VIOLA CHIORNY v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Sub-division D of Division 3 of Part 2 of the Act (ss 116 - 118) deals with the power to cancel visas and in particular with the circumstances when a visa held by a non-citizen may be cancelled. The Minister may cancel a visa if satisfied that any circumstances which permitted the grant of the visa no longer exist (s 116(1)(a)). Sub-division E (ss 119 - 127) deals with the procedure for cancelling visas under Sub-division D. The following is a summary of those provisions of Sub-division E which are relevant to the issues that have been raised in this case. If the Minister is considering cancelling a visa under s 116 the Minister must notify the visa 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 those grounds do not exist or that there is a reason why it should not be cancelled (s 119(1)). The Minister must give to the holder particulars of information the Minister considers - (a) would be the reason, or a part of the reason, for cancelling a visa; and (b) is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and (c) was not given by the holder; and (d) was not disclosed to the holder in the notification under s 119; and must ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation and invite the holder to comment on it (s 120(1), (2)). The Minister may cancel a visa at any time after notice about cancellation has been given under s 119 and after either the holder responds, the holder says that he or she does not wish to respond or the time for responding passes (s 124(1)). The Minister may not cancel a visa after inviting the visa holder to comment on information and before either of the last mentioned events occurs. (s 124(2)). When the Minister decides to cancel a visa, the visa holder must be notified of the decision and the ground for the cancellation (s 127(1), (2)) but failure to give notification of a decision does not affect the validity of the decision (s 127(3)). It is fair to say that the combined effect of the provisions of ss 119, 120 and 124 is to prohibit the cancellation of a visa in circumstances in which ss 119 and 120 have not been complied with. Two issues raised by this application are: first, whether the decision-maker followed the procedures set out in ss 119 and 120 before making the decision to cancel the applicant's visa and second, whether the facts as found by the decision-maker were capable of supporting the conclusion that the provisions of s 116(1)(a) applied to the case. In an affidavit in support of the application sworn on 19 December 1996 the applicant says that she came to Australia with her boyfriend Yuri Ablim (Ablim) to see what Australia was like and at that stage only wished to see Australia. She says that she had been studying nursing in Israel and had completed the first stage of a course which gave her a diploma but did not make her a fully qualified nurse. She was enrolled to undertake the second stage of the course but as there was a break between the two courses she decided to visit Australia. After passing through Customs she went to collect her luggage when she was approached by an officer in uniform and taken into a large room. At the same time Ablim was escorted by another officer into the same room where they were separated and could not hear or speak to each other. She says the first question she was asked was whether she and Ablim knew each other. She says further that she was asked many questions by the officer but her English is very poor and she was only able to understand a few words and could only grasp the simplest questions. No interpreter was present and she used gestures to try to tell the officer that she did not understand. She tried to answer the simple questions as best she could. She was asked many questions about her relationship with Ablim particularly whether she knew him and whether he was her husband. At this stage she was extremely concerned that she would somehow get Ablim into trouble so she said that she had simply flown on the same plane as him. Her belongings were searched, a photograph was found of herself and Ablim in her luggage. She says that the questioning continued for two hours until nearly 1.00am and that at the same time that she was being questioned Ablim was also being questioned. The two officers concerned had discussions with each other from time to time. She was then taken by another officer to a small room. Ablim remained behind in the corridor. The new officer arranged for an interpreter to be available on the telephone. She was questioned as to whether she knew Ablim and asked whether she had come to Australia to live permanently. The officer said that if she told the truth there would be a much better outcome. She apologised and says she was frightened that she would get Ablim into serious trouble although she did not know why. When asked if she wanted to stay she answered truthfully and said she did not know, she only wanted to see what Australia was like first. At no stage either before she went into the small office or whilst she was there did the officer tell her that her visa was going to be cancelled and at no stage was she asked why the visa should not be cancelled. The whole interview in the small office took about 20 minutes and during that time the officer asked her the same questions constantly whilst looking through her passport. She was then told by the officer to wait in the corridor and left the room. Ablim was then asked into the office and after about half an hour the officer left the office and Ablim told her that her visa was going to be cancelled. She then joined Ablim in the office and they were given forms to fill in to obtain a one month visa. She says the officer told them what to write on the forms via the interpreter who was still on the telephone and helped them fill in the forms. After the forms were filled in their passports were stamped as cancelled and they then had permission to leave the airport. She says that she was informed by Ablim that the officer had spoken to Ablim's sister who was waiting at the airport in the arrival section. At the trial of the proceeding the applicant gave evidence through an interpreter. I formed the impression that the applicant was an intelligent young woman who understood the questions that were put to her through the interpreter and who gave prompt answers which were responsive to the questions asked. Her evidence had about it the ring of truth. In her evidence-in-chief the applicant said that when first interviewed (that is before there was an interpreter present) she did not understand what was being asked but she did understand that she was asked something about Ablim but did not know what. She said that she did not recall what she was asked about Ablim because she did not understand what was said. After arrangements had been made for an interpreter the Immigration officer asked her questions about whether she knew Ablim and what kind of relationship they were in. Her response to these questions was that she knew him and that he was her friend. When asked if they lived together she said that they had lived together in Israel and when asked about her intentions in relation to staying in Australia she said that she had not arrived to stay. Her recollection was that at the end of the conversation with the Immigration officer she was asked to leave the room and wait outside and she was called back after 20 to 30 minutes. She and Ablim were then both seated at the table and the officer left. Ablim explained to her that their visas had been cancelled. They were then given forms to fill in for a one month visa. The Immigration officer did not tell her of any information that had been obtained from Ablim or any other person and did not tell her that she did not believe her to be a genuine visitor. She did not recall if the Immigration officer had said anything about believing that she would overstay her visit. When shown a document headed "Notification of Cancellation under s 116 of the Migration Act 1958" addressed to her and dated 29 September 1996, the applicant denied having seen the document and said it was not given to her. She did however say that she found it later at home among her papers and belongings. She said that she had become aware that her visa had been cancelled when told by Ablim and denied that at any stage she was asked to comment on anything that the Immigration officer told her. The applicant was cross-examined at considerable length and much of the cross-examination was directed to questions relating to her credibility. She agreed that she and Ablim did not go through the primary Customs line together but went in separate queues. After some equivocation she agreed that the reason for doing this was that she thought it might cause problems for Ablim if they went through together and her explanation for that was they had different visas and Ablim was coming as a permanent resident. When it was put to her that the Customs officer who first approached her asked whether she knew Ablim she said that she did not remember that kind of question and that she did not understand what she was being asked. She denied that both she and Ablim had denied to the Customs officer that they knew each other. She agreed that the Customs officer had looked through the luggage and that there had been some discussion after discovery of some clothing and a photograph but she said that she did not understand the questions that she was asked. On the subject of filling in the form for a one month visa the applicant asserted that this had been done with the help of the interpreter on the telephone. The only other witness called by the applicant was Mr Demetri Hintze who was the interpreter engaged through the Telephone Interpreter Service on the evening of the 28 September 1996. Mr Hintze could not recall much of the event. He had made a note that he had been contacted at 7 minutes to 12 midnight. His recollection of the conversation was that it involved a Ms Chiorny and an officer who was introduced simply as Megan and who told him that she had two people who had just arrived from Israel who were Russian speakers and did not speak much English. She said she needed to interview them and asked for his help which he agreed to provide. Megan then interviewed both Ms Chiorny and a man who he knew simply as Yuri and at the conclusion of the interview Megan said "I'm not satisfied that what you're saying is true and correct and therefore I am going to cancel the visas" but he was unable to recall whether that statement was made to one or other or both of the interviewees. His recollection was that he was told by Megan that she needed to interview two people and that there were two interviews, one after the other. He was unaware of whether both were present or within earshot during the respective interviews. During the interview with the applicant, Megan had asked her questions about her relationship with Yuri. He remembered her saying in Russian that "He is my boyfriend", "He is my fellow" which he agreed was a Russian equivalent to the term "de facto" although it was not a much used expression and has a romantic attachment rather than necessarily involving cohabitation. In response to a question as to whether he had translated any conversation about the applicant and Ablim being allowed to stay if they applied for another visa the witness said: From what I recall, Megan told me, "I'm going to replace your visa with a one month visa each. This is not the worst scenario that could have eventuated. The worst scenario would have been for me to have you put into detention and then deported, but I'm not going to do that, I'm going to give you a chance to apply for another visa". That's to the best of my recollection about this. The witness had no recollection of assisting the applicant and Ablim to fill in any form and said that he did not think that he had done so. It was clear to me that Mr Hintze had very little detailed recollection of the interviews with the applicant and Ablim. Apart from noting details of the time when he was called, he made no notes of the conversation. He said that in 1996 there was a period when he was getting 15 to 20 calls a day but at present it is usually between 5 and 10 calls a day. The witness could not reasonably be expected to recount much in the way of detail of a particular conversation some 5 months earlier but to the extent that he was able to be specific I accept his evidence as probative. The only evidence called on behalf of the respondent was from Megan Cooper. Ms Cooper was the Immigration officer who interviewed both the applicant and Ablim in the small office and was the person identified by Mr Hintze as Megan. Her affidavit of 13 February 1997 follows very closely a report which she wrote on 5 October 1996. She says that she wrote this report by reference to handwritten notes made at the time of the interviews but she has since been unable to locate those notes. Under cross-examination she agreed that the report was a reproduction of her hand-written notes and included everything that was in those notes. She further agreed that the report was accurate and comprehensive and that she did not leave out of it any relevant information or notes of what occurred. The report commences with a narration of what was told to Ms Cooper by Customs officers who first interviewed the applicant and Ablim and then recounts what is said to have been a brief discussion which she had with Ablim during which language difficulties were encountered as a result of which she felt it was necessary to obtain an interpreter to continue the discussion. However, before inviting the applicant and Ablim into her office she spoke to Ablim's sister who was waiting in the arrivals area at the airport. The report deals with Ms Cooper's interview with the applicant in these terms: Chiorny provided the following information: . That her relationship with Ablim was that of "friend" and that she had known him for about one year. I then advised Chiorny that I was aware that Ablim is her defacto spouse and that it would be in her own best interests to be completely honest in her responses. . She then told me that Ablim was her boyfriend and that they had lived together for the past twelve months; . She said that the reason why they had gone to separate primary officers was because she "did not want to complicate matters for Yuri". . She gave the same reason when asked why she had applied for a visitor visa and not been included in Yuri's application to migrate. . When asked about the address she had listed on her IPC Chiorny said that she did not intend to stay at the address that she had listed but did not want to put the same address as Ablim even though she intends staying with him; She maintained that she will return to Israel after the expiry of her visitor visa in order to complete her studies in nursing.

Both parties were then interviewed together where they confirmed that they have a defacto relationship and intended to continue that in Australia. Ablim was then advised that I intended to cancel his visa under s 116(1)(A) as he had failed to disclose his relationship with Viola. Chiorny was also advised that I intended to cancel her visa under s116(1)(A) as the circumstances which permitted the grant of the visa no longer exist. Both were given the opportunity to provide any reason why their visas should not be cancelled. Neither could provide any valid reason why I should not take this course of action although both were concerned about their immediate prospects of entering Australia. Both were then advised that I would consider an application for a border visa for a short term stay in Australia which would allow them the opportunity to make an application for residence together should they decide to do so. Both granted border visas class 773 valid for stay until 291096. Both were advised that if they decide to do so they must make an application to remain permanently prior to expiry of this visa. In her evidence-in-chief at the hearing of the application Ms Cooper said that after interviewing the couple separately she had interviewed them together and put to the applicant the information that Ablim had provided namely that Ablim had said that she (the applicant) could learn English in Australia and resume her nursing studies in Australia and if she likes Australia they would register their marriage and apply for her to stay permanently. She further says that she put to the applicant at the outset of her initial interview what Ablim's sister had told her which according to the report was that the sister knew that Ablim was travelling with a friend, that she knew of the relationship between them and that both were intending to stay with her in Australia. The witness was however unable to explain the absence of any reference to these matters in her report and when she was asked to comment on the applicant's suggestion that she had failed to give the applicant any indication at all that her visa was in jeopardy the witness disagreed. The following exchange between counsel for the respondent and Ms Cooper appears at pp 79-80 of the transcript: MR KEELY: It is suggested that you have failed to give her any indication at all that her visa is in jeopardy or was in jeopardy at the time. What do you say as to that? THE WITNESS: I disagree with that, your Honour. MR KEELY: But what indication did you give her? THE WITNESS: I advised the couple together or Ms Chiorny that I intended to cancel her visa and asked her if there was anything that she wanted to say or anything that I should take into consideration before or any reason why I shouldn't proceed with that course of action, your Honour. MR KEELY: And was there any response forthcoming? THE WITNESS: No, no reasons were provided why I shouldn't continue with that course of action. It is clear from the evidence that Ms Cooper does not assert that in the process of considering whether to cancel the applicant's visa she notified the applicant that there appeared to be grounds for cancellation nor did she at that stage give particulars of those grounds and of the information because of which the grounds appeared to exist; further, it necessarily follows that the applicant was not invited to make any response during the process of consideration. Ms Cooper's evidence both in her report and in Court, is that after she had advised the applicant that she intended to cancel the visa, the applicant was given the opportunity to provide any reason why the visa should not be cancelled. There was clearly no compliance with s 119(1). Furthermore, to advise a visa holder that the visa was to be cancelled because "the circumstances which permitted the grant of the visa no longer exist" is not, in my opinion, sufficient to comply with the requirement that the visa holder be given the particulars required to be given under ss 119(1)(a) and 120. The provisions of ss 119 and 120 are not difficult to follow. They set out clearly the steps required to be taken when consideration is being given to the cancellation of a visa. The Act makes provision for review of such a decision in circumstances where there has been a failure to observe procedures that are required by the Act to be observed in connection with the making of the decision. This case is clearly such a case. I find as a fact that the Minister's delegate Ms Cooper when considering cancelling the applicant's visa did not comply with the procedures required by ss 119 and 120 to be observed. At its highest Ms Cooper's evidence suggests only that any token compliance with s 119(1) occurred after the decision to cancel was made. Further, the relevance of the information obtained from Ablim and his sister was never explained (s 120(2)(c)). The primary ground of relief is established on the evidence of the respondent's own witness. In the circumstances it is unnecessary to make any definitive findings as to matters in respect of which there is a conflict between the evidence of the applicant and Ms Cooper. One can however readily understand that a non-English speaking foreign national upon being confronted by the circumstances which have been related shortly after her arrival in this country may not necessarily recall every detail of what occurred and what was said. It seems highly likely that the provisions of ss 119 and 120 have been crafted for the specific purpose of ensuring that in such circumstances the visa holder is accorded fair treatment and that no decision is made in the Minister's name until the matters in issue have been fairly put to and understood by the visa holder. The Immigration officer conducting the interview is in a dominant position and it is a matter of serious concern that a proper record was not kept of everything that was said at the time. It should not be beyond the wit of those charged with the administration of the Act to devise a system whereby a record is made of such interviews either by audio or video recording or in writing so that not only the affected parties but also the Court can with some confidence know precisely what has occurred. In the present case the Immigration officer's record was less than satisfactory. As the application clearly succeeds on the first ground pleaded in the application it is not strictly necessary to deal with the other grounds raised by the applicant, but I will nevertheless add these observations. In this case where there has been a failure to observe provisions of the Act which must be observed before the power to cancel can be exercised, it must follow that the decision to cancel the visa is an improper exercise of the power to cancel conferred by the Act (ground 2) and accordingly, cannot be a decision authorised by the Act or regulations (ground 4). The decision-maker found that the applicant had been living in a de facto relationship with Ablim in Israel and that she intended to continue in that relationship in Australia. From those facts she inferred that the applicant was not a genuine visitor. Such an inference was at least open in a case where there had clearly been a deliberate attempt by the two persons in question to conceal from the authorities their true relationship. If this was in fact the reasoning which Ms Cooper applied then all of those matters should have been explained to the applicant in detail as required by ss 119 and 120. It follows from the conclusion I have reached that the decision to cancel the applicant's class 676 visa on 29 September 1996 should be set aside. The Minister concedes that the applicant has remained in Australia lawfully since 29 September 1996. There is no need to make any further order concerning the decision. The Minister has sufficient statutory powers to deal with the situation as it has now developed. The Minister must pay the applicant's costs including any reserved costs but not including the costs of the proposed witness Peter Bruce to whom I make reference in the following addendum to these reasons. ADDENDUM On 14 February 1997 the applicant's solicitors caused a subpoena to be issued requiring the attendance of Mr Peter Bruce to give evidence at the hearing of the application. Mr Bruce is a member of the Immigration Review Tribunal (IRT) and was involved in that capacity in an application made to the IRT by the applicant on 30 September 1996. That application, which sought the review of the decision to cancel the applicant's visa, was clearly misconceived as the decision was not one capable of being reviewed by the IRT. In opening the applicant's case counsel indicated that it was her intention to call Mr Bruce to give evidence as to what had occurred at a preliminary hearing which he convened in the IRT. The thrust of the proposed evidence seems to be that the interpreter Mr Hintze, who incidentally was engaged to interpret at the preliminary hearing, said something at that hearing about the events on the night of 28-29 September 1996 which counsel foreshadowed he could no longer recall. In the course of the hearing on 20 September 1996, Mr N. Styant-Browne, a solicitor acting for Mr Bruce and the IRT, appeared by leave and moved that the subpoena served on Mr Bruce be set aside. After hearing submissions I ordered that the subpoena be set aside and that the applicant pay the costs of Mr Bruce's attendance at Court. I indicated that I would give written reasons in due course. Section 373(1) of the Migration Act 1958 provides that a member of the IRT has, in the performance of his or her duties as a member, the same protection and immunity as a member of the Administrative Appeals Tribunal (AAT). Section 60(1) of the Administrative Appeals Tribunal Act 1975 provides that a member of the AAT has, in the performance of his duties as a member, the same protection and immunity as a Justice of the High Court. It follows therefore that a member of the IRT has, in the performance of his duties as a member, the same protection and immunity as a Justice of the High Court. I was referred in argument to the statement in 17 Halbury's Laws of England (4th Ed) at para 236 that "a judge of the Superior Courts may refuse to give evidence as to judicial proceedings which have taken place before him", which is the basis for the proposition that as a Justice of the High Court could not be compelled to give evidence concerning a judicial proceeding before that Justice the same immunity would be enjoyed by an IRT member in relation to the performance of his function as such a member. I was not, however, referred to s 16(2) of the Evidence Act (Cth) 1905 which provides that a person who is or was a judge in an Australian or overseas proceeding is not compellable to give evidence about that proceeding unless the court gives leave. Having regard to the provisions of s 373(1) of the Migration Act 1958, it is my opinion that an IRT member is not compellable to give evidence in this Court about a proceeding before the member in the IRT without the Court's leave. It necessarily follows that such a member is compellable with the leave of the Court. In the present case no such leave was specifically sought although had the issue been raised I have no doubt that counsel for the applicant would have sought leave. In the circumstances my decision to set aside the subpoena, insofar as it was based on the broad statement from Halsbury was unsound. Had an application for leave been made I would have been required to consider the matter on its merits. As this was not done my decision should not be regarded as having any weight. It was also submitted that s 377 of the Migration Act 1958 precludes an IRT member from giving evidence concerning information obtained by the member in the performance of his functions or the exercise of his powers. The relevant parts of s 377 are: 377 (1) This section applies to a person who is or has been: (a) a member of the Tribunal; (b) ... (c) ... (d) ... (2) This section applies to information or a document if the information or document concerns a person and is obtained by a person to whom this section applies in the course of performing functions or duties or exercising powers under this Act. ... (5) A person to whom this section applies shall not be required: (a) to produce in a court any document to which this section applies; or (b) to divulge or communicate to any court any information to which this section applies; except where it is necessary to do so for the purposes of carrying into effect the provisions of the Act. It is clear that in the case of an application to review an IRT decision under s 476 it would be necessary for the purposes of carrying into effect the provisions of the Act for an IRT member to disclose to the Court information to which s 377 applies. Without such information the review process would be entirely frustrated. But it seems to me that the policy considerations evidenced by the overall provisions of s 377 indicate that proceedings in the IRT should as a general rule remain confidential. In my opinion it was not necessary for the purpose of carrying into effect the provisions of the Act in relation to the present application for Mr Bruce to divulge to this Court information disclosed to him in the exercise of his functions in relation to the applicant's abortive application to the IRT. I certify that this and the preceding 20 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney

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