(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.
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."
31 Counsel for the Minister contended that the reference in s 116(1)(d) to Subdiv C is to be taken not as a reference to the whole of Subdiv C, but merely as a reference to a ground or "trigger" for cancellation of a visa to be found in Subdiv C. If the legislature had intended to accomplish only this, it is difficult to see why it chose to use the wording it did in s 116(1)(d). It would have been simpler to specify as a ground for cancellation in s 116 the fact that a visa holder had failed to answer a question in an application form or a passenger card, given an incorrect answer in an application form or a passenger card, or given a bogus document. It may have been necessary to make provisions mirroring those in ss 99 and 100, so as to extend the meaning of the word "answer" to cover all information provided, and so as to make it clear that incorrectness in an answer is not confined to deliberate incorrectness. Instead, the legislature chose to rest the ground in s 116(1)(d) on liability of the visa to be cancelled under Subdiv C. The reference to Subdiv C in s 116(1)(d) is therefore intended to import all of the provisions of Subdiv C into the ground in s 116(1)(d), except those applicable only to someone who has entered Australia and been immigration cleared.
32 Sections 107, 108 and 109 are therefore inapplicable, as they contain procedural safeguards applicable only to visa holders who have entered Australia and been immigration cleared. In the case of a person who has entered Australia but has not been immigration cleared, those procedural steps are replaced by the ones set out in Subdiv E. Section 119 (found in Subdiv E) provides that, if the Minister is considering cancelling a visa under s 116, the Minister must notify the holder that there appear to be grounds for cancelling it, give particulars of those grounds and of the information on which they are based, and invite the holder to show within a specified time that the grounds do not exist or there is a reason why the visa should not be cancelled. Unlike s 107(1)(b), s 119 does not provide specifically for a written response to the notice. Indeed, pursuant to s 121 (also found in Subdiv E), the invitation is to specify whether the response may be given in writing, at an interview or by telephone. Subdiv E contains s 122, which provides its own power for regulations to prescribed time limits in respect of steps. Unlike s 107(1A), there is no default provision requiring that a reasonable time be allowed. Section 125 makes specific provision for a non-citizen in immigration clearance who is not taken into questioning detention. In such a case, the period within which he or she may respond to the invitation is to end when, or before, he or she ceases to be in immigration clearance.
33 For the ground specified in s 116(1)(d) to be established, there must be an application form, conforming to the definition in s 97. The definition has two elements. The first element is that the form is one on which a non-citizen applies for a visa. The second is that s 45(2) allows that form to be used for making the application. Section 45(2) does not itself refer to forms, much less to forms which non-citizens are allowed to use for making applications. Section 45(2) simply provides for the making of regulations prescribing the ways for making applications for various visas. The regulations made under s 45(2) are found in the Migration Regulations. Regulation 1.18 provides that the Minister may, in writing, approve forms for use in making an application for a visa. Regulation 2.07(1)(a) provides, among other things, that, for the purposes of s 45 of the Migration Act, if an application is required for a particular class of visa, the approved form (if any) to be completed by an applicant is one of the matters set out in the relevant part of Sch 1 to the Regulations. Schedule 1 sets out classes of visas together with certain conditions, including fees. In each case, there is a reference to a form by its number, but in no case is the form itself set out. Item 1218 relates to a short stay (visitor) (class TR) visa. Clause (1)(a)(ii) specifies for the class of persons of whom Mr Sandoval is one form 48 or 48R.
34 Counsel for the Minister tendered in evidence a blank form 48R with a sheet attached, on which is a stamp indicating that the form has been approved by a delegate of the Minister on 1 May 2000. This is the form used by Mr Sandoval. It is a form of A4 paper size, four pages long, with two additional pages of information. As I have said in describing Mr Sandoval's form, it has spaces in which an applicant is expected to fill in information in response to questions. In some cases, an applicant is invited to "If insufficient space, attach additional details" or "If insufficient space, attach an additional statement." In the case of the question "Why do you want to visit Australia? (include details of any dates that are of special significance to your visit)", a space of two lines is provided, and there is no invitation to expand by attaching additional details or an additional statement.
35 In order that it can be said that the application form completed by Mr Sandoval is an "application form" within the definition of that term in s 97 of the Migration Act, it is necessary to make certain assumptions. First, it is necessary to assume that a form referred to by a number in an item in Sch 1 to the Migration Regulations, is a form "set out in the relevant Part of Schedule 1", for the purposes of Reg 2.07. It is then necessary to assume that approval by a delegate of the Minister of a particular form, pursuant to reg 1.18, is a prescription of the way for making an application for a particular visa, for the purposes of s 45(2). I note that the word "prescribed" is defined in s 5(1) of the Migration Act as meaning "prescribed by the regulations". I also note that s 495 of the Migration Act provides that the Minister may, in writing, approve a form for the purposes of a provision of the Migration Act in which the expression "approved form" is used. The expression "approved form" is not used in s 45(2). (An example of a provision in which that expression is used is s 105(1), set out above.) The process of prescribing by means of regulations is a well-established one, to which are attached safeguards, including parliamentary scrutiny, pursuant to Pt XII of the Acts Interpretation Act 1901 (Cth) ("the Acts Interpretation Act"). There might be a real question as to whether a regulation can, in effect, delegate the prescription of the form, which the regulations require to be used, to a minister. Section 49A of the Acts Interpretation Act might be relevant to that question. There might be a question whether the power, found in s 496 of the Migration Act, for the Minister to delegate to a person any of the Minister's powers under the Migration Act extends to the delegation of the power to approve a form, so as to cause that form to be prescribed for the purposes of s 45(2), as a way of making an application. These questions were not argued in the present case in anything like the manner that would be necessary for their determination. In particular, no reference was made to the question whether there is a provision in the Migration Act designating the approved form as a disallowable instrument, so as to subject it to the scrutiny of parliament pursuant to s 46A of the Acts Interpretation Act. In the circumstances, I am prepared to make the assumptions necessary to hold that the form completed by Mr Sandoval was an "application form" as defined in s 97 of the Migration Act, and therefore was an application form for the purposes of s 101.
36 The concentration of the argument in the present case was upon the question whether it was open to Mr Vella to find that Mr Sandoval had given an incorrect answer in the form in response to the question "Why do you want to visit Australia?" For this purpose, counsel for the Minister argued that the contents of the statutory declaration of Ms Fenner must be taken into account, by reason of s 99. Counsel for the applicants did not submit to the contrary.
37 It is apparent that Mr Vella did not find that there was falsity in the information provided by the applicants that Mr Sandoval intended to improve his English, and that he intended to translate a book or books into Spanish. What troubled Mr Vella was that Mr Sandoval had not revealed the true position. It is significant that Mr Lim, Mr Vella's superior, was present at that part of the interview in which Mr Vella gave to Mr Sandoval notice that Mr Vella was considering cancelling the visa. At that time, as Mr Vella says, he told Mr Sandoval that documents provided with the application for the visa and parts of the correspondence indicated that Mr Sandoval had attempted to mislead the Embassy into granting him the visa. Mr Lim's view of the situation was that these documents showed that Mr Sandoval was not in Australia only to visit and translate, but that there were other reasons, like his relationship with Ms Fenner. Again, when the interview resumed for Mr Sandoval to give his response, Mr Lim was present. According to Mr Vella's affidavit, Mr Lim expressed the view that the problem was that Mr Sandoval had not told the whole truth. He had only said what he thought he should say in order to get the visa. Mr Vella's written account of the grounds for cancellation of the visa referred to attempts to mislead the Embassy to facilitate the grant of the visa. According to his evidence, when he handed to Mr Sandoval the record of the decision to cancel the visa, he told Mr Sandoval that discrepancies between the real reason and what is said to the Embassy were a reason to cancel a visa.
38 This case was therefore argued largely on the question whether, in the circumstances, it was open to Mr Vella to be satisfied that Mr Sandoval had given an incorrect answer in his application form, within the meaning of s 101(b) of the Migration Act. At the heart of this issue is the question whether an answer can be incorrect by reason of the omission of information. There is no authority bearing directly on that question. The present provisions, including s 101, were inserted into the Migration Act by the Migration Reform Act 1992 (Cth). Prior to that, the comparable ground for cancellation of a visa under the Migration Act referred to the making of "a statement which is false or misleading in a material particular". See s 11A of the Migration Act inserted by the Migration Legislation Amendment Act 1989 as it stood prior to amendment by s 11 of the Migration Reform Act 1992 (Cth). As I have said, the current provisions refer simply to "incorrect" answers, and are accompanied by provisions making it clear that there is no requirement of a mental element (such as an intention to mislead or deceive) and that information provided by another person is taken to be part of the answer. Counsel for the Minister argued that an incomplete or misleading answer, although literally true, is incorrect. In particular, he submitted, that an answer to the question "Why do you want to visit Australia?" that does not convey the principal, or predominant, purpose of a visit to Australia is incorrect. An applicant for a tourist visa, who specifies tourism as the reason for his or her desire to visit Australia, but who really intends to work in Australia should say so, the argument went, so that the application can be assessed according to the true situation.
39 If the law were as counsel for the Minister argued, it would give rise to many difficulties. Some of those difficulties are readily apparent when consideration is given to the process of applying for a visa of the type held by Mr Sandoval. They arise from the fact that people are often motivated to take action by many reasons. These reasons may be of varying degrees of importance, or may differ in their proximity to or remoteness from the making of a decision to take the action.
40 The criteria to be satisfied at the time of application for the kind of visa described as a subclass 676 tourist (short stay) visa are found in Sch 2 to the Migration Regulations. They include, in cl 676.211, the following:
"The applicant:
(a) seeks to visit Australia, or remain in Australia as a visitor:
(i) for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, child, brother or sister of the applicant; or
(ii) for a purpose other than a purpose related to business or medical treatment".
It is significant that this criterion refers to "a purpose". It is true that, by s 23(b) of the Acts Interpretation Act, the singular includes the plural, but a single purpose of one of the kinds described is all that is required. A simple illustration is enough. A person may apply for a visa, having two purposes. One may be to visit a relative. Another may be to engage in sightseeing. Such a person, reading the criteria for the visa carefully, will realise that it is only necessary to specify one of the purposes in order to obtain the visa. It could hardly be contended that the omission of the other purpose would result in a determination that an incorrect answer has been given.
41 In Saravanan v Minister for Immigration & Multicultural Affairs [2001] FCA 938, Heerey J dealt with a case concerning an application for a tourist (short stay) visa. The visa applicant in that case wished to investigate opportunities to start a business in Australia. At
[20], Heerey J drew attention to the existence of permanent, temporary and bridging visas as separate categories. His Honour said:
"So the concept of a visa which permits a person to enter and remain in Australia for a particular purpose but only for a limited period is fundamental to the Act's visa system (see s 31(1) and (2))."
At [21] - [23], his Honour went on:
"The visa in question here, the Tourist (Short Stay) visa, is quintessentially a temporary one, so the language of cl 676.211 has to be construed in the light of that circumstance and also in a way which is consistent with the structure of the Regulations.
'Purpose' in cl 676.211(a) is speaking of what the visa applicant proposes to do during the period for which the visa is to be granted. Of course the applicant may have in mind another purpose as to what he or she wants to do after the end of the visa period but that must necessarily involve another visa - or perhaps naturalisation. That is not the relevant purpose with which s 676.211(a) is concerned.
It may be true, as counsel for the Minister submitted, that activity which is preparatory to the establishment of a business, such as market research or raising finance, is 'related' to that business. However in the present context the business must be one which is to be carried on during the period of the visa."
It could hardly be contended that, in limiting the answer to the question "Why do you want to visit Australia?" to disclosing a purpose to come and familiarise himself with Australia would have caused the visa applicant in that case to have given an incorrect answer. The purpose that must be disclosed in answer to that question is a purpose that will satisfy the criteria for the visa.
42 Similarly, it is possible that a person applying for a tourist (short stay) visa might be considering embarking on a long-term relationship with an Australian citizen. It is possible that such a person would wish to come to Australia for a short period, to see whether he or she would be suited to living in Australia, or to see whether he or she would be suited to living with the other person, or for both purposes. Again, it is hard to see that a disclosure of the purpose of familiarising the applicant with Australia could be said to be an incorrect answer. As in the case of the person proposing to investigate business opportunities, the visa applicant giving a limited answer tailors the answer to the nature of the visa. Given that all that is possible is a short-term visit, it is not surprising that a reason appropriate to a short-term visit should be given.
43 It might be thought that the size of the space provided on the form 48R for an answer to the question "Why do you want to visit Australia?" is an indication that all that s 101 requires is a brief description of the reason. If that were the case, it would be clear that a correct answer to the question did not require a list of all the reasons that an applicant might have, at whatever level of abstraction they might exist. At best, however, the form is a mere creature of the Migration Act and cannot govern its construction. Even if it could be said that the view of the delegate who approved form 48R was that only a short form of reason was required, the view of such a person cannot govern the construction of the legislation. Section 101(b) directs attention to the question, not to the space provided for answering it. I do not rely at all on the size of the space in the form in seeking to determine whether an incorrect answer within s 101(b) of the Migration Act can be an answer that omits information. On the other hand, it is legitimate to note that an applicant is not invited to attach an additional statement or details, when giving an answer to the question "Why do you want to visit Australia?" The only invitation extended is to concentrate on significant dates. By contrast, in relation to other questions, the invitation to attach further material is given. This suggests that there are some questions to which complete or exhaustive answers are required, but that the question "Why do you want to visit Australia?" is not one of them. The form of the question, when compared with other questions, gives some guide as to whether an answer that omits information is to be considered an incorrect answer.
44 Counsel for the Minister sought to place reliance on the explanatory memorandum that accompanied the Bill which became the Migration Reform Act 1992 (Cth). Such extrinsic material can be used as an aid in the construction of legislation even in the absence of ambiguity in the legislation. See s 15AB(1) of the Acts Interpretation Act. The relevant passage from the explanatory memorandum is as follows:
"Persons who mislead the Department when making applications
30 The Bill inserts a new structured legislative scheme into the Act to deal with non-citizens who provide incorrect information about their circumstances in an application. The onus is on all non-citizens to ensure all questions asked in an application form or passenger card are answered accurately. The primary information requested will relate to identity, eligibility to come to Australia, personal circumstances such as health, character and prior exclusions or deportations from any country. The onus is on the non-citizen to advise the Department of changes in circumstances in situations which would affect the grant of a visa or immigration clearance.
31 Where it is found that information which should have been disclosed but has not there is a procedure which will allow the non-citizen to correct the misinformation and to explain why his or her visa should not be cancelled. There will be situations prescribed in regulations which will mitigate the cancellation procedure and there will be situations set out in regulations which will make it obligatory for cancellation to take place. If a person is found to be an unlawful non-citizen the decision will be prospective, and not retrospective as in the past. The decision that a person is an unlawful non-citizen will be reviewable on the merits.
32 The proposed amendments aim to simplify current arrangements under Section 20 and to prevent non-citizens from benefiting from the failure to disclose or provide accurate and truthful information in a visa application."
45 It must be remembered that the legislation that was being replaced was concerned with the making of a statement that was false or misleading in a material particular. Counsel for the Minister relied on the use of the word "mislead" in the heading of this part of the explanatory memorandum. He contended that the explanatory memorandum revealed an intention not to change the substance of the previous legislation. This is not clearly apparent. What the memorandum heralded was "a new structured legislative scheme", aimed "to simplify current arrangements". The emphasis in par 30 is on the provision of incorrect information, ensuring that questions are answered accurately. In par 32, there is a reference to "failure to disclose". The problems of construction to which the explanatory memorandum gives rise are at least as difficult as the problems of construction of the legislation itself, if not more so. Unless an explanatory memorandum gives a clear guide as to the intention behind the drafting of legislation, it is an unsafe aid. In the present case, I find the explanatory memorandum of no use in construing the legislation.
46 The legislative history itself is a safer guide. The fact that, when enacting s 101, the legislature abandoned the use of the term "misleading" and opted to use "incorrect" suggests that whether an answer passes the test of s 101(b) is to be assessed on what is in, rather than what is omitted from, the answer. The same construction is suggested by the retention of the phrase "false or misleading in a material particular" in s 234(1)(b) and (c) of the Migration Act. (Section 234(1) creates offences, including the offence of making a statement that is false or misleading in a material particular and the offence of delivering a document containing such a statement. The offences can be committed in various situations, including applying for a visa.) Such a construction is in line with the object of the legislation, considered as a whole. An applicant for a visa is expected to give an answer to each question which is correct. Thus, if a question seeks exhaustive information (for instance "Do you have a spouse, de facto, any children, or fiance who will NOT be travelling with you?"), then an omission of any such person will be an incorrect answer. A more open-ended question, such as "Why do you want to visit Australia?" requires an answer that is accurate so far as it goes, but will not be considered to be incorrect because it omits information.
47 In Jalal v Minister for Immigration & Multicultural Affairs [2000] FCA 207 (2000) 60 ALD 779, Finkelstein J dealt with a case in which an applicant for a visa had failed to provide information in response to a question in his application form. The application form required details of all countries where the applicant had lived in the previous ten years. It also required the applicant to state whether he or she had been excluded from or required to leave any country. The applicant in that case did not mention that he had lived in India. At [14], his Honour said:
"Mr Jalal does not deny that he provided incorrect information in his application form and during the course of his interview with an immigration officer. Thus he accepts that he did not comply with s 101. However, Mr Jalal points out that before he obtained his visa he had acknowledged having given incorrect information and he had supplied the correct information."
48 The issue in that case was whether it was open to the Minister to cancel the visa under s 116(1)(d). His Honour held that the power to cancel a visa was not available where the visa
was granted in the knowledge that the applicant had provided incorrect information. At [30], his Honour said:
"the obvious intention of the new provisions is to ensure that the Minister or his department is not misled in relation to an application for a visa."
49 Counsel for the Minister relied on this statement as an indication that s 101(b) of the Migration Act should be construed so as to include cases in which a misleading answer is given. The single sentence of Finkelstein J would be the slenderest of authority for such a proposition, if indeed it was authority at all. His Honour was not directing his attention to the issue. The question involved in Jalal was very clearly a question that required complete information, so that the omission of a fact led to the conclusion that the answer was incorrect. That issue was dealt with by concession and was not even considered by his Honour. On appeal, in Minister for Immigration & Multicultural Affairs v Jalal [2000] FCA 1370 (2000) 102 FCR 63, the Full Court did not discuss the question either. The judgment of the Full Court turned on the legislative history. The application for the relevant visa had been made at an earlier date than the coming into operation of the provision that became the present s 101 of the Migration Act. The Court dismissed the appeal, but apparently on a basis not argued before Finkelstein J.
50 I am of the view that the question "Why do you want to visit Australia?" requires an applicant to give a reason, disclosing a purpose, genuinely held by the applicant, falling within the criteria for the visa concerned. It does not require an applicant to set out all of the reasons that he or she may have for wishing to come to Australia. As long as the reason specified in the answer is a genuine one, the answer cannot be said to be incorrect for the purposes of s 101(b) of the Migration Act. Any attempt to cancel the resulting visa on the basis that the applicant in fact had a purpose or purposes other than the one specified in the answer must be dealt with on a ground other than that specified in s 116(1)(d). An obvious one is the ground found in reg 2.43(1)(j) of the Migration Regulations, prescribed in s 116(1)(g).
51 For these reasons, I am of the view that it was not open to Mr Vella, as a matter of law, to be satisfied that Mr Sandoval had given an incorrect answer to the question "Why do you want to visit Australia?" in his application form, upon the basis that the answer omitted information that Mr Vella considered to be relevant. Unless he was satisfied that the answer itself, or the material supplied with it, contained incorrect information, he could not lawfully have found that the ground specified in s 116(1)(d) was made out. In purporting so to find, Mr Vella made an error of law, being an error involving an incorrect interpretation of the applicable law. Such an error is a ground for judicial review under s 476(1)(e) of the Migration Act.
52 According to his affidavit, Mr Vella told Mr Sandoval in his interview that the statutory declaration of Ms Fenner was not true when it said that she and her husband wanted Mr Sandoval to stay with them in their home, because her husband did not live in that house and was living with another woman. Counsel for the Minister contended that, in this respect, Mr Vella found that Mr Sandoval had given an incorrect answer to the question in response to which he provided this information.
53 The only evidence Mr Vella had with respect to Ms Fenner's husband was that, in December 2000, when Mr Sandoval and Ms Fenner met, Ms Fenner was separated from her husband, who was living with another woman. There was no indication that he was living at an address different from that of Ms Fenner, although this might have been a reasonable inference from the information that the couple had separated and the husband was living with another woman. The information provided in Ms Fenner's statutory declaration, made in late April 2001, was to the contrary, in so far as it referred to an invitation "to stay with us" and "to stay … in our home". The information provided in Mr Sandoval's application for a visa was also to the contrary. In two places, he gave the same address for Ms Fenner and her husband. Mr Vella does not appear to have asked Ms Fenner about this issue when he spoke to her on the telephone, and does not appear to have taken up the invitation to speak to her husband. Nevertheless, the issue was an issue of fact and was one for Mr Vella to decide. It was open to him to infer that the separation that existed in December 2000 involved separate houses and that this state of affairs continued at the date of Mr Sandoval's arrival in
Australia. The grounds in s 476 of the Migration Act would not permit the Court to interfere with such a decision.
54 It is clear, however, that this question of fact was not the basis on which Mr Vella made his decision that the ground specified in s 116(1)(d) was made out. His concern, and that of Mr Lim, was with the incompleteness of Mr Sandoval's answer to the question "Why do you want to visit Australia?" There is no indication that he relied on the alleged falsity of the statement with respect to Ms Fenner's husband's address in concluding that the ground in s 116(1)(d) was made out, or that he would have cancelled Mr Sandoval's visa on that ground if he had not reached his conclusion about the incorrect answer to the question "Why do you want to visit Australia?" Although he swore an affidavit for the purposes of this proceeding, Mr Vella did not say that his conclusion about the falsity of the information as to Ms Fenner's husband's address was a ground for cancellation of the visa. Nothing in the document Mr Vella gave to Mr Sandoval suggests that he paid any regard to it in deciding whether the ground specified in s 116(1)(d) was established.
55 For these reasons, I am of the view that the applicants have made out their ground of review in relation to the reliance by Mr Vella on the ground specified in s 116(1)(d) of the Migration Act.