Cowle v Minister for Immigration & Multicultural Affairs [2000] FCA 49 (3 February 2000)

Last Updated: 3 February 2000

FEDERAL COURT OF AUSTRALIA

Cowle v Minister for Immigration & Multicultural Affairs [2000] FCA 49

MIGRATION - Application to review the Immigration Review Tribunal's ("IRT") affirmation of the delegate's decision to cancel the Subclass 976 Visa under s 116(1)(g) of the Migration Act 1958 (Cth) - consideration of Reg 2.43(1)(k) - whether s 119 in connection with s 349 imposes further requirements on the IRT.

Migration Act 1958 (Cth) s116(1)(g), s 119, s 349, s 475

Migration Regulations 1994 2.43(1)(k), 457.211, 457.221

Tien v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 405 Cited

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Cited

KEVIN JOSEPH COWLE v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Q4 OF 1999

COOPER J

BRISBANE

3 FEBRUARY 2000

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q4 OF 1999

BETWEEN:	KEVIN JOSEPH COWLE Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	COOPER J
DATE OF ORDER:	3 FEBRUARY 2000
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent's costs of and incidental to the application, including reserved costs, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q4 OF 1999

BETWEEN:	KEVIN JOSEPH COWLE Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	COOPER J
DATE:	3 FEBRUARY 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

Background

1 On 30 September 1998 the applicant last entered Australia as the holder of an Electronic Travel Authority (Class UD) Subclass 976 (Electronic Travel Authority Visitor) Visa ("the visa"). The visa was due to expire on 30 December 1998.

2 On 11 November 1998 the visa was cancelled pursuant to s 116(1)(g) of the Migration Act 1958 (Cth) ("the Act"). The ground relied upon was that contained in Reg 2.43(1)(k) of the Migration Regulations 1994 ("the Regulations"), namely that the delegate of the Minister was satisfied that the applicant did not have at the time of the grant of the visa, or had ceased to have, an intention only to visit Australia temporarily for tourism purposes.

3 On 19 November 1998 the applicant applied to the Immigration Review Tribunal ("the Tribunal") for a review of the decision of the delegate of the Minister to cancel the visa. On 8 December 1998 the Tribunal affirmed the decision to cancel the visa.

4 The applicant, on 6 January 1999, appealed to this Court pursuant to s 475 of the Act to review the decision of the Tribunal. On 19 February 1999 the applicant filed an amended application.

5 On the hearing of the application on 19 August 1999 the applicant sought and was granted leave to further amend the grounds relied upon to set aside the decision of the Tribunal. The amended grounds upon which the applicant relied and upon which the application was heard, were :

"(a) The Tribunal and the Minister's delegate failed to observe procedures required by the Migration Act, namely, under Section 119:

(i) failing to give the Applicant notice, particulars and information concerning of the proposed ground of cancellation, namely that the Applicant ceased to have an intention to visit Australia temporarily for tourism purposes;

(ii) failing to give the Applicant an opportunity to show that the ground did not exist or that there was a reason why the visa should not be cancelled;

(iii) failing to advise the Applicant of the nexus between the proposed ground of cancellation and the information giving rise to the ground.

(b) The Tribunal's decision involved an error of law, namely that the expression of `an intention only to visit Australia for tourism purposes' in sub-regulation 2.43(1)(k) Migration Regulations was incorrectly interpreted."

(c) that there was no evidence or other material to justify the making of the decision and in particular:

(i) there was no evidence or other material indicating an intention on the part of the Applicant to remain in Australia, if not granted a Subclass 457 Visa;

(ii) the Tribunal based a decision on the existence of particular facts, namely that the Applicant ceased to have an intention to only visit Australia permanently for tourism purposes and those facts did not exist."

Ground (a)

6 In the present case the power to cancel the visa relied upon was that contained in s 116(1)(g) of the Act. That section provides :

"116 Power to cancel

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that :

.....

(g) a prescribed ground for cancelling a visa applies to the holder."

Subsections (2) and (3) are not relevant to the present application.

7 Subregulation 2.43(1)(k) of the Regulations provides :

"2.43 Grounds for cancellation of visa (Act, s116)

(1) For the purposes of paragraph 116 (1) (g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:

.....

(k) in the case of the holder of a Subclass 976 (Electronic Travel Authority (Visitor)) 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;"

8 Section 119 of the Act provides :

"119 Notice of proposed cancellation

(1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the 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 :

(i) those grounds do not exist; or

(ii) there is a reason why it should not be cancelled.

(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.

(3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.

(4) The other provisions of this Subdivision do not apply to a cancellation:

(a) under a provision other than section 116; or

(b) to which Subdivision F applies."

9 The applicant submitted that s 119 of the Act required that both the Minister's delegate and the Tribunal advise the applicant that each considered that the applicant did not have at the time of the grant of the visa, or ceased to have an intention only to visit Australia temporarily for tourism purposes, before making a decision adverse to the applicant. The applicant further submitted that in breach of that obligation no requisite notice was given to him by either the Minister's delegate or the Tribunal.

10 On 10 November 1998 the Department of Immigration and Multicultural Affairs ("the Department") sent to the applicant a letter headed "NOTICE OF INTENTION TO CANCEL UNDER SECTION 116 OF THE IMMIGRATION ACT 1958". The letter said, so far as is relevant :

"It has come to the Department's attention that there may be grounds for cancellation of your visa under section 116 of the Migration Act 1958.

According to Departmental records, you were granted the following visa:

VISA SUBCLASS: 976

VISA EVIDENCE NO: -

VISA CEASE DATE: 30/12/98

It has come to the Departments attention that:

You have been working at Icon Photographics & Imaging Centre Pty Ltd located at Shop 20, Forest Lake Village Shopping Centre, Forest Lake.

If this is the case, your visa may be cancelled under section 116(1)(g) a prescribed ground for cancelling a visa applies to the holder. Regulation 2.43(1)(k) applies - refer to attached for grounds.

The Migration Act 1958 gives you the opportunity to comment on these grounds for cancellation and to give reasons why your visa should not be cancelled.

You are asked to contact Simon Price on 10 November 1998 to arrange a time for an interview to discuss your circumstances. You must arrange to have an interview by 12 November 1998. At the interview you will be asked :

. Why you think the ground(s) for cancellation does or does not exist; and

. why you think your visa should not be cancelled.

If you do not arrange to have an interview by 12 November 1998, a decision on whether to cancel your visa will be made using information already held by the Department.

If you are unable to arrange an interview by the date above, you should contact me on 07 33605187 before 12 November 1998 to seek an extension of time. You will only be given an extension of time if you have a legitimate reason for not responding by 12 November 1998.

Deciding whether to cancel your visa is a two-step process. An officer will decide whether there is a ground for cancellation of your visa. Your response will be taken into account. If the officer decides that there is no ground for cancellation, your visa will not be cancelled.

If the officer decides that there is a ground for cancellation, a decision will be made on whether to cancel your visa. Your response will be taken into account. The decision-maker will take into account matters such as :

. the purpose of your travel to and stay in Australia;

. whether you intend a temporary or permanent stay in Australia;

. whether you have previously travelled to or spent any time in Australia;

. your present circumstances, such as :

- the length of your lawful residence in Australia;

- the strength of your family, social, business and other ties with Australia;

- the degree of hardship which may be caused to Australian citizens or permanent residents if your visa were cancelled;

- any unreasonably hardship you might suffer if your visa were cancelled;

- your ties to other countries;

. the circumstances in which the ground for cancellation arose;

. the seriousness of the ground for cancellation;

. your behaviour in relation to the Department.

You should address these matters in your response.

If your visa is cancelled you will become an unlawful non-citizen, unless you are granted a further visa. If you have made a further substantive visa application since your arrival in Australia, any bridging visa you were granted in relation to that application will cease if your visa is cancelled.

If you become an unlawful non-citizen, you may be detained and removed from Australia. If you have family unit members (eg spouse, dependent children) in Australia who hold visas because you hold a visa and your visa is cancelled, then their visas will also be cancelled. If a person (other than a family unit member) holds a visa because you hold a visa and your visa is cancelled, then that other person's visa may also be cancelled.

If you have any queries please contact me on the above telephone number.

Yours sincerely"

11 The letter had attached to it a copy of Reg 2.43(1)(k).

12 The applicant submitted that the only particulars given by the delegate of the Minister pursuant to s 119 of the Act were that the proposed ground for cancellation was that he had been working. In my view the submission is without substance. The written notice given to the applicant on 10 November 1998 identified the ground relied on, namely Reg 2.43(1)(k), a copy of the text of which was attached to the notice. Any fair reading of the notice informs the recipient that the circumstance of his working for Icon Photographics & Imaging Centre Pty Ltd at Forest Lake, if correct, may satisfy the Minister that the applicant did not have, at the time of the grant of a Subclass 976 Visa, or has ceased to have, an intention only to visit Australia temporarily for tourism purposes. The fact of the nexus between the ground for cancellation, the circumstances specified in Reg 2.43(1)(k), and the information giving rise to that ground being the report of his working at Forest Lake, was communicated to the applicant. In these circumstances, the requirements of s 119(1)(a) and (b) and s 120(2) have been met by the Minister's delegate by the notice of 10 November 1998: Tien v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 405 at 417.

13 On 11 November 1998 the applicant attended an interview at the Department. On that date the applicant was handed a notice headed "NOTIFICATION OF CANCELLATION UNDER S116 OF THE MIGRATION ACT 1958". The letter included the following :

"On 10/11/1998 the Department notified you of its intention to cancel your visa. You replied at interview on 11/11/1998. Your comments have been taken into account in making this decision.

The Department has decided that there is a ground for cancellation of your visa under paragraph 116(1)(g).

Your visa was therefore cancelled on 11/11/1998. The reasons for not cancelling your visa were not considered sufficient to outweigh the existence of the ground for cancellation."

14 The letter also included the decision "to cancel the visa holder's visa" and reasons for the decision. Those reasons were :

"I am satisfied that Mr Cowle has been working at Icon Photographics and Imaging Centre located at Shop 20, Forest Lake Village Shopping Centre, Forest Lake.

His explanation for being at the above premises on 10/11/98 only for the purpose of inspecting the business lacks credibility, as evidence on his departmental file confirms his appointment as managing director of Icon Photographics with initial salary payable from 31/10/98.

Australian Government and community expects visitors to Australia to abide by their visa conditions.

There is no evidence that Mr Cowle or an Australian citizen or resident will suffer hardship if his visa is cancelled.

I am satisfied that Mr Cowle is not a genuine visitor to Australia."

15 The decision of the delegate was not that the visa was to be cancelled because the applicant was working. The decision was based on Reg 2.43(1)(k) on the ground that the applicant was "not a genuine visitor to Australia", or to use the words of the Regulation, because the delegate was satisfied that the applicant "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".

16 The Tribunal, in its reason for decision, identified the decision of the delegate under review in the following terms :

"On 11 November 1998 the Applicant was handed a `Notification of cancellation under Section 116 of the Migration Act 1958' indicating that the Applicant's Subclass 976 visa was cancelled on that day as the decision maker was satisfied the Applicant had been working and that he was not a genuine visitor to Australia. Accompanying the `Notification' was a `Decision Record - Visa Cancellation under Section 116 of the Migration Act 1958 - Visa Holder in Australia'. The `Decision Record' noted the Applicant's visa had been cancelled pursuant to section 116(1)(g) of the Migration Act as regulation 2.43(1)(k) was not satisfied.

DECISION UNDER REVIEW

As stated above, on 11 November 1998 the Applicant was given a Notification and Decision Record cancelling her [sic] Subclass 976 visitor visa. That document states the reasons for the decision to cancel the visa."

17 The applicant submitted that s 349(1) and s 349(3) of the Act required that the Tribunal follow the procedures required to be followed by the Minister or the Minister's delegate. In the present case it was submitted that the Tribunal itself, before embarking upon the review of the decision of the delegate, or before coming to a decision on the review, was required to comply with s 119 and s 120 of the Act. That would require the Tribunal to give a notice of proposed cancellation of visa by the Tribunal and notifying that there appear grounds for cancelling it.

18 Section 349 of the Act, as it stood at the time of the decision of the Tribunal on 8 December 1998, provided :

"349(1) The Tribunal may, for the purposes of the review of an IRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

(2) The Tribunal may:

(a) affirm the decision; or

(b) vary the decision; or

(c) if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

(d) set the decision aside and substitute a new decision.

(3) If the Tribunal:

(a) varies the decision; or

(b) sets aside the decision and substitutes a new decision;

the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations."

19 Section 349 is concerned with the powers which are exercisable by the Tribunal on the review of an IRT-reviewable decision under s 346 of the Act (s 349(1) and s 349(2)) and the consequence of the exercise of those powers (s 349(3) and s 349(4)). The powers are not at large and are limited to the review of the IRT-reviewable decision. In the context of a cancellation of a visa under s 116(1)(g) of the Act, because a prescribed ground for cancelling the visa applies to the holder, namely that prescribed in Reg 2.43(1)(k), the review is limited to a consideration of the decision made by reference to the requirements of the Act and Regulations applicable to the decision under review. If a decision of the type under review has procedural requirements attendant to its proper exercise, then it may be an issue before the Tribunal as to whether or not the procedures have been followed and the consequences, if any, upon the decision if the procedures have not been followed. However, the Tribunal is not itself required to follow the procedures applicable to the original decisionmaker before it reviews the decision and comes to a conclusion requiring that it exercise one of the powers available under s 349(1) and s 349(2) of the Act.

20 The question for determination before the Tribunal was whether the decision by the delegate to cancel the visa under s 116(1)(g), having regard to the terms of Reg 2.43(1)(k), was the correct or preferable one on the material before the Tribunal. It is in that sense that the Tribunal is required to stand in the shoes of the delegate: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589.

21 The material demonstrates that the delegate of the Minister did observe the procedures required by s 119 of the Act and that the applicant had the requisite notice and availed himself of the opportunity to be heard in opposition to the cancellation of the visa. The Tribunal, for the reasons given, was not obliged to comply with the procedures specified in s 119.

22 No reviewable error is made out under Ground (a).

Ground (b)

23 The applicant submitted that an "intention" for the purposes of Reg 2.43(1)(k) does not, in the context of the regulation, include a conditional intention or desire. The regulation should be construed to relate only to an intention to remain unlawfully in Australia. So construed, Reg 2.43(1)(k), it was submitted, only applies to persons who at the time of the grant of a Subclass 976 Visa had no intention to visit Australia temporarily for tourism purposes, but intended to enter and remain illegally in Australia, or to persons who formed the intention to remain illegally in Australia after entry on a Subclass 976 Visa. The applicant, it was submitted, came within neither category because he had a conditional intention to remain in Australia only if his application of 5 November 1998 for a Subclass 457 Business (Long Stay) Visa was granted. Otherwise, it was submitted the applicant's intention was to remain in Australia for tourism purposes only.

24 It was submitted that the Act and Regulations contemplated that a person in Australia, being the holder of an Electronic Travel Authority (Class UD) Visa could apply in Australia for a Subclass 457 Business (Long Stay) Visa: Criteria 457.211(b)(i)(B) of Schedule 2 to the Regulations. The only limitation imposed in the criteria to be satisfied at the time the decision to grant or refuse the visa was made was, it was submitted, that the applicant had complied substantially with the conditions to which the Class UD Visa was subject: Criteria 457.221.

25 In these circumstances it was submitted it was not a prescribed ground under Reg 2.43(1)(k) to make an application of a type permitted by the Act with the intention or desire to remain in Australia for business purposes if the application for the visa was granted.

26 It was submitted that when the applicant applied on 5 November 1998 for a Subclass 457 Business (Long Stay) Visa, the applicant's change of intention was as to the purpose and length of his stay in Australia subject to the grant of the visa. The Tribunal erroneously treated such a change of intention as falling within the terms of Reg 2.43(1)(k) properly construed, it was submitted.

27 The difficulty with this submission is that it ignores the factual findings of the Tribunal. These were :

"Regulation 2.43 sets out the prescribed grounds for cancellation of a visa pursuant to section 116(1)(g) of the Act. Paragraph (k) refers to a visa holder having an intention only to visit Australia temporarily for tourism purposes. From the evidence and material before it the Tribunal finds that the Applicant is in breach of that paragraph (2.43(1)(k)). It is clear that in Australia the Applicant has sought to be involved in a business here. He has made investigations and is involved at the least as a shareholder and director of Icon. Reference was made to an approach by AGFA given his overseas experience with state of the art equipment and the like. The Applicant stated he had applied for a Subclass 457 visa for business purposes. As well he noted on a number of occasions that he intended to reside in Australia permanently as he has much to offer that will be of benefit to Australia. Furthermore the Tribunal doubts that the Applicant had a genuine intention to remain in Australia as a visitor temporarily or for tourism purposes only.

The Tribunal does not find that soon after arrival, [sic] followed by an application for refugee status to be consistent with an intention to visit Australia temporarily for tourism purposes.

The Tribunal is therefore satisfied on balance that grounds for the cancellation of the Applicant's Subclass 976 visa exist pursuant to subsection 116(1)(g) of the Act.

.....

The Tribunal sets out its findings having regard to the matter identified in the policy guidelines as follows:

* The purpose of intended travel to or stay in Australia.

The review applicant travelled to Australia as the holder of a Subclass 976 visa.

The Applicant's evidence is that his purpose in travelling to Australia was to do tourism. However while here he has considered business prospects, been involved in the establishment of Icon of which he and his wife are directors and shareholders, applied for refugee status and a Subclass 457 visa.

* Whether evidence suggests that the visa holder intended a temporary or permanent stay in Australia.

The evidence and material before the Tribunal suggests that the Applicant on balance intends a much longer stay in Australia than the period authorised by his Subclass 976 visa.

* Whether the visa holder has travelled to or spent any time in Australia on other occasions and the visa holder's conduct on those occasions.

The Applicant has previously travelled to Australia in December 1997 with his family. He applied for refugee status and considered business opportunities here. He is involved with Icon.

.....

* The circumstance in which the ground for cancellation arose.

The Applicant lodged an application for a Subclass 457 visa and officers of the Department approached him at Icon's premises at the Forest Lake Shopping Centre.

* The seriousness of the ground for cancellation.

The Tribunal acknowledges the Applicant's evidence that he was not working. He stated he has no hands on involvement in Icon nor is he involved in its day to day running. He has received no income from Icon. However the Tribunal notes that he and his wife are directors and shareholders of that company registered in July 1998 and his anxiety to work in Australia given his experience and the like.

There is no credible evidence before the Tribunal which would allow the Tribunal to find that, at the time the Applicant entered Australia, he had a genuine intention only to visit.

The Tribunal did not find the Applicant's evidence about coming to Australia for tourism purposes and basically for holidays to be entirely credible especially given his application for refugee status and his stated intentions to remain here.

.....

* The time elapsed since the ground for cancellation arose and whether the circumstances which provide the ground(s) for cancellation continue to exist.

The Tribunal is satisfied, on the evidence before it, that the prescribed ground for the cancellation of the visa existed at the time the Applicant last entered Australia, given the Tribunal's finding that the Applicant wishes to remain permanently in Australia. That ground continues to exist, according to the Applicant's evidence before the Tribunal."

28 The Tribunal concluded its findings and its decision as to discretionary circumstances :

"The Tribunal notes the Applicant's circumstances and that he is applying for a review of the decision not to grant him a Subclass 457 visa. However, in view of the other findings the Tribunal has made concerning the Applicant's intentions in coming to Australia and his intentions generally to remain here, the Tribunal sees no reason to exercise its discretion to set aside the decision of the Department to cancel the Applicant's subclass 976 visa."

29 The findings made relate to the intention of the applicant at the time of grant of the visa on 30 September 1998 prior to the application for the business visa. The effect of the findings is that the applicant did not have at the time of the grant of the visa an intention only to visit Australia temporarily for tourism purposes and did not have an intention to depart from Australia on or before the expiration of the Subclass 976 Visa on 30 December 1998.

30 On the findings made, there is no demonstrable error that the Tribunal construed Reg 2.43(1)(k) in such a way as to bring the relevant intention of the applicant within the operation of the regulation where the facts as found ought to have led to the regulation having no relevant operation to the circumstances of the applicant.

31 No reviewable error is made out under Ground (b).

Ground (c)

32 There was, in my view, ample evidence open to the Tribunal to find that the applicant, when he entered Australia on 30 September 1998 as the holder of a Subclass 976 Visa which expired on 30 December 1998, did not then have an intention only to visit Australia temporarily for tourism purposes. In particular, the evidence tendered in support of the application for the Subclass 457 Business (Temporary) Visa shows a significant involvement of the applicant in the affairs of Icon Photographics & Imaging Centre Pty Ltd, with that company commencing business in July 1998. The documents also show the applicant in or about June 1998 entering into chattel leases for five years to acquire equipment for the business. At the time the applicant returned to Australia in September 1998, he had not only an interest in a business being carried on in the country, but also his wife and children were resident in Australia and there were in place family arrangements which did not have the colour of a temporary tourist visit. The length of the applicant's stay in Australia since his first entry on a temporary tourist visa on 27 December 1997, his application for a protection visa for himself and his family on 23 March 1998, and his evidence before the Tribunal that he intended to remain in Australia and go into business, are matters disclosed by the evidence which also support the findings made by the Tribunal as to the applicant's intention when he re-entered Australia after a temporary absence to attend his father's funeral in the United Kingdom.

33 No reviewable error has been demonstrated under Ground (c).

Conclusion

34 The application is dismissed. Costs should follow the event.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated: 3 February 2000

Counsel for the Applicant:	Mr D Rangiah
Solicitor for the Applicant:	Nichol Robinson Halletts
Counsel for the Respondent:	Mr P Bickford
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 August 1999
Date of Judgment:	3 February 2000