exercise of the power under s 109.
63 In these circumstances, I conclude that the Tribunal has purported to exercise a power which it was not as yet authorised to exercise and in so doing acted beyond jurisdiction.
64 I will order that the parties bring in short minutes conformable with my reasons including an order under O 29 of the Federal Court Rules providing for a separate determination of the issues concerning the Tribunal decision.
65 Subject to any appeal on the question I have decided, there will be a need to examine the delegate's decision. I would be minded if an application were made and subject to hearing the parties, to grant leave to appeal. However, that would not necessarily prevent the second stage of the hearing taking place. The parties should consider how they wish to proceed in this regard.
I certify that the preceding sixty five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.