The applicant's submissions
11 Although the decision of the Minister to cancel the visa was a "privative clause decision" within the meaning of s 474(2) of the Act, the applicant proceeded on the basis of submitting that the decision was not to be regarded as having been made under the Act as, by reason of the failure to comply with the rules of natural justice upon which she relied, there was a failure to exercise jurisdiction: Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 at 45‑46.
12 In relation to the ground of review that the decision was not a bona fide attempt to exercise the power given by the Act, the applicant relied upon the exception to the operation of a privative clause decision found in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615.
13 The applicant submitted that there had been a failure by the Minister to comply with the rules of natural justice in that he took into account information provided to him in an Issues Paper, without giving the applicant a chance to respond to such information. That information was information said to have been presented to the Minister in a misleading and incorrect manner. The submission was developed in the following manner.
14 The applicant accepted that in the Notice of intention to cancel her visa dated 4 July 2002 she had been given the opportunity to comment on the following matters to be taken into account by the Minister:
"h You [the applicant] falsely advised on form 47 (signed by you on 27 December 1996) that you were single, when at that time you were involved in a defacto relationship with Mr Adriey Kireyev, the father of your then three month old child.
h At interview on 27 August 1997, you provided false and misleading information about your relationship with the fathers of your two children. You stated that you did not know the identity of the father of your first child and that the father of your second child had left you when you were pregnant. Both of these statements were admitted to be false at a subsequent interview on 28 June 2000.
h You provided misleading information in relation to your visa application stating that you only lived with your mother while you were also living with your step father and defacto partner. This included the provision of misleading information about your living arrangements in the form of letters received from the Dniprovsky District State Administration of the City of Kyiv (dated 22 November 1996 and 5 February 1997) and from the State Communal Enterprise for Maintenance of Lodgement Resources of Dniprovskiy District Council of People's Deputies City of Kyiv (dated 27 May 1998 and 6 December 1999).
h In support of your visa application you submitted a document purporting to be a letter from the Ministry of the Interior in the Ukraine as to the bad character of Andrie Kireyev which was fraudulent.
h You declared in your visa application form that you understood that you must inform the Australian mission of any changes in your circumstances affecting your application. You failed to advise of the change in the birth registration of your daughter, Nadiya on 7 October 1998 when you registered Nadiya's father as Kireyev Andriey Anatoliyovych. This was a material change in circumstances as the birth certificate provided to us previously showed that she did not have a registered father.
h You failed to advise that Nadiya was not living at 9 Cheyabinskaya Street, Flat 203.
h You declared in your visa application that there were no legal or other reasons which could delay your departure to Australia when you knew that claims to access or custody made by Andrie Kireyev in relation to your daughter Nadiya could do so."
The applicant responded through her solicitors to this notice on 21 August 2002.
15 On 19 November 2002 the Department of Immigration and Multicultural and Indigenous Affairs prepared a paper entitled "Issues for Consideration of Possible Cancellation of Olga Sokourenko's Visa under S.501A of the Migration Act 1958". The Issues Paper was submitted to the Minister for his consideration. Provision was made at the end of the Issues Paper for the Minister's decision. That part of the paper to be signed by the Minister provided:
"I have considered all relevant matters including an assessment of the Character Test as defined by s 501(6) of the Migration Act 1958, my Direction under s 499 of that Act, the non‑citizen's comments (if any), and the national interest, and have decided that:
Please delete whichever is NOT applicable:"
There then followed three alternative provisions or formulations. Two of those provisions were deleted and the provision which remained, and became, the Minister's decision was that:
"I reasonably suspect that Ms Sokourenko does not pass the character test and Ms Sokourenko has not satisfied me that she passes the character test and I am satisfied that cancellation of her visa is in the national interest. Accordingly, I have decided to exercise my discretion to set aside the original decision of the AAT to revoke the visa cancellation, so I hereby cancel Ms Sokourenko's visa under section 501A of the Migration Act 1958."
16 No point was taken that the manner in which the Minister had made his decision did not comply with s 501A of the Act in that the Minister had not set out his reasons for making his decision: cf Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281 at [54]‑[55]. I was informed that subsequent to the making of the Minister's decision, particulars of his decision had been supplied to the applicant but that neither party wished to refer to or rely upon those reasons.
17 The Issues Paper contained a section headed "Reasonable suspicion". Thereunder the following matters were set out:
"4. There is a reasonable suspicion that Ms Sokourenko does not pass the character test on account of her past and present general conduct.
5. On 27 December 1996 Ms Sokourenko falsely advised on form 47 that she was single, when at that time she was involved in a defacto relationship with Mr Adriey Kireyev, the father of her then three month old child.
6. At interview on 27 August 1997, Ms Sokourenko stated that she did not know the identity of the father of her first child and that the father of the second child had left her when she was pregnant. At an interview on 28 June 2000, Ms Sokourenko admitted that both of these statements were false.
7. The AAT found that Ms Sokourenko provided false and misleading statements regarding her relationship with the fathers of her children:
'I do however find from both documentary evidence of interviews between migration officials and the secondary visa applicant and from her own oral evidence before the tribunal that she did make both false and misleading statements as to the positions in relation to the respective fathers of her two children, Vira and Nadia, and that she did so, not as a result only, as she would have it, shame in relation to her position as a twice unwed mother at ages 14 and 19 respectively, but with a view to avoiding possible complications in relation to migrating with her two daughters.'
8. Ms Sokourenko provided misleading information in relation to her visa application stating that she only lived with her mother while she was also living with her step father and defacto partner. This included the provision of misleading information about her living arrangements in the form of letters from the Dniprovsky District State Administration of the City of Kyiv (dated 22 November 1996 and 5 February 1997) and from the State Communal Enterprise for Maintenance of Lodgement Resources of Dniprovsky District Council of People's Deputies City of Kyiv (dated 27 May 1998 and 6 December 1999).
9. While the AAT found that Ms Sokourenko did not make any false or misleading statements in relation to evidence before the tribunal, the AAT also found:
'I find myself to be unable to be satisfied on the balance that the secondary visa applicant was living in a de facto relationship with Andrea Kireyev, either at the date she completed her visa application or at any time and conversely I am not satisfied that she could not at all times be fairly described as a single girl living with her mother.'
10. In support of her visa application Ms Sokourenko submitted a document purporting to be a letter from the Ministry of the Interior in the Ukraine as to the bad character of Andrie Kireyev. This document was confirmed to be fraudulent.
11. Officers of the Embassy contacted the head of the Dniprovsky District Department in Kiev who advised that while a document bearing the registration number and date had been sent to Ms Sokourenko in relation to a court summons, the form of the letter, content and stamp were fraudulent. The head of the department advised that they did not write this letter. Ms Sokourenko was asked at interview on 21 June 2001 whether she had provided any other fraudulent documentation and whether this particular letter was fraudulent. Ms Sokourenko stated that she had not provided any fraudulent information and stated that the letter was not fraudulent. Officers of the Embassy again sought to verify the genuineness of the document and were advised by the person whose signature purportedly appears on the document that it was fraudulent.
12. Ms Sokourenko indicated that she was aware of the declaration in her signed visa application form that she must inform the Australian mission of any changes in her circumstances affecting her application. Ms Sokourenko failed to advise of the change in the birth registration of her daughter, Nadiya on 7 October 1998 when she registered Nadiya's father as Kireyev Andriey Anatoliyovych. This was a material change in circumstances as the birth certificate provided previously showed that she did not have a registered father. Further, Ms Sokourenko failed to advise that Nadiya was not living at 9 Cheyabinskaya Street, Flat 203.
13. The AAT found that Ms Sokourenko did know that the possibility of parental claims made by Mr Kireyev might delay both her and Nadiya's departure to Australia and that she should have notified the Australian mission of the changes in the particulars in Nadiya's birth certificate.
14. Ms Sokourenko declared in her visa application that there were no legal or other reasons which could delay her departure to Australia when she knew that claims to access or custody made by Andrie Kireyev in relation to her daughter Nadiya could do so."
15. On 22 March 2002 the decision of the delegate was set aside by the AAT and the matter remitted to the Department with a direction that Ms Sokourenko's visa not be cancelled on the ground that she is not of good character under s.501 of the Act. The AAT was satisfied that Ms Sokourenko was not of good character:
'On the basis that the secondary visa applicant provided false information to migration officials in support of her visa application, the Tribunal finds that she does not pass the character test under s501 of the Act.'
16. While the Tribunal was satisfied that Ms Sokourenko was not of good character, it found that the interests of Ms Sokourenko's two biological children (Nadiya and Vera) outweighed the other primary interests. The AAT's findings are at Attachment A.
17. Based on the above information it is open to you to reasonably suspect that Ms Sokourenko does not pass the character test on the grounds of her past and present conduct as defined under s501(6)(c)(ii)."
18 In its decision of 22 March 2002 the Tribunal made a number of findings including the following:
"12. I find myself to be unable to be satisfied on balance that the secondary visa applicant was living in a de facto relationship with Andrea Kireyev, either at the date she completed her visa application or at any later time and conversely I am not satisfied that she could not at all times be fairly described as a single girl living with her mother.
13. The relationship with Mr Kireyev was, it seems, a strange one as well as an abusive one. In her evidence before the Tribunal the secondary visa applicant accepted that she had a relationship with Mr Kireyev, but described it as being lovers. She said they had no common property, that he did not support her or her child, that they slept sometimes at her mother's apartment and sometimes at his mother's apartment, a few doors away in the same street, but that they kept their clothes and possessions at the homes of their respective mothers. She said they did not live together except that in 1998 her mother asked her to live for 1˝ months at his mother's place so Mr Kieyev wouldn't 'scandalize us'.
14. The secondary visa applicant was not contradicted in any of these statements when cross‑examined and I do not find that she made any false or misleading statement in this regard in her visa application or that she provided bogus documents in connection with it, in this regard, or that she failed to notify the Australian mission of any relevant change in circumstance, in this regard.
15. I do however find from both the documentary evidence (Exhibit 1, T40 and T98) of interviews between migration officials and the secondary visa applicant and from her own oral evidence before the Tribunal that she did made both false and misleading statements as to the positions in relation to the respective fathers of her two children, Vira and Nadia, and that she did so, not as a result only, as she would have it, of shame in relation to her position as a twice unwed mother at ages 14 and 19 respectively, but with a view to avoiding possible complications in relation to migrating with her two daughters.
16. I am unable to find that the letter from the Ministry of the Interior, dated 6 December 1999, directed to Mr Kireyev's bad character was or is a bogus document. Such evidence as there is from both the secondary visa applicant and her aunt, Elena Stacenko, would suggest that the letter provided to the Australian mission (Exhibit 1, T81) was obtained in the same form from the Ministry and it is possible on their evidence of a subsequent visit to the Ministry, upon being informed the letter was believed false, that it is rather the case that the letter should not have been issued by the officer who did so, for transmission to the Embassy, but rather only for local court purposes or perhaps not at all. This may explain the rather ambiguous subsequent undated letter from the Ministry to the Embassy, (Exhibit 1, T12) that the letter with the registration number of 6 December 1999 'was our response to citizen Sokourenko regarding her application and we recommended her to reply to the court.' It is unnecessary however for me to make a finding in this regard as the original contention in respect of this document was not pursued on the hearing of this application by the respondent."
19 The applicant submitted that although she had been given the opportunity to comment on the matters raised in the notice of 4 July 2002, she had not been given the opportunity to comment on the matters which had been placed before the Minister in the Issues Paper in a way which was misleading. The applicant's complaint centred around the manner in which the material in the Issues Paper was presented and the failure of the Minister to comply with the rules of natural justice by affording the applicant the opportunity to address that material so presented.
20 Put shortly, the applicant submitted that she had not been given the opportunity to respond to the following misleading information:
· The statement that the Tribunal had found that she provided misleading information in relation to her visa application stating that she only lived with her mother whilst she was also living with her stepfather and defacto partner (in par 8 of the Issues Paper). This was not the Tribunal's finding in par 12 of its decision (par [18] above).
· The statement that the Tribunal had found that the applicant had provided misleading information about her living arrangements in the form of certain letters (in par 8 of the Issues Paper). This was not the finding of the Tribunal in pars 13 and 14 of its decision (par [18] above).
· The statement that the Tribunal had found that the applicant had submitted a false document in support of her visa application purporting to be a letter from the Ministry of the Interior in the Ukraine as to the bad character of Mr Andriey Kireyev (in pars 10 and 11 of the Issues Paper) whereas the Tribunal, in par 16 of its decision (par [18] above), had been unable to find that the letter was a bogus document.
· The recitation of the Tribunal's findings at par 12 of its reasons (par [18] above) regarding the applicant's living arrangement were presented in a form which indicated that they were adverse to the applicant (in par 9 of the Issues Paper) when in fact they were not.
21 The applicant also submitted that the author of the Issues Paper had made selective use of the findings of the Tribunal by only including findings in the Issues Paper which were adverse to the applicant with the result that the author was not acting bona fide and that this lack of bona fides was to be attributed to the Minister who based his decision upon the material contained in the Issues Paper.
22 It was submitted that the failure to comply with the principles of natural justice in the respect submitted had the potential to affect the outcome of the Minister's decision. However, it was submitted that it was not necessary to show a causal relationship between the failure to comply with the rules of natural justice and the outcome of the Minister's decision, it being sufficient that there was a failure to comply with the rules of natural justice with a consequent jurisdictional error.