Walton v Philip Ruddock, The Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT Background 1 The applicant is a citizen of the United States. He arrived at Melbourne Airport on 21 November 2001 holding an "Electronic Travel Authority (Visitor)" visa issued under sub-class 976 of sch 2 of the Migration Regulations 1994 (Cth) ("the Regulations"). A holder of the visa is entitled to travel to, and enter, Australia on multiple occasions within twelve months from the grant of the visa and to remain in Australia on each occasion for a period not exceeding three months. Relevantly for present purposes, a primary criterion for the holding of the visa was that the applicant state "an intention only to visit Australia temporarily for tourism purposes". 2 An officer of the Department of Immigration and Multicultural Affairs ("the delegate") interviewed the applicant at the airport. The delegate formed the view that there may be a ground for the cancellation of the visa under s 116 of the Migration Act 1958 (Cth) ("the Act"). She stated the ground as follows: "You have an intention to reside permanently in Australia. You are carrying documents to support your intention to reside permanently in Australia." 3 The delegate afforded the applicant an opportunity to comment on the ground in the course of an interview with her. The delegate also interviewed Ms Jennifer Hart, an Australian citizen and the applicant's partner, who was waiting at the airport to meet the applicant. 4 Early in the afternoon of 21 November, the delegate decided to cancel the applicant's visa under s 116(1)(g) of the Act and reg 2.43(1)(k) of the Regulations. Section 116(1)(g) of the Act, relevantly, provides that the Minister may cancel a visa if he or she is satisfied that: "a prescribed ground for cancelling a visa applies to the holder." 5 Regulation 2.43(1)(k) of the Regulations prescribes as a ground for cancellation, in the case of the holder of sub-class 976 visa: "…that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit Australia temporarily for tourism purposes;" 6 The record of the delegate's decision to cancel the visa ("the cancellation decision") states that the reason given by the applicant why the ground of cancellation does not exist was that he is a genuine visitor who intends to depart Australia after a stay of approximately one month. The applicant is also recorded as saying that he is unsure "when or if" he will reside in Australia. 7 The record also stated that the evidence and reasons why grounds for cancellation exist are as follows: "The visa holder is carrying evidence to support an intention to reside permanently in Australia. These include: - shipment receipt of personal effect from USA to Australia - letter dated October 2001 to friend Ann stating moving to Australia 19.11.01 to lodge permanent residence application. I place greater weight on the evidence than on his assertions that he intends a short temporary stay." 8 In setting out any "other reasons" given by the visa holder as to why the visa should not be cancelled the record stated "he is a genuine visitor". 9 The delegate's assessment of the relevant factors was: "The visa holder is a non-genuine visitor." 10 Finally, the record of the cancellation decision states that in weighing up the grounds for cancellation, evidence available and other factors the reasons for the decision are: "- shipment receipt of personal effects from USA to Australia;