Wang v Minister for Immigration & Multicultural & Indigenous Affairs

INTRODUCTION 1 This application seeks orders under s 39B of the Judiciary Act 1903 (Cth) declaring that a decision of a delegate of the respondent made under s 131 of the Migration Act 1958 (Cth) (the Act) on 2 October 2001 is invalid and of no effect, and setting aside that decision. The application was lodged with the Court on 22 October 2001, so the Act as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) which came into force on 2 October 2001 applies: see Schedule 1 Item 8(2)(b) of that amending Act. Consequently, if the applicant demonstrates some error on the part of the delegate in the making of the decision of 2 October 2001, it will be necessary to address the application of the privative clause contained in s 474 of the Act. The respondent does not dispute that the Court has jurisdiction to make the orders sought under s 39B of the Judiciary Act. Section 475A of the Act recognises that jurisdiction, and s 476 of the Act does not exclude it: s 475A(b) of the Act. 2 The applicant is a national of China. On 1 March 2001 he was granted a Temporary Business Entry (Class UC) Subclass 457 Business (Long Stay) Visa. The basis of the applicant's application was that he was a person sponsored by an Australian business, the Marden Basketball Centre Pty Ltd, to establish a China Shao Lin Kung Fu Academy and to teach martial art classes at its Mars Sporting Complex. The visa entitled him to work for that business as a sporting coach, and to make multiple entries to Australia until 1 March 2002. Marden Basketball Centre Pty Ltd was approved for a Standard Business Sponsorship, and for a Nomination by a Business Sponsor in respect of the applicant, also on 1 March 2001. 3 The application for the visa was made by the applicant on 26 February 2001. It was accompanied by 23 documents or categories of documents, in general attesting to the applicant's professional skills, qualifications and experience as a martial arts instructor. 4 On 18 July 2001, following the receipt of certain information, a delegate of the respondent cancelled the applicant's visa under s 128 of the Act. It was appropriate for that cancellation decision to be made under s 128 of the Act because, at the time, the applicant was no longer in Australia, having departed Australia on 13 July 2001. It was, therefore, not necessary for the applicant to be given notice of the intention to cancel the visa prior to its cancellation. 5 Section 116 of subdivision D of Pt 2 Div 3 of the Act empowers the respondent to cancel a visa in certain circumstances. Subdivisions E and F prescribe procedures for cancelling visas under subdivision D. The procedures prescribed in subdivision E apply "Subject to Subdivision F (non-citizens outside Australia)", and impose a process of notification of the apparent grounds for cancellation and then the opportunity to respond before a decision is made to cancel a visa. It is common ground that subdivision E did not apply to the applicant. 6 Subdivision F contains ss 128 - 133. Section 128 provides: "128 Cancellation of visas of people outside Australia If: (a) the Minister is satisfied that: (i) there is a ground for cancelling a visa under section 116; and (ii) it is appropriate to cancel in accordance with this Subdivision; and (b) the non-citizen is outside Australia; the Minister may, without notice to the holder of the visa, cancel the visa." 7 But for the cancellation, the visa would have entitled him to re-enter Australia from time to time thereafter. The ground of cancellation was that available under s 116(1)(d) which relevantly provides that the Minister may cancel a visa if he is satisfied that: "if its holder has not entered Australia or has so entered but has not been immigration cleared - it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared;" The term "enter" includes "re-enter": see the definition of "entry" in s 5 of the Act. 8 The applicant was notified of the cancellation of the visa by letter dated 18 July 2001. It was in the following terms: "I wish to advise that the visa granted to you on 01 March 2001 has been cancelled under section 128 of the Migration Act 1958 ("the Act"). Grounds for cancellation of that visa exist under S116(1)(d) of the Act which states that "the Minister may cancel a visa if he … is satisfied that if its holder has not entered Australia or has so entered but has not been immigration cleared - it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared". Your visa was cancelled on 18 July 2001 because documents attesting to your skills, qualifications and experience as a martial arts instructor have been found to be bogus. The "Act" gives you the opportunity to comment on the ground for cancellation and to give reasons why your visa should not have been cancelled. If you are able to show that the ground for cancellation does/did not exist, the cancellation of your visa will be revoked. It [sic] you cannot show that the ground for cancellation does not exist, but there is a reason why your visa should not have been cancelled, the cancellation of your visa may be revoked. You should respond to this Notice by 22 August 2001. There is no provision for this time frame to be extended. If you do not respond by that date, the revocation of the cancellation of your visa will not be considered. As you are no longer the holder of an Australian visa, you are not entitled to travel to Australia. If you do you will be refused immigration clearance and will be removed from Australia. Relevant agencies in Australia have been advised that your visa has been cancelled. You may wish to make another application for a visa, however I can give no indication of the possible outcome of that application. You should contact your nearest Australian mission for further information." 9 Section 129 of the Act provides: "(1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice: (a) stating the ground on which it was cancelled; and (b) giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and (c) inviting the former holder to show, within a specified time, being a prescribed time, that: (i) that ground does not exist; or (ii) there is a reason why the visa should not have been cancelled; and (d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and (e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked. (2) The notice is to be given in the prescribed way. (3) Failure to give notification of a decision does not affect the validity of the decision." As can be seen, where a visa has been cancelled under s 128, the respondent is obliged to give notice of that cancellation to the person whose visa has been cancelled. By reason of s 129(1)(b) the notice must include particulars of the ground of cancellation and of the information because of which that ground was considered to exist. That information was not "non-disclosable information". 10 The delegate of the respondent, by memorandum dated 18 July 2001, had recorded the basis upon which the applicant's visa had been cancelled. It was called by the parties the Reasons for Decision. I shall adopt that description. After referring to the grant of the visa and the basis upon which that visa had been granted, it recorded: "These documents [the documents provided in support of his skills or attesting to his skills] included what purported to be a certificate of award from a Hong Kong martial arts tournament, a certificate as a Kung Fu instructor for the police and a reference from the Shaolin Temple. These documents have now been established as bogus and the Guangzhiu office of DIMA has advised that they hold written confirmation of this." It then referred to s 103 of the Act and to s 116(1)(d) of the Act, and concluded that a ground for cancellation exists under s 116(1)(d) of the Act, that the visa holder is outside Australia, and that it is appropriate to cancel the visa without notice under s 128 of the Act because giving notice of intention to cancel might "cause the visa holder to travel to Australia". 11 As noted above, if the applicant had been in Australia at the time of the decision to cancel his visa, he would have been entitled to the benefit of the procedures prescribed under subdivision E of Division 3 before the visa was cancelled. 12 The structure of ss 128-133 in subdivision F is that the cancellation first occurs, and then s 129 operates so that the person whose visa has been cancelled is notified of the cancellation in terms which enable that person to respond to the cancellation. If a response is made to a notice under s 129, s 131 then obliges the respondent to consider whether to revoke the cancellation. Section 131(1) provides: "(1) Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister: (a) if not satisfied that there was a ground for the cancellation; or (b) if satisfied that there is another reason why the cancellation should be revoked; is to revoke the cancellation. 13 The applicant contends that s 129(1) was not complied with in the circumstances because he has not been given notice of the information about which documents were found to have been bogus, and about why those documents were considered to be bogus, although the delegate of the respondent in the Reasons for Decision identified three specific documents which he considered to be bogus and the foundation for that view. 14 The applicant through his migration agent responded to the letter of 18 July 2001 on 21 August 2001, within the period prescribed. That letter was in the following terms: "We do not believe that Mr. Wong's 457 visa should be cancelled. We wish to submit the following original documents to support our claim. Please return them to us after your assessment. Some of the documents were over 5 years old; we believe that they must be genuine. Due to the fact that we did not receive any information related to the allegation from the file obtained under FOI, we cannot reply specifically why DIMA claimed that the documents lodged were bogus. We do not believe that documents lodged with DIMA were bogus. Mr. Wong and Mars Basketball Centre had spent a lot of money to start the martial art academy. Mars has started the $100,000 renovation last month. Mr. Wong had traveled [sic] to Korea to sign the martial art championship competititon to promotion [sic] the Australia Shao Lin Kung Fu Academy. (This project budget is $500,000 with ticket sale over $700,000) They also spend a lot of money (over $20,000) in uniform and materials for the academy. Please contact me if you need more information or any contact number to clarify any claims that we submitted to DIMA." It claimed that the applicant had been unable to identify which of the many documents attesting to his skills qualifications and experience as a martial arts instructor had been found to be bogus. The applicant was therefore unable specifically to respond in relation to the three documents about which the delegate of the respondent had in fact made such a finding. 15 The next event was the decision purportedly made under s 131 of the Act declining to revoke the cancellation of the visa. The applicant was notified of that decision by letter dated 2 October 2001 in the following terms: "On 18 July 2001 you were notified that your visa was cancelled under section 128 of the Migration Act 1958. Your agent responded in a letter dated 21 August 2001 and also provided a number of further letters and documents. After considering your response, the Department has decided not to revoke the cancellation of your visa under s 131 because of the reasons set out in the attachment. If you wish to travel to Australia you will need to make another visa application. However, I can give no indication of the possible outcome of that application. Please contact your nearest Australian mission for further information. I will leave your original documents at the reception desk of my office for you to arrange collection." Reference is made in that letter to Reasons for that decision as set out in an attachment. The attachment is a minute of the reasons for the decision not to revoke the cancellation of the visa. It is unnecessary to refer to that document in any detail, save to note that the delegate on that occasion considered that the applicant "has presented a number of bogus documents and that these include" three identified documents or classes of documents, of which only one is within the category of three documents previously found by the same delegate to have been bogus. Nothing turns on that matter in this application.