VKAW v Minister for Immigration & Multicultural & Indigenous Affairs

Reasoning of the Tribunal 8 The Tribunal noted that the applicant's bridging visa had been cancelled pursuant to s 109 of the Migration Act 1958 (Cth) ("the Act") on the basis that she had not complied with s 101 and s 103 of the Act by providing incorrect information and bogus documents in relation to her studies and other matters. Section 109 empowers the Minister to cancel a visa where he decides that the holder of the visa has not complied with certain provisions in the Act. Section 101 provides that a visa applicant must not give incorrect answers to questions in the visa application. Section 103 provides, inter alia, that a non‑citizen must not give an officer or the Minister a bogus document, that is a document which purports to have been, but was not issued, in respect of the person or a document which is counterfeit. The Tribunal considered whether non‑compliance with s 101 and s 103 of the Act in connection with the applicant's application for a student visa were also grounds for cancellation of the associated Bridging A Visa. 9 The Tribunal noted that the applicant had applied for a student visa and was granted a bridging visa that remained valid for the period of the processing of her application for a student visa. If that application was approved the bridging visa would lapse on the grant of a student visa but if it was refused the bridging visa would run for a further 28 days after deemed notification of the refusal of the student visa. The Tribunal took the view that the form used by the applicant to apply for a student visa constituted an application for a Bridging A Visa. The Tribunal noted that in response to one of the questions on that form the applicant supplied a statutory declaration and other material from a person who said she was her guardian, which the applicant admitted was not correct, and she also supplied a bogus attendance record from the NSW English College. 10 The Tribunal therefore found that the applicant had presented incorrect information and bogus documents to the Department in relation to her application for a Bridging A Visa, which constituted grounds for cancellation of that visa. The Tribunal then noted that s 109 of the Act required that the criteria set out in reg 2.41 of the Migration Regulations be considered. Regulation 2.41 provides: "For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed: (a) the correct information; (b) the content of the genuine document (if any); (c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document; (d) the circumstances in which the non‑compliance occurred; (e) the present circumstances of the visa holder; (f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act; (g) any other instances of non‑compliance by the visa holder known to the Minister; (h) the time that has elapsed since the non‑compliance; (j) any breaches of the law since the non‑compliance and the seriousness of those breaches; (k) any contribution made by the holder to the community. Note: Under s.109 of the Act, the Minister may cancel a visa if there was non‑compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa." 11 The Tribunal then reasoned: "29. In considering the above criteria, the Tribunal notes the following. The review applicant supplied incorrect information about her studies during the period of her previous student visa in providing a bogus statement of attendance at NSW English College and about her financial status. There was no genuine document available as the information in the documents was false. Had the delegate known that the information was incorrect at time of lodgement, she/he would not have granted the student visa nor would the associated bridging visa have been granted. The non‑compliance occurred in circumstances where the review applicant had not complied with study requirements on her previous visa and wished to stay longer in Australia. The present circumstances of the review applicant are that she has not studied since mid 1998. She is approximately six months pregnant without the support of a partner or any income. She has indicated that she would like to remain in Australia, in detention if necessary, until she has the baby. After initially giving the Department incorrect information about her identity, the review applicant has now provided candid responses to questions from the Department about her student and associated bridging visa application. It has now been more than 3 years since the bridging visa application was made. The review applicant has acknowledged that she thought that her application for the student visa was refused and that she no longer held a valid visa. The review applicant was taken into custody as a result of alleged shoplifting and has admitted to a Department officer that she took a comb. Apart from donations of clothing to charity, the review applicant was unable to provide any other examples of contributions to the community. 30. Weighing up the nature of the breach as against the review applicant's circumstances, the Tribunal is satisfied that it is appropriate for the Bridging A visa to be cancelled."

The review 12 The applicant's grounds of review do not set out any grounds which entitle the applicant to an order of review in accordance with Pt 8 of the Act or to relief pursuant to s 39B of the Judiciary Act 1903 (Cth). Nevertheless, I have considered the material placed before the Court to determine whether it is possible to discern any grounds of review or errors in reasoning or procedure, which might be open to the applicant in accordance either with Pt 8 of the Act or s 39B of the Judiciary Act. I have not been able to do so. In my opinion, the Tribunal's reasoning does not disclose any error of law or failure to comply with proper procedure or process. 13 In any event, the decision of the Tribunal is a "privative clause decision" for the purposes of s 474 of the Act. That provision was the subject of extensive consideration by the Full Court of the Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. Although the five members of the Court delivered separate judgments, they were in agreement that s 474(1) is to be interpreted in accordance with the principles set out by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616. Those principles establish that a decision to which a privative clause, such as s 474, applies cannot be the subject of review or consideration other than in the limited circumstances where: · the decision‑maker did not make a bona fide attempt to exercise the power committed to the decision‑maker; · the decision did not relate to the subject‑matter of the relevant legislation; · the decision was not reasonably capable of reference to the power given to the decision‑maker. 14 The applicant has not identified or raised any grounds which might give rise to any of the three circumstances considered by Dixon J in Hickman. Further, I am satisfied that the reasoning of the Tribunal is such that none of the circumstances considered by Dixon J in Hickman arise in the present circumstances. 15 In substance the applicant seeks to have the matter and issues that were before the Tribunal reconsidered on their merits. Such an approach is not open under the Act. The applicant may be said to be presently in difficult personal circumstances but those matters of themselves are insufficient to give rise to any ground for review of the decision of the Tribunal. The application will be dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate: Dated: 24 January 2003 Counsel for the Applicant: The applicant appeared in person