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Federal Court of Australia |
Last Updated: 14 June 2001
Cujba v Minister for Immigration & Multicultural Affairs [2001] FCA 699
MIGRATION - cancellation by Minister of one applicant's 676 visas - Minister's refusal to cancel the revocation of another applicant's 676 visa - grounds of cancellation mainly as to each visa holder never having or having ceased or have the intention to remain temporarily in Australia as a tourist - grounds found to lack a reasonable or viable basis so radically as invoke Court jurisdiction to quash and set aside both decisions - no jurisdiction in the Court to grant additional relief requested.
Migration Act 1958 (Cth) ss 116(1), 128, 129(1), 131, 476(1)(b), 476(1)(c), 476(1)(d), 476(1)(e), 476(1)(g) and 476(4)(b)
Migration Regulations 1994 (Cth) reg 2.43(1)
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 referred to
Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565 referred to
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 applied
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 applied
OLEG CUJBA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N1190 of 2000
NICOLAE CUJBA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N315 of 2001
CONTI J
8 JUNE 2001
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
N 1190 of 2000 |
BETWEEN: |
OLEG CUJBA APPLICANT AND |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT |
JUDGE: CONTI
DATE OF ORDER: 8 JUNE 2001
WHERE MADE: SYDNEY
1. Order that the decision of the Respondent made on 13 October 2001 to cancel Oleg Cujba's 676 visa be quashed and set aside.
2. The Respondent pay the Applicant's costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
N 315 of 2001 |
BETWEEN: |
NICOLAE CUJBA APPLICANT AND |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT |
JUDGE: CONTI
DATE OF ORDER: 8 JUNE 2001
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. Order that the decision of the Respondent made on 4 March 2001 to decline to revoke the cancellation of Nicolae Cujba's 676 visa be quashed and set aside.
2. The Respondent pay the Applicant's costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
N 1190 of 2000 |
BETWEEN: |
OLEG CUJBA APPLICANT AND |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT |
AND |
N 315 of 2001 |
|
|
|
BETWEEN: |
NICOLAE CUJBA APPLICANT AND |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT |
JUDGE: |
CONTI J |
DATE: |
8 JUNE 2001 |
PLACE: |
SYDNEY |
Subject Matter Paragraph No(s)
The family and employment circumstances of the Applicant prior to
arrival in Australia 1 to 4
The preparation for and the journey to Australia undertaken by the
Applicants 5 to 11
Internal Department of Immigration records relating to the cancellation
Of the Applicants' visas 12 to 14
The Departmental adverse notifications made to the Applicants at
Sydney Airport and the Departmental records relating thereto 15 to 19
The concluding events of the evening of 13 October 2000 and the
Departmental reports concerning the same 20 to 22
The statutory scheme for cancellation of temporary visas 23 to 26
Further circumstances concerning the cancellation of Nicolae's
visa and the non-revocation thereof, and the cancellation of Oleg's
visa in the testimonies of the Applicants 27 to 45
The testimonies of the Respondent's officers not already incorporated
above 46 to 60
The testimonies of the Respondent's officers not already incorporated
above
Ms Baxter 47 to 54
Ms Van Zywert 55 to 59
Ms Stapelton and Mr Moussa 60
Events subsequent to 13 October 2000 61 to 70
The cancellation of Nicolae's tourist visa (ie 676 visa) revisited 71 to 76
Application for Review 77 to 82
Relevant or potentially relevant legal principles 83 to 88
Findings and resolution of the issues 89 to 106
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
JUDGE: |
CONTI J |
DATE: |
8 JUNE 2001 |
PLACE: |
SYDNEY |
The family and employment circumstances of the Applicants prior to arrival in Australia
1 Oleg Cujba ("Oleg") was born on 4 April 1964 in Moldova. He is married with two children aged seven and thirteen years, with whom he was living in Kishinev in the Republic of Moldova prior to his departure to Australia on 12 October 2000. Oleg is a national of the Republic of Moldova. He qualified as a dentist at the State Institute of Medicine, Kishinev in 1989, and has since practised that profession first in Tinaspol and then in Kishinev, as an employed dentist until 1997, and from 1997 partly on his own account and partly in employment. A certificate as to his income from such employment in the sum of US$500 per month was provided by the employer, and was produced in connection with his Australian visa application made on 10 July 2000. Kishinev is the capital city of Moldova. He closed his business operations temporarily for his journey to Australia, and scheduled appointments for times following his anticipated return from Australia. Oleg owns an apartment in Kishinev, evidence whereof was also provided in the context of his visa application.
2 Nicolae Cujba ("Nicolae") was born on 19 December 1977. Nicolae is engaged to be married, and such engagement has remained intact despite Nicolae's detention in Australia for seven months or so. He graduated from the University of Babes-Boylyai, Cluj-Napoca, Romania, in July 1999 with the Degree in Juridical Sciences, Law, which was awarded in September 1999. He has practiced as a civil lawyer in Moldova since he graduated in September 1999, being employed by a large commercial corporation named DACIA S.R.L for a salary equivalent of US$480 to $US520 per month. He represents the company in commercial litigation. His professional work for DACIA is undertaken in the morning, and he practises as a civil lawyer in his father's firm in the afternoon, and such work includes appearances in court. Nicolae's position in DACIA remains open for him on his return. Nicolae's association with DACIA came about because of his father's earlier professional association with DACIA in legal matters. Nicolae owns a home in Moldova, the certificate of title to which was provided in connection with his visa application. His relationship with Oleg may be described as that of second cousins, their respective grandfathers being brothers.
3 There was lodged by Nicolae with the Australian Embassy in Moscow, as part of his visa application for travel to Australia described in [6] below, a certificate of DACIA expressed in Russian and duly translated into English, and bearing the signature of Yuri Andoni as Director and Nina Zbants as Chief Accountant, reading as follows:
"DACIA S.R.L. Commercial and Manufacturing Company19 Basambiey Street, Chisinau, Republic of Moldova
Tel/Fax (37373) 22265; (37372) 242425
Reference number 3
Date : 1 July 2000
Certificate
This is to certify that Nicolae Victor Cujba has been employed as a lawyer since 1 July 1999. His monthly salary is 6,5000 (six thousand five hundred) Lei which is equivalent to USD520. He is given 30 day annual leave that commences on 10 September 2000, so that he can visit the Olympic Games in Australia (Sydney - 2000) as a member of the fan group.
The Company keeps his position for him.
The Certificate was issued for its further submission to the Australian Embassy."
4 There was also lodged with the Australian Embassy in support of Nicolae's visa application a copy of the certificate of title to his house in Moldova, the translation whereof reads as follows:
" 93-T1LAND TITLES OFFICE
Date: 10 July 2000
Certificate No. 9701
This is to certify that according to the records kept by the Land Tittles Office, Nicolae Victor Cujba is the owner of the property located at 39 Lemontov Street, Chisinau, on the basis of the Contract of Sale N866 of 19.02.2000. The property is registered as half of the share. The total area is 221.1m2.
The Certificate was issued for its further submission to the Embassy."
The certificate was signed by a person purporting to be "Head of the Land Titles Office".
The preparations for and the journey to Australia undertaken by the Applicants
5 On 10 July 2000, Oleg signed a form provided by the Department of Immigration and Multicultural Affairs ("DIMA") headed "Application to visit Australia for tourism or other recreational activities". The form is couched in English, with a translation into the Russian language interposed throughout. This form, which comprises some eight pages, disclosed the following matter and circumstances, apart from those already recorded in [1] above;
(i) his home telephone number in Moldova;
(ii) his business telephone number in Moldova;
(iii) the reasons for his proposed visit to Australia was to attend the Olympic Games in Sydney, and the period of the visit would be from 10 September 2000 to 10 October 2000;
(iv) He had no relatives, friends or contacts whom he would visit in Australia;
(v) He had not previously applied for entry into Australia;
(vi) He had available 5500$ CWA for buying travel tickets and maintaining himself in Australia;
(vii) No one in Australia would be paying for his tickets, providing him with funds or maintaining him while he was in Australia;
(viii) There was in effect nothing to disclose which would constitute any security risk to Australia or to Australians.
There was provided with the Application evidence of "medical/travel" insurance and a copy of Oleg's passport.
6 On 25 July 2000, Nicolae signed a similar form of Application, which disclosed the following matters and circumstances, apart from those already recorded in [2] above;
(i) his home telephone number in Moldova;
(ii) his business telephone number in Moldova;
(iii) the reason for his proposed visit to Australia was to attend to Olympic Games in Sydney, and the period of the visit would be from 10 September 2000 to 10 October 2000;
(iv) He had no relatives, friends or contacts whom he would visit in Australia;
(v) He had not previously applied for entry into Australia;
(vi) He had available 5500$ CWA for buying travel tickets and maintaining himself in Australia;
(vii) No one in Australia would be paying for his tickets, or providing him with funds or maintaining him while he was in Australia;
(viii) There was in effect nothing to disclose which would constitute any security risk in Australia or to Australians.
There was provided with the Application evidence of "medical/travel" insurance and a copy of Nicolae's passport, together with a letter from DACIA which purports to respond to the request "If you are employed, a letter from your employer stating your income, the amount of leave, and that you still have your job when you return".
7 In the light of the statements of intention of each Applicant appearing in [5(iii)] and [6(iii)] above, I record that the Olympic Games were scheduled to be opened in Sydney on 15 September 2000, and the closing ceremony was scheduled to take place on 1 October 2000. Thereafter the Paraplegic Olympics were scheduled to take place in Sydney, at the same venue as the Olympic Games, from 18 October 2000 to 29 October 2000. In the events which happened, the Applicants did not travel to Sydney until 13 October 2000, arriving in the evening of 13 October 2000 by KLM Airlines, by a flight originating in Budapest, each with a return ticket to Budapest scheduled for departure from Sydney five days later on 18 October 2000.
8 Produced in evidence as part of Exhibit 8 is a document issued for internal use by the Department of Immigration and Multicultural Affairs ("DIMA") on 26 October 1999 headed "MSI-259" : Temporary Entry Related To The Olympic and Paralympic Games (1) Migration Series Instruction", the purpose of which was explained at the outset as follows:
"1.1 Purpose of the MSI1.1.1 The purpose of this instruction is to provide advice on processing visa applications relating to the Sydney 2000 Olympic and Paralympic Games ("the Games")."
Under the further heading "Visitor Entry (Visa Subclasses 676 and 686), the following appeared:
"2.1 Visitor Visas and the Olympics/Paralympics2.1.1 Visa applicants applying as spectators to attend the Olympic and Paralympic Games and the events leading up to them should be considered for short stay visitor visas...."
The remainder of the document continued to refer to the Olympics and Paralympics upon the implicit basis that the same were in effect a combined event for the purposes of administration of these Migration Series Instructions (abbreviated as MSI). Other contents of MSI-259 were as follows:
"1.3.2 Policy should not be applied inflexibly. Where criteria and the `When visa is in effect' provisions allow, consideration should be given to granting persons a visa (which may be a first visa or a further visa) with validity periods that will last until the end of the Games."
The expression "the end of the Games" was a clear reference to the end of the Olympics and Paralympics as though the same were a combined event.
9 Subsequently issued on 11 July 2000 for further internal use in relation to visitor visas was "Generic Guidelines H - Visitor Visas", which contained the following (inter alia):
"4. ASSESSING VISA - SPECIFIC CRITERIA4.1 Adequate Funds
4.1.1 The adequate funds criterion operates as follows:
* For the tourist visas (676 and 686)... the applicant must have `adequate funds, or access to adequate funds, for personal support during the period of the visit'.
...
4.1.4 Evidence of funds availability may take the form of:
* Such other evidence that satisfies the decision maker.
...
4.3 The applicant's `intentions'
4.3.1 For the tourist (676, 686)...
The applicant satisfies the Minister that the expressed intention of the applicant only to visit Australia is genuine.
...
11.1 Overview
11.1.1 Condition 8101 (relating to visitors and work) states the holder must not engage in work in Australia."
10 Earlier on 17 September 1996, Policy Direction No. 2 of 1996 contained the following:
"6. A delegate in relation to visit applications must be satisfied that the applicant has adequate funds (including, where applicable, access to funds and assistance from a person or persons nominated by the applicant) for his or her personal support during the period of the visit without engaging in work in Australia. Such support includes the capacity to meet the cost of medical or hospital treatment for any illness or accident which may befall the visitor while in Australia unless the applicant can show evidence that he/she is covered by adequate medical, emergency or travel insurance taken by or in respect of the applicant."
11 The visas issued to the Applicants were respectively in the following terms:
Oleg : "Granted 21 Jul 00. Must not arrive after 21 Oct 00. Single travel. Holder(s) permitted to remain in Australia for 03 months from date of arrival."Nicolae: "Granted 02 Aug 00. Must not arrive after 2 Nov 00. Single travel. Holder(s) permitted to remain in Australia for 03 months from date of arrival."
Significantly, the abovementioned date of 2 November 2000 was four days after the close of the Paraplegic Olympic Games, and thus more than one month after the close of the Olympic Games on 1 October 2000. No records have been tendered in evidence concerning DIMA's assessment or consideration of either of the Applicants' visa applications, I am therefore able to assume that the applications of each applicant satisfied the requirements of DIMA including those extracted in [9-10] above.
Internal Department of Immigration records relating to the cancellation of the Applicants' visas
12 There are unexplained gaps in the DIMA documentation which has been provided to the Court and to the Applicants in the form of the "Green Books" customarily assembled by DIMA. The evidence in the proceedings is to the effect that Nicolae's visa was cancelled by so-called "Overseas Post" supposedly dispatched by DIMA from Sydney on 12 October 2000 to the Australian Embassy in Moscow, and that DIMA intended to cancel Oleg's visa, presumably at the same time and by the same means, but omitted to do so due to "an oversight". No copy of the alleged notification to Nicolae by "Overseas Post" has been provided by DIMA in Nicolae's Green Book, and no copy of any minute or other note as to cancellation of Nicolae's visa or proposed cancellation of Oleg's visa has been provided in the Green Books prepared by DIMA for both of them. There is thus no evidence before me as to the grounds for such cancellation of Nicolae's visa or for such proposed cancellation of Oleg's visa.
13 Nor is it clear to me, from any evidence provided by DIMA in the proceedings, whether the visa applications and supporting material referred to and set out in [3-6] above was placed before the decision-maker in Sydney, whoever he or she happened to have been, at the time the decisions were originally made, apparently on or before 12 October 2000, to cancel the visas of Nicolae and Oleg. Counsel for the Applicants submitted that at the time of the DIMA decision-making which took place on 13 October 2000, the documentation whereof in evidence before me, DIMA's decision-makers in Sydney had "constructive" notice of the content of the Applicants' visa applications and supporting material referred to in [3-6] above. I think that it is appropriate for me in any event to draw the inference that the DIMA employees or representatives employed at the Australian Embassy in Moscow telexed or faxed all such documentation to Sydney before the decision-making which evidently occurred on or before 12 October 2000, and that the same was before the decision-maker, whoever he or she was, at the time of such original decision-making. No suggestion to the contrary has been advanced by DIMA. In any event, as between the Applicants and the Respondent, the existence of that situation should be presumed.
14 I am constrained to record in these Reasons for Judgment, as indeed I foreshadowed during the hearing, that the distressful misfortunes which befell these two professional men upon their arrival in Australia would have been avoided, along with all the substantial inconvenience, cost and expense which has subsequently been sustained by both parties to this litigation, were it not for the lack of care, consideration and efficiency on the part of DIMA's decision-maker or makers in Sydney in failing to communicate directly to the Applicants in a timely way the cancellation in Australia of their visas. Notwithstanding that business and private telephone numbers for both Applicants were clearly to be seen on the face of the Visa Applications of both Nicolae and Oleg (see [5(i)-(ii)] and [6(i)-(ii)] above), neither was telephoned by DIMA, before their departure from Moldova to Budapest airport for the KLM flight via Amsterdam to Sydney, for the purpose of either notifying the intention to make the cancellations, or the fact of the cancellations having been made. When the decision was actually made, or the intention to make the same was formed, has not been disclosed in the context of this litigation. DIMA's Sydney International Airport Assistant Manager Ms Baxter, who was DIMA's decision-maker involved in the matters the subject of complaint in the proceedings, was frank enough to concede that notification of the cancellations of both visas could have been so effected before the Applicants journeyed to Australia, saying additionally "... I don't know why they didn't do it earlier". Yet there has been no suggestion whatsoever of an apology or proposed apology in any shape or form emanating from DIMA, whether of a conditional or unconditional kind, for the absence of timely notification of cancellation of the visa applications earlier issued to the Applicants, much less any explanation as to why such a relatively single course was not adopted.
The Departmental adverse notifications made to the Applicants at Sydney Airport and the Departmental records relating thereto
15 By letter of DIMA dated 13 October 2000 under the signature of Ms Arlette Van Zywert addressed to Nicolae, which was handed to him at Sydney Airport in the course of the interviews of the Applicants in the evening of that day, the following was stated:
"Department of Immigration and Multicultural Affairs
Mr Nicolae Cujba
This is to advise that your visa was cancelled on 12 October 2000 under section 128 of the Migration Act 1958 (the Act) because of information received from overseas of which the Department was previously unaware.
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(s) for cancellation did not exist, the cancellation of your visa will be revoked. If you cannot show that the ground for cancellation did not exist, but there is a reason why your visa should not have been cancelled, the cancellation of your visa may be revoked.
You may choose whether to have the cancellation of your visa reconsidered while you are here in Australia in immigration clearance or you may choose to depart Australia and have the cancellation of your visa considered by the overseas post.
If you wish the cancellation of your visa to be reconsidered while you are in Australia, then you must respond to this Notification within ten minutes. If the cancellation of your visa is revoked, then you will be immigration cleared and permitted to remain in Australia. If the cancellation of your visa is not revoked, then you will be refused immigration clearance and removed from Australia.
If you wish the cancellation of your visa to be reconsidered while you are outside Australia, you must leave Australia as soon as possible. If you do so, you have 28 days in which to respond to this Notification. You should direct your response to the Australian Consulate-General in Moscow by 10 November 2000.
Please advise the immigration officer what you want to do.
If you do not respond to this Notification within the prescribed period, the revocation of the cancellation of your visa will not be considered. As you are an unlawful non-citizen, you will be refused immigration clearance and removed from Australia.
Yours sincerely"
It will be seen that letter did not disclose any of the "... information received from overseas of which the Department was previously unaware", nor when such information had been received. Moreover the letter did not state the "ground for cancellation". The significance of the latter omission is later addressed.
16 Following a second interview with Nicolae at Sydney Airport following delivery to him of the above letter of advice of cancellation, and the expiration of the ten minute notice period specified in the fifth paragraph of the letter, Ms Van Zywert handed a further letter dated 13 October 2000 to Nicolae on a DIMA letterhead as follows:
"Department of Immigration and Multicultural Affairs
To:
Mr Nicolae Cujba
Dear Mr Cujba
On 13 October 2000 you were notified that your visa was cancelled under section 128 of Migration Act 1958. You replied at interview on 13 October 2000.
After considering your response, the Department has decided not to revoke the cancellation of your visa under s 128 because you have been unable to provide any evidence that would satisfy the delegate that re-vocation of cancellation is warranted.
As you do not hold a visa, you have been refused immigration clearance and will be removed from Australia as an unlawful non-citizen.
Yours sincerely
Arlette Van Zywert
Position No 1984
13 October 2000"
17 A subsequent file note of Ms Van Zywert provides an insight into the hesitation in decision-making which was in reality experienced by both Ms Baxter and Ms Van Zywert in the evening of 13 October 2000, notwithstanding the impression of decisive conviction which in their evidence before me, they professed to have held in the evening of 12 October 2000:
"Sally/AM shiftIt was touch and go, but the final decision was not to revoke visa cancellation for Cujba, Nicolae b. 19 Dec 77 and cancel visa of Cujba, Oleg b. 04 Apr 64, Moldovan nationals. Both arrived on KL 843 on Fri 13 Oct 00.
As we did not have a chance, could you, please, serve the requirements on KL, book the return flight for both men and advise ACM."
The expression "As we did not have a chance..." doubtless reflected the lateness of the evening hour of 13 October 2000 when Ms Van Zywert conveyed DIMA's decisions to Nicolae and Oleg. The distinction drawn in that file note between the decision to revoke Nicolae's visa and the decision to cancel Oleg's visa was somewhat artificial, since there had been in reality no communication of any decision by DIMA to either of Nicolae or Oleg before their arrival in Sydney. Such artificiality of distinction was exemplified in file note reproduced in [18] below.
18 A form of "Refused Immigration Clearance Running Sheet" was prepared by the "Case Officer" in the evening on 13 October 2000, which stated the following information in relation to Nicolae:
(i) "Reason for Refusal " Bona Fides".
(ii) "Cash counted ? Currency US$800".
(iii) "... Language : English & Russian".
(iv) "Notification of cancellation? Issued at 18.00 hours. Time allowed 10 minutes".
(v) "Visa cancelled? ... Regulation 2.43 S 128
Decision made by : O/seas Post (Moscow)".
19 A form of "Cancellation of a temporary visa" was prepared by DIMA officer Ms Stapleton in relation to Oleg, and signed at 21:25pm on 13 October 2000. Part A on page 1 was headed "Notice of intention to cancel visa", and against the side note "Possible grounds for cancellation", the following appeared:
`FITS PROFILE OF MOLDOVIANS (sic) APPLYING FOR PROTECTION VISAS ON ARRIVAL. SPONSORED BY HEAD OF NATIONAL OLYMPIC COMMITTEE. INSUFFICIENT FUNDS. PAID US $300 FOR VISA."
The form further stated that Oleg was given 10 minutes to respond. Part B of this form was headed "Record of decision to cancel visa", and set out Oleg's reasons given to DIMA as to why the ground for cancellation did not exist, as follows:
"STATED HAS OWN BUSINESS DENTIST EARNS GOOD MONEY OWNS HOUSE AND HAS FAMILY IN MOLDOVA TO RETURN TO. HAS NO REASON TO STAY IN A/A."
Part C of the form was headed "Notification of decision for migration clearance", which stated that DIMA had decided to cancel the visa. It would seem that this document containing all of such parts was given simultaneously to Oleg (see paragraphs 2(r) of the Affidavit of Ms Van Zywert sworn 30 March 2001 and paragraph 2(b) of the Affidavit of Ms Stapelton), and not in the temporal sequence contemplated by the form.
The concluding events of the evening of 13 October 2000 and the Departmental reports concerning the same
20 Following upon communication of the decision of DIMA to refuse to revoke the cancellation of Nicolae's visa, and of the further decision of DIMA to revoke Oleg's visa, which decision-making occurred at Sydney Airport at approximately 10:00pm on 13 October 2000 as appears from other DIMA records, both Nicolae and Oleg were temporarily incarcerated in a cell at Sydney Airport. Thereafter they were escorted in handcuffs to Villawood Detention Centre by security officers. That was a Friday evening. Their experience must have been as humiliating as it would have exhausting, following upon the long flight from Budapest via Amsterdam to Sydney. Their humiliation would doubtless have been exacerbated by the fact of their various assurances having been rejected or dismissed, notwithstanding the expeditious way in which each was able so readily to verify his professional status by way of facsimile communications from Moldova. To add to their woes was the fact of Oleg's baggage being misplaced, and the further fact of being transported for some distance from the airport to virtual incarceration in a country which they had never previously visited, and where it was difficult to encounter people with whom they could readily converse. The traumatic nature of the experiences suffered by these professional men on the evening of 13 October 2000 cannot be understated. They both asserted that Ms Van Zywert informed them, though she denied, that because of the lateness of the hour, interviewing would resume "tomorrow", but "tomorrow" was a Saturday, and they remained at the Detention Centre for the duration of the weekend, and without the opportunity of further explanation and discussion with DIMA decision-makers. I will later express any views upon the reliability of the evidence of the Applicants on the one hand and Ms Van Zywert and Baxter on the other. In the events which have happened, both Applicants displayed extraordinary "backbone" in remaining here in Australia to contest this litigation, when they could have readily swallowed their pride and returned home on subsequent occasions at no additional cost except as to their self esteem. There appears in the evidence reference to their concern that their basic reason for staying on in Australia for so long to fight this litigation is that before they could henceforth travel to any foreign country, particularly the US, they would have to disclose the fact of their visa cancellations by the Australian authorities, but I suspect that there is more to their motivation. Both of the Applicants impressed me as open, frank and intelligent persons who were determined to gain recompense for their humiliation. In that regard, there is in evidence an open letter of offer of a monetary settlement to the Australian Government to which no response of any kind has ever been made. Moreover it emerged in the evidence that Oleg's wife and Nicolae's father have been assisting them financially whilst they have remained in Australia.
21 An Immigration Inspector's Report bearing date 18 October 2000, purportedly related to Nicolae, was prepared by Ms Van Zywert. Under the heading "Circumstances reported", the following appears, in relation to the events of 13 October 2000:
"PAX arrived 13/10/00 on A 676 Visa granted at Moscow on 02Aug00 not to arrive after 02Nov00. Single entry. 03 Months stay.This visa was cancelled on 12Aug00 by the issuing post, Moscow PAX was at that time already on route to A/A.
PAX was accompanied by his cousin Oleg Cujba B.04Apr64.
Referral KI 864065.
I have phoned the A/A Embassy Moscow for information re cancellation of visa. I was advised that both visas were granted at the request of the Head of National Olympic Committee for the Olympic Games. Most of the Moldovians (sic) have applied for protection visa after arrival. A/A Embassy are in the process of cancelling all visas of the rest of applicants who did not travel in time for the Olympics.
Both PAX were asked several times of the procedure they followed to obtain their visas and both stated they applied through the same agency which they stressed was not a travel agency, "just accredited people especially for the Olympics and they were the only ones in Moldova with this accreditation". PAX stated that apart from his bank statements, work certificates, evidence of property ownership it was necessary, and both obliged, to provide a support letter from the Moldovian (sic) National Olympic Committee.
PAX did not apply for their visas at the same time as they had different working commitments. They, however paid the same amount of US$300 for the visas and travel insurance to the agent called Ambasador S.A. but purchased their tickets at Eximtur, Cluj-Napoca, Romania because it was US$300 cheaper than buying them in Moldova.
PAX and his cousin I/VD initially separately and then together they explained their circumstances. Both were asked and denied that there was any personal danger in returning to their home country. PAX stated he was a law graduate from a Romanian Uni Babes Bolyai at Cluj-Napoca. PAX insisted that he is a genuine tourist, wants to stay for 5 days in Sydney. Though not quite able to tell me what were the sights he was interested in. He claims that they did not arrive in time for the Olympics because their grandmother died on 15Sep00. They both were adamant that they had a good life in Moldova, Oleg being a dentist with a big practice that he built up for the last 10-11 yrs and Nicolae having graduated with a law degree last year got a position with his father's law firm and produced his father's business card.
Each man had US$800. Nicolae held his money in his wallet while Oleg, oddly, had no wallet at all and kept his money bundled with a rubber bank in his pocket.
Oleg stated he absolutely would not even think of doing anything unlawful, like working or seeking to stay in A/A as he had a wife and two children in Moldova and his practice would suffer if he took longer to stay away; he might loose (sic) all his patients if he's done that. He asked me to look at his hands to prove he was not a labourer desperate to seek any employment to improve his financial status. Both men insisted, and were allowed to call Romania and Moldova to request their degrees to be faxed to our office to prove themselves to be genuine.
The assistant manager, Loretta Baxter and inspector C Stampleton were present when both PAX were explained over and over again the reasons for cancelling their visas. They were given NIC and allowed 15 min to respond. Neither added anything new to what they had previously stated. They were spoken to in English and Russian as they agreed to (sic) airport manager, Hassan Moussa was contacted and the assistant manager conferred with investigations to obtain a full picture. All arguments considered, the decision was not to revoke the cancellation as PAX failed to prove he was a genuine visitor to A/A.
...."
The reasons for the cancellations said to have been so explained "over and over again" were not however identified in this report. Nor did the report state the basis for rejecting the materiality or persuasiveness of the Applicants' stated circumstances.
22 A subsequent Immigration Inspector's Report bearing date 20 October 2000 was prepared by Ms Stapelton, an Administrative Officer, which adopted most of what appears in the earlier report prepared by Ms Van Zywert extracted at [21] above. Though the text thereof is largely the same, it is apparent that additional material was added and certain corrections made. Consequently it is appropriate that I set out verbatim below what appears in this later report under the heading "Circumstances reported", again in so far as the same related to the events of 13 October 2000:
"PAX arrived13/10/00 on a 676 Visa granted at Moscow on 02Aug00 not to arrive after 02Nov00. Single entry. 03 months stay.PAX was accompanied by his cousin Nicolae Cujba DOB 19/12/77. Referral KI 863951, whose 676 Visa had been cancelled when he was en route to A/A.
Officer Van Zywert phoned the A/A embassy Moscow for information re cancellation of Nicolae Cujba visa. Was advised that both visas were granted at the request of the Head of National Olympic Committee for the Olympic Games. Most of the Moldovians (sic) have applied for protection visa after arrival. A/A embassy are in the process of cancelling all visas for the rest of applicants who did not travel in time for the Olympics.
Both PAX were asked several times of the procedure they followed to obtain their visas and both stated they applied through the same agency which they stressed was not a travel agency, "Just accredited people especially for the Olympics and they were the only ones in Moldova with this accreditation". PAX stated that apart from his bank statements, work certificates, evidence of property ownership it was necessary, and both obliged, to provide a support letter from the Moldovian (sic) National Olympic Committee. They did not apply for their visa at the same time as they had different working commitments. They however, paid the same amount US$300 for the visa and travel insurance to the agent called Ambassador S.A. but purchased their tickets at Eximtur, Cluj-Napoca, Romania because it was US$300 cheaper than buying them in Moldova.
PAX and his cousin I/VD initially separately and then together they explained their circumstances. Both were asked and denied that there was any personal danger in returning to their home country. Nicolae stated that he was a law graduate from a Romanian Uni Babes Bolyai Cluj-Napoca. Insisted that the was a genuine tourist, wants to stay for 5 days in Sydney, though not quite able to tell me what, were the sights he was interested in. He claims that they did not arrive in time for the Olympics because their grandmother died on 15Sep00. They both were adamant that they had a good life in Moldova, Oleg being a dentist with a big practice that he built up for the last 10-11 yrs and Nicolae having graduated with a law degree last year got a position with his father's law firm and produced his father's business card.
Each man had US$800. Nicolae held his money in his wallet while Oleg, oddly had no wallet at all and kept his money bundled with a rubber band in his pocket.
Oleg stated he absolutely would not even think of doing anything unlawful, like working or seeking to stay in A/A as he had a wife and two children in Moldova and his practice would suffer if he took longer to stay away; he might loose (sic) all his patients if he did that. He asked me to look at his hands to prove he was not a labourer desperate to seek any employment to improve his financial status. Both men insisted, and were allowed to call Romania and Moldova to request their degrees to be faxed to our office to prove themselves to be genuine.
The assistant manager Loretta Baxter and inspector A Van Zywert were present when both PAX were advised over and over again the reason for cancelling their visas. Oleg was given Nic and allowed 10 mins to respond. Neither added anything new to what they had previously stated. They were spoken to in English and Russian, as they requested.
Airport manager, Hassan Moussa was contacted and the assistant manager conferred with investigations to obtain a full picture.
All arguments considered, the decision was not to revoke the cancellation as Nicolae failed to prove he was a genuine visitor to A/A. Decision made to proceed with the cancellation of Oleg's visa as he had not put forward any new information, and circumstances still weighted against any other decision.
Oleg advised that his visa was cancelled under Subsection 116(1)(G) Regulation 2.43(2)(j). Papers accepted by PAX.
...."
The statutory scheme for cancellation of temporary visas
23 The abovementioned letter of 13 October 2000 referred to s 128 of the Migration Act 1958 (Cth) ("the Act") which reads as follows:
"128 Cancellation of visas of people outside of AustraliaIf:
(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."
The words "without notice to the holder of the visa" must mean without prior notice to the holder of the visa". The notice of cancellation which Nicolae did not receive was supposedly notice of the fact that cancellation had occurred, though as I have elsewhere pointed out, the text of such notification was never produced. Perhaps it was in the same terms as what is set out in [15] above.
24 The abovementioned s 116 of the Act, so far as appears to be material, reads as follows:
"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.
...."
25 Regulation 2.43 prescribes the grounds for cancellation of visas pursuant to s 116 of the Act. That which is here material is paragraph (j) of sub-regulation (l) reading as follows:
"2.43 (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:...
(j) in the case of the holder of:
(i) a Subclass 676 (Tourist (Short Stay)) visa; or
(ii) a Subclass 686 (Tourist (Long Stay)) 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, or remain in Australia as a visitor temporarily for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, child, brother or sister of the visa holder or for another purpose, other than a purpose related to business or medical treatment;
...."
In the case of each of Oleg and Nicolae, the visa issued was a Subclass 676 (Tourist (Short Stay)) visa. In short, DIMA's decisions in relation to Nicolae and Oleg were that at the time of the grant of their respective visas, or at some subsequent time prior to their interrogation at Sydney Airport, each of them had formed the intention to remain otherwise than temporarily in Australia, and that they had failed to put forward any new information to rebut the circumstances still supposedly weighed against any other decision.
26 I set out also the terms of sections 129 and 131 of the Act, which follow the context of s 128 already extracted in [23] above:
"129 (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
(iii) 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.
...
131 (1) Subject to subsection (2), after considering any response to a notice under 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.
(2) The Minister is not to revoke the cancellation of a visa if there exist prescribed circumstances in which the visa must be cancelled."
Further circumstances concerning the cancellation of Nicolae's visa and the non-revocation thereof, and the cancellation of Oleg's visa - the testimonies of the Applicants
27 The hearing of the proceedings extended over a period of four days, followed by a series of written submissions from both parties to the litigation. I should at once express my appreciation for the detail of the submissions of counsel for both parties and the extent of their research of authority. In the course of writing this judgment, a Full Court comprising Hill, Finkelstein and Stone JJ gave its important judgment in Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565, and subsequently the High Court handed down its landmark decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. The parties' counsel have provided me with submissions in relation to the High Court judgment. The Applicants were extensively cross-examined on behalf of the Minister in relation to their conduct after arrival in Australia, the amount of cash resources which each Applicant brought to Australia, the absence of reservation of advance accommodation, and the absence of specific tourist plans or itineraries. Counsel for the Minister accepted the authenticity of the Applicant's respective Moldovan documentation which I have already identified, and the genuine nature of their professional qualifications and practices, their family connections and their accommodation circumstances in Moldova, which I have summarised mainly in [1-4] above, and did not cross-examine in relation thereto.
28 Nicolae was the first of the Applicants to be cross-examined, and it is therefore convenient to start with reference to important aspects of his testimony given in affidavit form. Nicolae explained to the DIMA officer who first interviewed him, Ms Van Zywert, the reason for the absence of credit cards in the possession of both himself and Oleg, namely the limited use of such facilities in Moldova, an explanation provoked by that officer's concern that Oleg (though not Nicolae) did not have a wallet. When questioned as to the adequacy of US$800 brought to Australia by each of them, Nicolae assured Ms Van Zywert that any additional funds needed by either of them could be obtained promptly by a telephone request from Australia to Moldova. Plainly DIMA had documentary evidence before it to such effect. Indeed during the course of his cross-examination in the proceedings, it transpired that Nicolae's lawyer father had been remitting money to him from Moldova during the time of his detention. Nicolae asked Ms Van Zywert to telephone his parents if she did not believe that he was a lawyer, and he showed her his father's business card relating to his father's legal practice.
29 Ms Van Zywert's initial interrogation then moved to the topic of accommodation, and in response, Oleg (instead of Nicolae) explained to the officer in Russian that it had been impossible to make hotel reservations from Moldova, and that their intention was to "take a taxi to some cheap hotel". Nicolae intervened to the effect that they did not in any event need hotel accommodation, because they had friends in Sydney, and thereupon he showed the officer a page from his address book which identified such persons (such material was produced in evidence). The authenticity of that address book was challenged in cross-examination, or at least the alleged circumstance of its alleged production to Ms Van Zywert, but Nicolae explained that the Australian acquaintances disclosed therein, were over thirty years of age and were originally Russians whom he had met with his parents when he and his parents had been holidaying in 1992 in Alta. Nicolae recounted that he requested Ms Van Zywert to telephone his friends if she did not believe him, but that she did not take up the invitation. The interrogation then focused upon the Applicants' Moldovan connections, including their respective university qualifications and professional practices. In the course of this period of interrogation, Nicolae said that Ms Van Zywert commented to both of them that "There is a large number of criminals in Russia and may be you are one of them", after which the following exchange occurred:
DIMA Officer: "Before you came some people from your country came to the Olympic Games and asked for political protection and other people are working illegally."Nicolae: "We don't need political protection, we haven't problems at home to ask for (sic) you in Australia political protection. I graduated from the University, I work for a private firm as a lawyer."
...
"We haven't problems. We don't look for political protection".
30 After further questioning concerning the Applicants' respective places of residence, University attendances and qualifications, places and extent of professional practices, and the travelling route they had undertaken to come to Australia, the interrogation of Ms Van Zywert moved to their reasons for coming to Australia. Nicolae's response on behalf of both of them was:
"I am a tourist. I have a tourist visa. I want to see the Paralympics, kangaroos, what else do you want, I am a tourist."
In response to further questioning, Nicolae produced his swimming costume. At another point in time during this earlier discourse, the following conversation is said by Nicolae occurred:
DIMA Officer: "When you made an application for a tourist visa, you said that you wanted to come for the Olympic Games. But now the Olympic Games are finished. Why didn't you come for the (sic) Olympic Games?"Nicolae: "My grandmother was very ill, maybe dying. I prefer to stay with her, maybe the last days of her life, I have to be with her. After one week doctor said the danger was past. We made a new reservation but then Oleg was bitten by a dog and asked me to delay further to sort out his treatment".
Such account of his grandmother's circumstances differed from what was recorded by Ms Van Zywert set out in [21] above, where it is recorded that what was actually said was that the grandmother had died. It is unnecessary for me to determine who gave the more accurate version, because of the similarity of one to the other.
31 Nicolae and Oleg were then separated at the Airport for what was described as "a long time", and ultimately Nicolae was handed by Ms Van Zywert the DIMA letter of 13 October 2000 which is at [15] above, and she said to him:
"You have ten minutes to convince me that, yes, you are tourist, that you came as tourist, that you came for holiday, not for working, not for asking for a protection visa."
Nicolae asserted that he then wrote on the back of that letter, when Ms Van Zywert had left the room during the stipulated ten minute response period, the following:
"I want to see the major attractions - Museum of Sydney, Town Hall, Airport, Bridge, Queen Victoria Building, Zoo, Botanic Garden, St. Andrew's Cathedral. I was expected for this moment for 6 years. It was my dream. I don't came (sic) as ?, with any drogs (sic). I'm just a tourist. I'll leave Australia in 5 days."
This note involved some controversy in the case, the Respondent's challenge being to the effect that the same was brought into existence after the Airport interviews (see [37] below in relation to this document).
32 Ms Van Zywert returned to the interrogation room at the airport after the ten minute response period, and according to Nicolae then said:
"I believe you but my manager doesn't believe you."
Thereafter Nicolae testified that "The manager came and conversed with him about "work, study, living, kangaroos", and said "Yes I believe you but my big boss doesn't believe you".
33 Thereafter Nicolae telephoned Romania from Sydney Airport at his request and with DIMA's permission. In due course, there arrived at Sydney Airport by facsimile communication copies of the University degrees of both Nicolae and Oleg. When however the same were handed to him, the said DIMA manager who brought such copies to Nicolae and Oleg (it is unclear whether that person was Ms Baxter or Ms Van Zywert), the following was said to have been communicated to them:
"We received your degrees but these faxes don't mean anything because we already make the decision to cancel the visas but if you want to discuss this with our big boss, now is very late, tomorrow we will discuss more but now you must go with these officers."
Thereafter followed the handcuffing of Nicolae and Oleg by security officers and their journey to Villawood Detention Centre accompanied by such security officers.
34 Whilst I have been referring mainly to the involvement of Ms Zywert in the interrogation process, it is apparent that the more senior officer Ms Loretta Baxter was at one point in time or another personally involved in the interrogation process of each of the Applicants. Understandably and not having made contemporaneous notes of what was being said, both Nicolae and Oleg were sometimes uncertain as to which of the two women asked particular questions or were given particular information.
35 For the purpose of his oral testimony in these proceedings, Nicolae was provided with an interpreter who spoke the Romanian language, which is said to be the same as the Moldovan language. Nevertheless it was apparent that Nicolae could speak and understand some English. Before being cross-examined, Nicolae gave the following account, through the interpreter, as to what Ms Baxter had said to him towards the close of the evening, as follows:
"Yes, she does believe us - she believes us but she thinks that if she will let us free in the country she might lose her job."
36 Nicolae also gave oral testimony concerning the circumstances in which he obtained his Australian visa, as follows:
(i) He paid nothing to the Australian Embassy in Moscow for his visa, but he did pay US$300 to a company called Ambassador which was located in Chisinau, and which had advertised in a newspaper its services as an "intermediary between people who want to go and support Olympic team and the Embassy" (Ambassador was identified in the DIMA internal reports in [21-22] above).
(ii) Ambassador advertised itself as the "only accredited company in Chisinau" or elsewhere in Moldova, and Moscow was the Australian Embassy to which Australian visa applications were required to be directed. He further explained that Moscow was about 2 days distance by overland travel from Chisinau. Ambassador undertook the task of lodging his visa application at the Embassy in Moscow, and it was a female officer of Ambassador by the name of Tanya who filled out the detail appearing therein. Doubtless a similar course was adopted in relation to Oleg's visa application.
(iii) His application for a visa was not supported by the Moldovan Olympic Committee so far as he was aware, and he never saw any letter from the Moldovan Olympic Committee; the reference in his visa application to US$5500 was to moneys provided for him by DACIA S.R.L. (see [6(iv)] above).
(iv) Oleg had obtained his visa 12 days before Nicolae obtained his visa (see [11] above).
(vi) Nicolae had previously booked a flight to Sydney on 25 September 2000 in order to attend the Olympic Games, but had to postpone such travel arrangements in the circumstances which he described as follows, similarly to what he said in his viva voce evidence recorded at [30] above:
"On 15 September my grandmother was sick. I was worried because it could have been the last days of her life and I preferred to stay with her and all this including the treatment extended to 30 September and the doctor told me that the danger passed and she's on her way to improve and then after we started and made inquires again to have another reservation."
And thereafter Nicolae continued as follows:
"After 30th we started to look for a ticket. It could have been the 1st, 2nd, the 3rd, it didn't matter which date but we started to make inquires as soon as possible and then after Oleg was bitten by the dog and he asked me to leave it for a few days, to wait for a few days because he didn't want it to have any infection or anything there, inflammation or anything."
(vii) Understandably by this time of postponed travel itineraries, so Nicolae further explained, "... it was very hard to find plane tickets. It was almost booked out because of the Olympics". Ultimately, Nicolae and Oleg purchased their respective air tickets through a Romanian Travel Agency Eximtur, but Nicolae repudiated the suggestion that their air tickets were so obtained by Eximtur through the agency of Ambassador.
(viii) When Nicolae agreed under cross-examination that when he visited Ambassador's office, he signed a document in or to the following effect:
"The duty of the specialist supporters and people that will support the Games, at the Olympic Games in Sydney 2001:
* To be present at the competition.
* To respect and obey the indication of the group leaders regarding the organisation of this trip.
* To guarantee departure to Australia and return to the Republic of Moldova.
* To respect the laws and regulations in the way that people should behave in Australian society.
* To be award of the information that will be important for and can be utilised whilst attending at the Games.
* To follow the strict regulation of hygiene and normal sanitary requirements through the whole time of your trip."
But of course by reason of the Applicants' time of arrival, for the reasons explained by the Applicants, the Olympic Games were completed and the Paralympics were shortly to commence.
37 Further to [31] above, it is convenient at this point to record, in relation to the controversial piece of paper there referred to, that later on 26 October 2000 at the Villawood Detention Centre, Nicolae gave the same to Robert Haralovic of Suker & Associates, Solicitors. When cross-examined as to his capacity to write in English, Nicolae said "In school I learnt to read and write [in English]. The problem was that I did not have [any]where to practice, so I forgot some". The piece of paper did contain misspellings, as appears from its text extracted in [31] above. Nicolae agreed that he had never previously visited a country where "the English language is the language which is spoken". Mr Harolovic gave evidence to the Court that he had interviewed the Applicants at Villawood Detention Centre on 26 October 2000, by way of introduction from a then existing client of his firm, that he had received from the Applicants the piece of paper referred to in [31] above on that occasion (in the form in which the same was tendered to the Court), in the context of the Applicants asking for legal advice in relation to "making an application as to their visa", and that the document had been placed by him in an office file, and he had only retrieved the same on the Tuesday prior to his giving evidence to the Court in the present proceedings. Mr Harolovic recalled that the Applicants' instructions were to apply for a visa, and that "... they felt hardly done by, by the immigration because they had a valid passport and a valid visa to come to Australia and apparently they were detained at the airport and they said [to me] to make inquiries - what is going on", and further that he had informed them on that occasion that "I would most certainly oblige and when I get back to the office I will make general inquiries to that effect". The foregoing references to "visa" were plainly in context to a tourist visa. This conversation occurred in the presence of an interpreter. He was emphatic that his instructions from Nicolae were "... to make general inquires as to why they were detained at the airport on the 13th, I think, or something like that". Mr Harolovic was further emphatic that he never received instructions from the Applicants to apply for a protection visa, nor was any enquiry about protection visas made by him on their behalf. I will return to the subject of the Applicants' alleged involvement with protection visa applications in a subsequent context, being a subject which counsel for the Respondent fairly volunteered to have little if anything to do with the issues to be resolved in the present Applications, but which nevertheless needs to be later referred to at least in relation to issues of credit raised by the Respondent in relation to the Applicants.
38 The testimony of Oleg initially in affidavit form will now be summarised. I have already set out his family details in [1] above, and much of what I have recorded already in the context of summarising Nicolae's circumstances of relevance or potential relevance applies similarly or analogously in relation to Oleg, since their visit to Australia was in the nature of a joint enterprise, and such visit encountered at the outset the same unfortunate circumstances at the instance of DIMA. As already indicated, unlike Nicolae, Oleg cannot speak, read or write English, but Oleg speaks fluent Moldovan and Romanian, both of which languages are said by Oleg to be very similar, and also speaks the Russian language. Oleg added the caveat that Moldovans speak Russian differently to those people from Poland who speak Russian, Ms Van Zywert having spent her early years as a resident of Poland, and having first studied Russian as a student. She became a qualified interpreter in the Russian language after her arrival in Australia.
39 Oleg testified that upon arrival at Sydney Airport, he was "cleared" by immigration and customs officers, and thereafter made his way to the KLM Airlines desk to locate his luggage, which had not arrived. He was approached by a male security officer and taken to an office where he met "a woman officer", who spoke in Serbian "but including some English words". That person was obviously Ms Van Zywert. Then he was separated from Nicolae and taken to a separate room, whereupon the following conversation is said by him to have occurred, apparently with Ms Zywert:
"10. The officer then asked me:"How are you going to prove that you're a tourist?"
11. I couldn't understand what I should prove. I said
"I have just passed Customs. What do you want as proof?"
12. She said:
"You just have to give me the evidence that you're a tourist. Proof why you think you're a tourist".
13. I said:
"I came to visit the Paralympics and to look around Sydney, to visit interesting places, Harbour Bridge and the Opera House, animals in the zoo, to look at the Kangaroo and museums, just to have a look, and if its going to be possible for us to visit Melbourne, and on 18th October to go back."
14. She said:
"Why then didn't you come for the Olympic Games because this visa was granted to you for the period of the Olympic Games."
15. I said:
"I have personal reasons. I have an injury. I was bitten by a dog and needed to stay at home for a little while.
We have reservations for 25 September to come to Australia but we cancelled."
16. At the time we were talking around a desk. The officer was standing or sitting across the desk from me. I put my right arm out in front of her with my palm upturned. The dog wound was in my right wrist. It was covered by a bandage. The officer looked and said nothing.
17. She then said:
"Now is the Olympic Games. Many Russians come here. Some Mafia and criminals. How do I know you're not criminals. Even from Moldova some people come here and apply for protection visas."
18. I didn't understand what a protection visa was exactly. I got the sense that it was a visa for some sort of political reasons. I said:
"Look at my hands. I'm not working hard. I'm a dentist. I can give you proof. If its going to be good enough I can send a fax home so they can send a copy of my diploma so that I can prove I am a doctor. I have a job."
She said:
"Yes, that'll be good enough you'll be out in twenty minutes.""
40 At some point in time, Oleg was also interviewed by Ms Baxter. It was seemingly late in the evening, when protestations of good faith on the part of each Applicant were apparently going unheeded, that either Ms Zywert or Ms Baxter allowed Oleg to telephone his wife in Moldova, and he requested his wife to fax to him at Sydney Airport a copy of his diploma in dentistry. About twenty minutes later, a faxed copy of the diploma arrived. Oleg also showed Ms Van Zywert a copy of a travel insurance document issued at Chisinav in his favour for the sum of US$30,000.00 by "Compania de assigurare `Galas' S.A.". He explained that he obtained this health insurance certificate at the time he received his visa from Moscow. I should add that Nicolae had obtained similar insurance cover, which had been arranged through Ambassador, and that relevant factor was doubtless discussed with Ms Zywert and Ms Baxter as well.
41 Oleg gave affidavit evidence as to the following conversation having occurred at some point in time during the evening with a female DIMA officer, which would have been Ms Zywert or Ms Baxter:
"22. I said:"You probably have all my details. When I lodged my application in Moscow I lodged all my details. If you want, you can check with Moscow."
23. She said:
"I don't know, it's not my business".
24. A short time later, the officer gave me a form. I couldn't read the form which was in English. The officer said:
"Within the next ten minutes you should prove you're a tourist or else we'll send you back home."
25. The officer asked me how much money I had. I said:
"I have seven hundred and fifty dollars US."
26. The officer asked me to show her the money. I took the money from my pocket. It was held by a rubber band. I showed her the money. The officer asked:
"Why don't you have credit cards."
27. I said:
"The people in Moldova don't have credit cards, just cash money. That's why we brought cash with us."
28. The officer asked:
"Do you have any reservations in a hotel somewhere?"
29. I said:
"It's almost impossible to do it from Moldova. We know that it costs about sixty dollars for one night. We have some friends here and if we fail in getting a hotel we'll take a taxi."
30. The officer said:
"Food and all thing are very expensive here."
31. I said:
"Five days is not a problem for us."
32. The officer then went away. She took the form with her. The officer came back with the form after a short time. The form now had writing in it. The officer said:
"Just sign here."
33. I said:
"I don't understand what it means."
34. The officer said:
"I'll get the Manager."
35. The Manager came. The Manager spoke with the officer. The officer said:
"We'll go though this again tomorrow.""
42 Thereafter Oleg was placed in handcuffs and taken with Nicolae by security officers to Villawood.
43 In his oral testimony, Oleg through the Court interpreter, added to his affidavit testimony reference to the following circumstances:
(i) He was holding in his hands during the interview a camera.
(ii) Ms Van Zywert expressed at least initial cynicism with Oleg's claim to professional status. He claimed that "I had the impression that when she was speaking she was speaking to a robot. There was no emotion in her way of talking".
(iii) In the context of his explanation of the delay in his departure to Australia by reason of being bitten by a dog, he unbandaged the wound near his wrist for her inspection; I would add that at the time of his oral testimony, he displayed to the Court a scar of about one and one half centimetres in length and about six millimetres in width; he asserted that the bandaging was more extensive when the wound was first sustained.
(iv) In relation to the contentious sum of US$300 which, as in the case of Nicolae, Oleg outlaid for his visa, he said:
"... we explained that it was for the person that was in between. I tried many times to explain but I still think that she did not understand exactly the situation with this company."
(v) Oleg had previously travelled outside of Moldova in Romania, Hungary and Poland, and also in Russia, in the latter case by aeroplane; he asserted that he had never needed a visa for that purpose, his travel documents being a passport and identity card. He had never previously dealt with Ambassador and Eximitur, and it was Nicolae who "organised things" with those entities.
44 Under cross-examination as to what language Ms Van Zywert used in conversation with him, Oleg gave the following answers:
"On 13 October I heard nobody that spoke Russian.'"Madam Van Zywert, the lady that spoke with me, spoke some Serbian and some Russian. She wasn't speaking Russian, the real language. For example, I would like to make a comparison, is like somebody speaking some English and some Flemish language."
"She was speaking more like Serbian language. The Serbian language sounds a little bit like Russian and she needed to ask me the questions many times so that I can understand what does she actually wants (sic) from me. What does, what is it that she is trying to explain to me? She was saying to me repeatedly the same question."
45 One particular instance of cross-examination involving Oleg should be recorded from the transcript, from the perspective of both parties to the litigation:
"Q. And you'd agree with me, wouldn't you, that at all times from at least 16 October, last year, you've been aware that you could leave Australia and go back to Moldova, without any impedient from my client?A. Then what was the purpose of coming here? Just to come here to be sent home. Or to see the detention centre.
Q. But you know you could go back anytime if you wanted to?
A. Not that I knew that, I'd seen the intention from the Department to have us sent back home, no matter what, without any explanation, without anything."
I then intruded by asking Oleg how his wife and children had been financially supported while he had been in Australia, to which he replied:
"My wife is working, and not only that, the money I used to come to Australia, was not the money that I have."
The testimonies of the Respondent's officers not already incorporated above
46 I will now record certain features of the testimonies given in the proceedings on behalf of the Respondent in relation to the events of 13 October 2000. Such testimonies were mainly provided by the following DIMA officers stationed at Sydney International Airport:
(i) Loretta Baxter, DIMA's Sydney International Airport Assistant Manager;
(ii) Arlette Van Zywert, Immigration Inspector;
(iii) Carolyn Anne Stapelton, Administrative Officer.
Testimony of Ms Baxter
47 Ms Baxter was the most senior of the three to DIMA officers give evidence, and was in fact the decision-maker, and it is therefore appropriate that I first record her testimony. In her first Affidavit, which was made on 22 March 2001, Ms Baxter disclosed her responsibilities of office as including the following:
(i) checking information from the migrant alert list, the same being a departmental computer system containing summaries of details of visa holders made by DIMA, where suspicions have arisen in the mind of a Departmental officer in relation to their documentation or bona fides;
(ii) overseeing and conducting interviews with visa holders, and making decisions concerning their bona fides.
Her ultimate decision-making adverse to the Applicants was explicitly related to their bona fides (see [52] below).
48 The interviewing process was initiated by Ms Van Zywert informing Ms Baxter of the cancellation of Nicolae's visa, and his arrival in the airport baggage claim area at the Airport with his cousin Oleg. Ms Baxter instructed Ms Van Zywert to interview the Applicants. Ms Baxter said that it was a busy night at the Airport and there were several other interviews in progress. The errors of judgment attending the decisions which I will later identify may well be partly attributable to the pressure of work on that evening. She gave guidance to Ms Van Zywert as to the information she should seek to obtain, and estimates that she spent forty-five minutes on the telephone with Ms Van Zywert throughout the course of the evening after the arrival at the Airport of the Cujbas. Ultimately Ms Baxter interviewed Nicolae and Oleg in that sequence, and as to Oleg, she interviewed him twice. In her principal affidavit, Ms Baxter devoted virtually the entirety of her testimony in relation to her conversations with Oleg, and did not mention any conversation she may have had with Nicolae. Ms Baxter used Ms Van Zywert to interpret the conversations which ensued during the two interviews she conducted with Oleg.
49 After completion of the first interview with Oleg, Ms Baxter formed the opinion that Oleg was not a bona fide tourist, notwithstanding that, to use her own expression, "the Cujbas appeared to be nice people". She gave the following reasons for the conclusion that Oleg was not a bona fide tourist:
(i) the reason why he "missed" the Olympics was because his grandmother's death had delayed him;
(ii) he was carrying on $800 with him;
(iii) he had booked no accommodation, as it was too difficult to do so from Moldova;
(iv) he had no wallet and no identification except for his passport.
No contemporaneous note of this first conversation was adduced in evidence, and Ms Baxter did not profess to have made any such record. The reference to $800 was incorrect, the amount on hand being US$800, in effect twice the amount which Ms Baxter first stated. Ms Baxter subsequently repeated reference to $800 in her oral evidence, but then corrected the same to US$800. My impression however was that the references to $800 in Australian currency were merely oversights on her part. As to the inadequacy of identification, I have difficulty in understanding why Oleg's passport would not have constituted appropriate evidence of identification, and in any event by the time a copy of Oleg's tertiary qualification had been faxed from Moldova to Sydney Airport, satisfactory identification had been plainly provided in the circumstances of the case. Ms Baxter conceded incidentally an absence of any previous encounter with people from Moldova.
50 At some point in time, apparently during the course of this critical evening, Ms Baxter telephoned DIMA's office in Moscow and spoke to a migration officer there apparently employed, who thereafter forwarded Oleg's visa application immediately to DIMA, but Ms Baxter decided that she "needed more information". She did not indicate whether such visa information included the title indicia to Oleg's apartment in the capital city of Moldova (as to which see [1] above). When speaking to the Australian embassy in Moscow where DIMA personnel are said to be employed, a DIMA officer, whose name she could not recall, informed her that "... a number of Moldovans who had applied for visas to travel during this time had overstayed and applied for protection visas". Ms Baxter said that she was given the same information by Ms Shelley Fredericks, a Sydney DIMA officer. Neither the number of Moldovans who were said to have "overstayed", and if so in what circumstances and for how long, nor the number who had not and instead returned home during their visa period, was ever proffered on behalf of the Respondent. That was a significant shortfall in the Respondent's evidence provided to the Court. Ms Baxter next spoke to Mr David Watt of the Onshore Protection Section of DIMA, and she testified that "... he confirmed that a number of Moldovans had come to Australia and applied for protection visas", but again, no details of the specific number who had done so, compared with number who did not, were provided to the Court. This was another significant shortfall in the Respondent's evidence. Mr Watt did not give evidence or provide documentary material to the Court. Ms Baxter next spoke to a DIMA officer, Ms Shelley Fredericks of the Onshore Protection Section, who was said to have been "... working on cases involving Moldovan visitors who had lodged Protection Visas", and Ms Baxter was given "... information about the organisers of the visas and the processes they undertook". What that information happened to have been was never provided to the Court. In all events, Ms Baxter concluded that such visa organisers appeared to be the same as the persons who had organised the visa for Oleg, but she did not disclose in her evidence any detail of what that information happened to have been, or the basis otherwise for such conclusion. When later cross-examined on the subject, Ms Baxter said that she was "not sure" how many Moldovans had overstayed or lodged protection visa applications, but that it was the "majority", and she thought that the number was "between 11 or 14".
51 Ms Baxter's Affidavit next provided an account of her second interview with Oleg, which took place again in the presence of Ms Van Zywert, and also of Ms Stapelton, and on this occasion, notes were said to have been taken, though none were produced in evidence to the Court. Ms Stapelton said that she destroyed her own handwritten notes after she prepared her written report. This second period interview took about twenty-minutes. Ms Baxter estimated that the period of time which passed from the beginning of the first interview to the end of the second interview was about two and one half hours. That period of time thus tends to reflect the hesitation which must have visited Ms Baxter concerning the justification for DIMA's supposed decision to cancel the Cujba's visas before they might depart for Australia, notwithstanding that she was apparently not only engaged that evening with the Cujba's, but also other interviewees. The relatively scant details provided by this first affidavit of Ms Baxter in relation to the second interview were as follows:
"25. At this interview, through Arlette Van Zywert I told Oleg Cujba about the Moldovans coming in and lodging refugee applications and then asked him whether he had anything to say.26. He said through Arlette Van Zywert that he did not want to stay in Australia and he was a dentist in Moldova.
27. During the second interview I also asked Oleg Cujba through Arlette Van Zywert if he had any business cards and he said he did not."
It suggests an appreciable lack of memory recall of what she was told during the evening in question, apart from what appears in her report extracted at [54] below.
52 Thereupon Ms Baxter said that she directed Ms Stapelton to complete the form of "Cancellation of a temporary visa under section 116 of the Migration Act 1958" as set out in [19] above. After Oleg had also been given the specified time of at least ten minutes to respond thereto during which time it appears that Oleg's (and Nicolae's) tertiary certificates and qualifications were obtained from Moldova by fax and produced to the DIMA officers, Ms Baxter prepared a form of "Refused Immigration Clearance Running Sheet", in which the reason for refusal was stated by her to be "bona fides". The boxes in the document relating to the cash of Oleg on hand as counted by DIMA, and the language of interpretation were left blank. Ms Baxter's Affidavit concluded as follows:
"41. Further, I made the decision to cancel the visa based on information obtained from a number of sources including information obtained from the Applicant himself at interviews attended by me.42. I did not make the decision to cancel the visa based on any directive, policy or rule. I made the decision based on the careful weighing up of information
43. I have never seen or heard of a directive, policy or rule singling out a particular nationality."
For reasons which appear in this judgment, I am unable to accept that Ms Baxter engaged in any such "careful weighing up of information", whatever such "information" was specifically meant to have been.
53 In her oral testimony to the Court, Ms Baxter included the following matters of significance to her decision-making additionally to what I have already recorded:
(i) The very circumstance that the Applicants paid US$300 to Ambassador for arranging their respective visas connotes that "... it's usually part of a racket"; I would observe that a basis for her apparent underlying assumption that Oleg and Nicolae were privy to any such "racket" would have been inherently difficult to justify, in the light of the professional, family and proprietary circumstance of these two men, and her admitted recognition of the Applicants as apparently "nice people"; moreover for the Applicants to have obtained their visas directly would have involved two days vehicle travelling time from Moldova to the Australian embassy in Moscow, and again on return;
(ii) The above sum of US$300 covered the costs of the Applicants' travel insurance, as well as Ambassador's fees, which was explained to Ms Baxter's. When asked what was the benchmark for determining whether US$300 was an excessive insurance premium for a US$30,000 cover, Ms Baxter conceded that "I am just really going on insurance here, when you get insurance here to travel overseas", hardly a reliable basis for application to circumstances in Moldova, being circumstances which Ms Baxter said she had never previously encountered;
(iii) In her experience, there have been "so many actual cases where the image doesn't live up to the reality", thereby highlighting the administrative imperative, in cases of suspicion by association with nationality, for DIMA officers to act swiftly in the notification of cancellation process. Any such "swift" notification did not unfortunately occur in relation to the Applicants (see again [14] above). She then added "... we have many people who are millionaires who overstay their visas, and we actually had British Lords who have overstayed their visas, so really, it doesn't really matter what their background is or how much money or what occupation, its really about the intention...". But of course, intention depends normally upon the existence of at least some viable evidence, if a person's statements of intention are to be reliably rejected as untrue; incidentally, no suggestion was proffered by Ms Baxter that any such offending British millionaires were subjected to handcuffing and forced detention in Villawood;
(iv) Ultimately, as I have comprehended the relatively limited and largely unspecific and unsatisfactory nature of the evidence placed by DIMA before the Court in these proceedings, the pre-eminent and critical factor which operated in the decision-making process here involved was undoubtedly "... the way they (the Applicants) obtained their visa... and the organisation they used...";
(v) Her concession in cross-examination that cheap accommodation was then available in Sydney which the Applicants would be able to find, in effect by taxi, and understandably so, since by 13 October 2000, the Olympic Games events had been concluded (see [7] above);
(vi) Her acceptance of the fact that Nicolae was "... not only a qualified lawyer but was in receipt of an income and worked for a large corporation and that he had a university qualification", and further that he was engaged to be married;
(vii) Her further acceptance of the fact that the respective qualifications of the Applicants as a lawyer and dentist did not carry the consequence that they would be able to pursue such professions in Australia;
(viii) She conceded that ownership of a home by each Applicant in Moldova was a factor in favour of a positive conclusion as to their respective intentions; and
(ix) She was unaware of any DIMA communications with the Ambassador, or the identity of the head person of the Moldovan National Olympic Committee.
Notwithstanding the foregoing matters and in my opinion incredibly, Ms Baxter would not accept Ms Van Zywert's diary note that "it was touch and go" (see [17] above), asserting that "... there's a lot of different people who actually do come to Australia to work... to send money back or to set up a new life in Australia".
54 Ms Baxter's written report referred to in [51] above, so far as it related to the events of 13 October 2000, was in the following terms, the same being additional to the reports of Ms Van Zywert and Ms Stapelton extracted at [21-22] above:
"SUMMARY OF INCIDENT/INFORMATIONTwo Moldovan males (cousins) arrived on the KLM flight on Friday night 13 October 2000. Both had 676 visas granted on 21/9/00 for up to three months single travel. Visas were valid for entry until 20 October 2000. Both were refused entry.
"1. CUJBA Nicolae 19.12.1977 - Visa already cancelled by the Overseas Post.
Claimed to have recently graduated from State University (Law).
Father rewarded him with a trip to A/A. US$780 funds.
Decision was made not to revoke the cancellation.
2. CUJBA Oleg 04.04.64 - valid visa.
Claimed to be a dentist. Said Overseas Post called his clinic many times and he can afford trip to Australia.
Decision made at SKSA to cancel visa and refuse entry.
Both went to an agent called Tanya who worked for `Ambassador' travel company. Ambassador completed visa applications for them and sent them to the Australian Embassy. Paid agent US$300 for application and visa. Nicolae stated that the agent told him he required a sponsor and the head of the Moldovan National Olympic Committee provided the required support for the applications. This provides a link between the applicants and the other Moldovan applicants.
They travelled to Romania to buy the ticket to Australia. Bought the ticket from another agent EXIMTUR - on Cluj, Napoca in Romania as it was $300 cheaper than in their own country.
Paid for travel insurance.
Travelled from Romania to Budapest - Amsterdam-Sydney.
Both applicants are booked on a return KLM flight from Sydney on 16 October 2000 at 7:00pm.
12 Moldovan Nationals with similar profiles lodged PV applications in September and OP consider above applicants may lodge applications if landed.
We have since learnt that Moscow conducted movement checks of 72 Moldovan nationals who had obtained 676 visas for the stated purpose of watching the Games. Most if not all had the written support of the National Olympics Committee. The president of the NOC advised DIMA staff in Moscow in July 2000 that any applicant supported by him signed an understanding that they would return home at the end of the Games.
According to Moscow, as of 12 October, their checks indicated the following:
6 arrived and departed;
44 arrived and not departed;
2 were refused entry at Sydney Airport on bona fide checks;
20 had not yet travelled and all but one were cancelled on 11 and 12 October on the grounds that purpose for travel no longer existed. The remaining visa in group is held by a deputy in the Moldovan Parliament and ceases on December 2000.
Moscow will consider whether there are grounds to pursue issue with Moldovan authorities without prejudicing the claim of PV applicants.
..."
The report then proceeded to refer to certain diarised events of 16 October 2000, including the following:
"PMO Moscow advised on 16/10/00 that Oleg Cujba who held a valid visa should have been included with the group of 20 whose visas were cancelled on 11 and 12 October prior to travelling. His omission was an oversight."
When this report was made is unclear since its date of preparation does not appear on its face.
Testimony of Ms Van Zywert
55 The testimony of Ms Van Zywert was primarily contained in her first affidavit. Though Ms Van Zywert's was not born of Russian parents and her secondary and tertiary education was in Poland, she professed a proficiency in the Russian language, having once been an exchange student engaged in visitation to Leningrad. She denied having experienced difficulty in conversing with Oleg on the occasions of 13 October 2000, despite being cross-examined on the basis that she had not been linguistically qualified enough to have conversed with the Applicants in Russian. As in the case of Ms Baxter, she said that each of the Applicants told her that the reason for their delay in arrival in Australia was because their grandmother had died on 15 September 2000, which she specifically recalled was the date of commencement of the Olympic Games. The Applicants contested the testimony of Ms Van Zywert (and also that of Ms Baxter) that they had been told that their grandmother had been seriously ill and that they were in fear of her dying, but it does not seem to me that the conflict is sufficiently material to resolve. It is appropriate that I set out certain paragraphs of her primary affidavit below, and offer observations in relation thereto, whilst keeping in mind that Ms Baxter had been the decision-maker:
"16. I then asked them what I call "standard questions", that is questions about the following:* I asked them what sights they wished to see and they replied they just wanted to look around.
* I asked them what interested them in Sydney and they replied they wanted to just look around.
* I asked them if they had accommodation booked and they replied "no".
* I asked them if they had friends or family and they replied "no".
* I asked them about money and they told me how much they had and Oleg Cujba showed me a role of cash.
...
(I interpolate to record that the third and fourth matters were common ground, and the fifth matter was correct, and it was additionally common ground that both men had in their possession US$800 or thereabouts, despite a number of references by both Ms Van Zywert and Ms Baxter in their affidavit evidence to $800 in Australian currency, being references which I have already indicated to be unintentional).
19. I went back to the interview room where both the Cujbas were and I asked questions about how they came to obtain their visas.
20. They told me that it was obtained through an "accredited" person, not a travel agent or immigration agent, but someone who was arranging paperwork for visas for the Olympic Games.
21. I asked the Cujbas about their jobs and Nicolae told me he had just finished a law degree and had started work for his father and Oleg told me that he was a dentist and he showed me his hands.
...
25. I went through the Cujba situation again with Loretta Baxter, including the following points:
* Their visas were through the Head of the Olympic Committee.
* They were late due to their grandmother dying.
* What their jobs were.
* They wanted to look around but could not specify anything they wanted to see.
* They had no friends or family.
* They had about $800.00 each.
* They had no accommodation booked.
(The above reference merely to "jobs" understated the significance of the Applicants' current professional careers, to which Ms Van Zywert here made no mention; as to "their grandmother dying", I do not think, as earlier indicated, that any point needs to be made to the discrepancy between that account with the Applicants' account of their grandmother nearly dying).
26. Loretta Baxter asked me several times to ask them again what they wanted to see and each time they could not list anything specific.27. Loretta Baxter asked me to ask them again why no accommodation was booked and they kept saying that they could not do this from Moldova.
28. With Loretta Baxter present I asked them if they know what living expenses are like here and how much to expect to pay for a room. They looked at each other and one of them said that they did not know.
29. I then asked what they would do if they ran out of money and one of them replied that they would get more money from Moldova.
30. I asked them if they would be able to arrange money from Moldova in a short time and neither of them answered.
...
(This subject was controversial, as elsewhere indicated in this judgment, but in any event, the return airflight was due to take place only about five days later).
...32 Loretta Baxter then said, in English and I translated into Russian, that she was not convinced that they were genuine tourists.
...
35. At this time I told him that Carolyn Stapleton was going to give him a Notice of Intention to Cancel and I think I said that his visa was granted for the purpose of attending the Olympic Games and the Olympic Games were over. I recall Oleg Cujba kept saying that his Grandmother had died.
(Apparently Ms Zywert had not appreciated the administrative directives of MSI-259 as extracted in [8] above, addressing as they did in a composite way for Departmental purposes the Olympic Games and the Paraplegic Games as a combined albeit sequential event).
...
38. Oleg Cujba said he wanted to call Moldova to get certificates and he was allowed to do this. This took about half an hour.
...
40. The Cujbas gave their certificates to me and I told them I would show them to my manager.
41. I took the certificates to Loretta Baxter and told her what they were.
...."
(Nothing was said above by Ms Van Zywert as to what significance, if any, she accorded to the abovementioned certificates, which related of course to the Applicants' professional qualifications).
56 Ms Van Zywert claimed to have made contemporary notes of her conversations with the Applicants which she said she transferred into her report, and then shredded. She was the author of the letter of 13 October 2000 addressed to Nicolae set out in [15] above, of the letter to Nicolae of the same date set out in [16] above, and of the file note set out in [17] above containing the opening words "it was touch and go". She was also the author of the subsequent report made on 18 October 2000 set out in [21] above.
57 In her second Affidavit, Ms Van Zywert denied many of the statements which the Applicants claimed in their Affidavits to have made to her. I will record one particular denial, at this point of the narrative of her evidence, in the light of the handwritten material claimed by the Applicants to have been brought into existence in the course of the interrogation in the evening of 13 October 2000 referred to in [31] and [37] above:
"2. ...(e) ... I say that [Oleg] never said to me that he was here to visit the Paralympics, Harbour Bridge, Opera House, animals in the zoo, Kangaroos, Museums or to visit Melbourne."
58 In her oral testimony, Ms Van Zywert said the following which should be recorded:
(i) She denied seeing a bandage wrapped around Oleg's right wrist, where Oleg claimed he had been bitten by a dog.
(ii) She accepted that her letter of 13 October 2000 set out in [15] above did not refer to any ground for cancellation of Nicolae's visa.
59 The following interchange occurred during the course of her testimony, which I cite from the transcript:
"His Honour: Did you explain to either of these gentlemen what was the information that had been received from overseas, of which the department was previously unaware? We did, I did.Did you make a record of what you so explained? Yes its in my record.
Can you tell me what page?
(Counsel for the Applicants then intervened by referring me to the following passage in Ms Zywert's report set out in [21] above, namely "The Assistant Manager, Loretta Baxter and Inspector C Stapelton were present when both PAX were explained over and over again the reasons for cancelling their visas").
I was just wondering whether the reason was ever stated.
Mr Killalea: The question is, I think, still with you, Ms Van Zywert, is there something more where you set out the reasons why their visas were cancelled?
His Honour: Is there a document? No, there's nothing apart from this."
Testimonies of other DIMA officers
60 Ms Stapelton made a brief affidavit, upon which she was not cross-examined. She was present during at least some of the questioning of the Applicants by Ms Baxter and Ms Van Zywert, and she indicated that she did not recall "... being told that Oleg Cujba was delayed in travelling to Australia because he was bitten by a dog and I believed that he had been delayed due to the death of his Grandmother in September". She did not profess however any understanding of the Russian language. I do not derive any significant assistance from her Affidavit, only because it addressed essentially formal and procedural matters. Nor do I derive any significant assistance from Mr Moussa's evidence, which is no reflection upon him whatsoever, but merely a reflection of the circumstance of his more distant involvement with the Cujbas. He was the Airport Manager of DIMA, and confirmed that Ms Baxter spoke to him on the telephone concerning only the decisions she proposed to make, in relation to which he merely said as follows:
"6. I say that the decision to cancel Oleg Cujba's visa and not to revoke Nicolae Cujba's cancellation of visa on 13 October 2000 were decisions made by Loretta Baxter."
Events subsequent to 13 October 2000
61 It becomes necessary to add to an already lengthy (but necessary in the light of the issues propounded by the Applicants) recitation of the facts and circumstances adduced in evidence to record certain post 13 October 2000 events, notwithstanding what I thought to be commendable frankness on the part of counsel for the Respondent to the effect that the main subject of such later events, namely purported protection visa applications supposedly made on the part of the Applicants, were "... really only marginally relevant at best to a question of credibility. For instance, there is absolutely no doubt in the world [that] on 13 October there was no claim of protection and by 26 October there was no claim...". I will firstly refer to the documentary evidence contained in the DIMA records on the subject of the Applicants' supposed protection visa applications.
62 On the Monday following 13 October 2000, namely 16 October 2000, the Applicants were returned to Sydney Airport in handcuffs for the purpose of being transported back to Budapest. The report of Ms Van Zywert appearing in [21] above contained the following concluding statements not there extracted:
"The airline (KLM) was contacted, all requirements served and return flight booked. However at the last moment, before boarding, both PAX decided to apply for protection. The assistant manager for the day, Sally McCourt decided to return PAX to IDC Villawood where they would be given the opportunity to lodge their applications."
63 A file note to similar effect was made by Paul Wyllie of DIMA, who stated by affidavit that on 16 October 2000, Nicolae told him that he and Oleg wanted to make an application for protection, and hence the reason why they were not removed on that day from Australia.
64 The report of Ms Stapelton set out in [22] above contained similar, subsequently added, information, that report being in the nature of a continuing document, and in addition contained the following:
"NB. Note from Inspector Paul Wyllie - Both PAX stated they were advised by another IDC Detainee to apply for protection when they get to SKSA just before departure.Both PPTS and tickets are at SKSA
19/10/00
Update: call received from IDC neither PAX have lodged a protection visa. Arrangement made with KLM for PAX to depart on 20/10/00 at 1820 per KL 844
20/10/00
Update: Note on papers that PAX have lodged protection claim 20/10/00. KLM advised departure would not proceed."
65 Forms of Protection Visa Applications bearing the respective signatures of the Applicants and the date 20 October 2000 are contained in DIMA's records, together with what appears to be a standard form of DIMA letter sent on 25 October 2000 to each of Oleg and Nicolae commencing as follows:
"Your application for a Protection (Class XA) Visa has been received and is being processed in this office. Your request for Application Assistance has also been received and Craddock Murray & Neumann Solicitors (02 9283 4755) have been allocated to your case.As at the date of this letter no refugee claims have been received in connection with your application. You now have three equivalent working days from the time of this facsimile to provide such claims.
...."
As indicated in Ms Stapelton's report extracted in [64] above, on 20 October 2000 the Applicants were taken once more to Sydney Airport for the purpose of deportation. Oleg claims to have said to an "ACM officer" that "You can't deport us without an explanation", and that it was in the context of the confrontational events of that day that the Applicants signed the abovementioned Protection Visa Applications.
66 A file note of Greg Mitchell, apparently a DIMA officer bearing date 25 October 2000, records the following:
"Two detainees in stage two:Oleg Cujba
Nicolae Cujba
have approached me with an interesting situation. I had attempted to give them the standard letter from DCU, that acknowledges the application and informs them which agent will be appointed to them under the IAAS scheme.
They basically would not have a bar of it. They have both engaged a private agent, who is coming to see them tomorrow.
I have spoken with this agent tonight and he has little information on them, except to say that he was unaware that they had applied for PV. Another detainee who had come with them to interpret (Milan KESIC), stated the pair are highly suspicious as they are not aware of what is going on around them. They are unaware that they have applied for PV and do not seem to understand what an application for PV means.
I have spoken to these two detainees before, and they are indeed very suspicious of everything that is going on with their cases. They have requested Federal Court forms from me on Monday. I believe this may be something to do with their visas being cancelled at the Airport."
67 A DIMA file note of 30 October 2000 by an unidentified author contained the following:
"I spoke with Oleg and Nicolae CUJBA on Friday 27/10, using a Russian interpreter from TIS. I asked whether they had met with their lawyer as planned and what were their plans, ie Do they intend to proceed with the Protection Visa applications? They advised me that they are not interested in the protection visa at all. Their lawyer "is looking into things" for them, and they "will see what we will do next". They are claiming that they are just tourists who came here on valid visas and then they were grabbed at the airport and told that their visas are cancelled. They claim that they told staff that they did not understand English, but they were given papers in English, which they had to sign. Everything that they said was contradictory to what airport staff have written in their referral report. These two men refuse to take responsibility for the things they have done, such as applying for Protection Visas, claiming "someone" told them what to do. They also do not want to believe that the cancellation of their tourist visas is non-appealable, preferring to wait and see what their privately appointed lawyer will be able to arrange for them."
68 By letter dated 6 November 2000, Mr Harolovic of Sukkar & Associates, Lawyers of Burwood, wrote to a DIMA officer Ms Markowski as follows:
RE: OLEG CUJBA and NICOLAE CUJBAWe refer to the above matter and advise that we act for and on behalf of the above named.
Please find enclosed the following:
1. Form 956 signed by Oleg Cujba.
2. Form 956 signed by Nicolae Cujba.
It is our understanding that both of these men were detained at Sydney Airport as a result of their Visa being cancelled while they were in transit to Australia.
Our instructions are that both of our clients are bona fide visitors and that their sole intention was to visit Australia during the Olympics.
We would appreciate if you could immediately contact our office and provide any papers or intention on the part of DIMA.
We look forward to your prompt reply."
The abovementioned forms 956 were signed authorities for Mr Harolovic to represent the Applicants. I have already referred to the evidence of Mr Harolovic given in the proceedings, and in particular to his insistence that the Applicants never instructed him to apply for Protection Visas: see [37] above. In addition to what is there recorded, Mr Harolovic testified as follows:
"When I saw that they were absolutely lost, they didn't know whether they were coming or going, to put it in a pedestrian sort of language."
He stated that he was informed by the Applicants that they had earlier signed Protection Visa application forms, but in a context which he described in cross-examination as follows:
They were angry about it... the impression I got, I mean I am recalling five or six months ago, I had, well again this is only my subjective impression they were as if they were made or the interpreter, Mr Kesic, said they were made or told by DIMA to lodge this application and they will say, look, you are refugees and lodge that. That's the words... I don't know the circumstances of who filled it out for them or anything like that."
A DIMA handwritten file note of 3 November 2000 contains the following, consistently with Mr Harolovic's testimony.
"A/N Agent Robert Haralaich (sic) (ph 0713.4438) advised that neither wants to apply for protection, however, they want to sue DIMA for unlawful detention (never mind they have their visas cancelled)."
69 A file note of the above DIMA officer Ms Markowski of 6 November 2000 was in the following terms:
"I have just spoken to the abovenamed. They insist that they did not lodge any Protection Visa applications, even though we all have signed forms from them on our files. I asked them whether they will write a letter to withdraw their applications, but they said that as they don't believe they have applied, they will not withdraw. I explained that they will probably received a rejection letter as a result, but they just shrugged their shoulders."
As forecast by Ms Markowski, DIMA did write to the Applicants on 15 November 2000 as follows (inter alia):
"As no claims were submitted by me at the time of lodgment, your application is considered invalid and cannot be accepted in its present form.
If you have no other application before the Department, you should make arrangements to depart Australia...."
Thereafter somewhat extraordinary events occurred which prolonged DIMA's decision-making in respect of the same supposedly Protection Visa applications, the viability of which the Applicants had been consistently repudiating as set out above. In the upshot it was not until 5 April 2001 that DIMA resolved finally to purportedly reject the Protection Visa applications which the Applicants had in any event been plainly repudiating from the outset, in the circumstances outlined in [66-68] above.
70 I find that there is no basis for any adverse inference to be drawn for any purpose in relation to the creditability of either Applicant, or otherwise, arising out of the fact of their signatures appearing on Protection Visa applications in the circumstances I have narrated. I accept without qualification the account of the Applicants set out in their respective Affidavits that the said Applications were signed by them upon the basis that "A woman... from Immigration" informed them that the same constituted "some papers" relating to the provision of an interpreter for them, and further that Nicolae told a representative of Craddock Murray Neumann (already identified in [65]) on 26 October 2000 that "... I don't need a protection visa and I didn't apply for this kind of visa. If you want to help me, help me get my tourist visa back". The documentary material I have received wholly supports the credibility of the Applicants' claim to have never involved themselves knowingly in any Protection Visa applications.
The cancellation of Nicolae's tourist visa (ie 676 visa) revisited
71 On 1 March 2001, a series of extraordinary events occurred, for the reason, I would infer, that DIMA must have come to the realisation in the course of proceedings already on foot in this Court that no effective decision may have previously been made in relation to the apparent cancellation of Nicolae's visa back in early October 2000. In that regard I have already mentioned that DIMA never produced any evidence in writing of any such cancellation, which was said by DIMA to have been notified by "official post" to Australia's Moscow Embassy.
72 On 4 March 2001, Ms Baxter on behalf of DIMA wrote to Nicolae at the Villawood Immigration Detention Centre the following letter:
"Please see attached notice of cancellation letter from our office in Moscow.This is to advise that your visa was cancelled on 12 October 2000 under section 128 of the Migration Act 1958 because the circumstances which permitted the grant of your visa no longer exists, pursuant to section 116(1)(a).
Your visa application was lodged in Moscow via the National Olympic Committee of Moldova who support your attendance as a spectator at the Sydney Olympic Games. Your visa was granted on 2 August 2000 for the purpose of your visiting Australia to watch these Games which were staged from 15 September 2000 to 1 October 2000. As you had not entered Australia prior to the closing of the Games, it was considered your purpose to visit Australia no longer existed and your visa was cancelled while you were still outside Australia.
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(s) for cancellation did not exist, the cancellation of your visa will be revoked. If you cannot show that the ground for cancellation does/did not exist, but there is a reason why your visa should not have been cancelled, the cancellation of your visa may be revoked.
You may choose whether to have the cancellation of your visa reconsidered while you are here in Australia or you may choose to depart Australia and have the cancellation of your visa considered by the overseas post.
If you wish the cancellation of your visa to be reconsidered while you are in Australia, then you must respond to this Notification within 24 hours commencing from the moment of receipt of this letter. Please respond in writing.
If the cancellation of your visa is revoked, then you will be immigration cleared and permitted to remain in Australia. If the cancellation of your visa is not revoked, then you will be removed from Australia.
If you wish the cancellation of your visa to be reconsidered while you are outside Australia, your must leave Australia as soon as possible. If you do so, you have 28 days in which to respond to this Notification. You should direct your response to the Australian mission in Moscow.
Please advise the Immigration Manager at Villawood what you want to do.
If you do not respond to this Notification within the prescribed period, the revocation of the cancellation of your visa will not be considered. As you are an unlawful non-citizen, you will be removed from Australia.
Yours sincerely
Loretta Baxter
Position No: 7904
04 March 2001."
The statement in the above letter of Ms Baxter "... your visa was cancelled while you were still outside Australia" was unfortunate; the notice of cancellation was apparently made merely by "Overseas Post" from Australia on 12 October 2000, when Nicolae was already en route to Australia (see [12] above).
73 The enclosed "Notice of Cancellation Under s 128 of the Migration Act 1958" made by DIMA bearing date 1 March 2001 and again addressed to Nicolae read as follows:
"This is to advise that your 676 visa was cancelled on 12 October 2000 under section 128 of the Migration Act 1958. Section 128 permits the cancellation of a visa held by a person outside Australia when one of the grounds in section 116(1) applies to the visa holder. The reason for the cancellation is that the circumstances which permitted the grant of your visa no longer exist, pursuant to section 116(1)(a). Your visa application was lodged at this office via the National Olympic Committee of Moldova who supported your attendance as a spectator at the Sydney Olympic Games. Your visa was granted on 2 August 2000 for the purpose of your visiting Australia to watch these Games which were staged from 15 September 2000 to 1 October 2000. As you had not entered Australia prior to the closing of the Games, it was considered your purpose to visit Australia no longer existed and your visa was cancelled while you were still outside Australia.The Migration Act 1958 requires that you be given the opportunity to comment on why you think the ground for cancellation does not exist and/or to give reasons why your visa should not have been cancelled. If you are able to show that the ground(s) for cancellation did not exist, the cancellation did not exist and the Minister is satisfied from your response that there is another reason why the cancellation should be revoked, then the cancellation of your visa will also be revoked.
You may choose whether to have the cancellation of your visa reconsidered while you are in Australia or you may choose to depart Australian and have the cancellation of your visa reconsidered by the overseas post.
If you wish the cancellation of your visa to be reconsidered while you are in Australia, then you must respond to this Notification within 24 hours commencing from the moment of receipt of this letter.
If you wish the cancellation of your visa to be reconsidered while you are outside Australia you must leave Australia as soon as possible. If you do so, you have 28 days from the date of receipt of this letter in which to respond to this Notification. You should direct your response to the Australian mission in Moscow by 28 March 2001.
Any response you make to this Notice will be taken into consideration in deciding whether the cancellation of your visa should be revoked.
Please advise the immigration officer what you want to do.
Yours sincerely
Officer Patrick McGowan
Section Australian Embassy Moscow PN 20
Date 1 March 2001."
It may be observed that the sole reason ever advanced in writing to Nicolae as to the reason for cancellation of his visa was that "... the circumstances which permitted the grant of your visa no longer exist, pursuant to section 116(1)(a)", such circumstances not being specified, but probably being intended to refer to the finalisation of the Olympic Games but not of course to the Paralympics.
74 In response, Nicolae wrote to Ms Baxter at DIMA's Sydney Airport Office on 5 March 2001 as follows:
"1. I received Notice of Cancellation under s 128 of the Migration Act 1958, that my 676 visa was cancelled on 12 October 2000 in Australian Embassy, Moscow. The reason for the cancellation is that the circumstances which permitted the grant of my visa no longer exist, pursuant to section 116(1)(a).2. My visa was granted on 2 August 2000 for the purpose of my visiting Australia to watch Olympic Games. I'd like to mention that Para Olympic Games, in accordance with international rules, is a part of Olympic Games.
3. When Australian Embassy, Moscow granted me 676 visa understood that it wasn't only for Olympic Games but Para Olympics too, plus 102 months more, to enjoy my holiday (see my 676 visa).
4. I want intend to come to Australia for Olympic Games but was delayed for personal reason (my grandmother was seriously ill, near death), so I rescheduled my flight and come for the Para Olympic Games. Of course, I had come Australia to see the Opera House, Taronga Park, the Great Aussie beaches, Hourber Bridge, Sydney Aquarium, Kangaroos, Crocodiles, to make some photos, to visit my friends in Sydney and if it is possible from Melbourne too.
5. I have about 1,500U$ in cash, and access to further funds in Moldova if required. My friends could help me with accommodation on my holliday if necessary.
6. As the Migration Act 1958 requires I was given the opportunity to comment on why I think the ground for cancellation does not exist and/or to give reasons why my visa should not have been cancelled.
7. I ask you to accept this is ground for cancellation did not exist at that time, even now, and the cancellation of my visa must be revoked."
By this time, as will later be demonstrated, the Federal Court litigation had been underway for sometime, the initial filing of an Application for an Order for Review on the part of Oleg have occurred on 8 November 2000 (see [77] below).
75 On 6 March 2001, DIMA wrote again to Nicolae, apparently by fax, in the following terms signed by Ms Baxter:
"On 4 March 2001 you were notified that your visa had been cancelled under section 128 of the Migration Act 1958.In accordance with paragraph 129(1)(c) of the Migration you were given the opportunity to show that the ground for cancellation of your visa did not exist, or to give reasons why your visa should not have been cancelled. You were given this opportunity of 4 March 2001. You replied in writing on 5 March 2001.
I have considered all your comments set out in your written response. In accordance with Section 132 of the Act, I hereby notify you that I have decided not to revoke the cancellation of your visa. The reason for this is that I remain satisfied that there is a ground for cancellation of your visa under Section 128 and paragraph 116(1)(a) of the Migration Act, and that your visa should be cancelled.
As you do not hold a visa, and have been refused immigration clearance you will be removed from Australia as an unlawful non-citizen as soon as reasonably practicable, in accordance with subsection 198(2) of the Act."
The statement made in the above letter "... your visa should be cancelled" was of course erroneous, and doubtless was intended to read "... the cancellation of your visa should not be revoked."
76 On the same day (6 March 2001), Paul Wyllie on behalf of DIMA wrote again to Nicolae, again apparently by fax, as follows:
"This is to advise you that you have been booked to depart aboard KL 844 on Wednesday the 7th of March 2001. The flight is due to depart at 1725 hours from Sydney Airport. Your final ticketing destination is Romania. You will be escorted from your current location to the airport approximately two hours prior to departure."
Applications for Review
77 There is contained in the Court's file relating to Oleg an initial handwritten Application for Order for Review issued on 8 November 2000, which contained no grounds for review. No such Application was filed on behalf of Nicolae. An Amended Application for Order for Review was then filed by Oleg on 18 November 2000, the grounds for review being stated therein to be ss 476(1)(b) and 476(1)(d) of the Act. The Respondent thereupon filed an application on 13 December 2000 to strike out Oleg's Amended Application for Review, and the proceedings came on for hearing before Branson J, when the Minister elected not to proceed with his strike-out application, and when Oleg contended that the Court had no jurisdiction, because the Minister's decision complained of was supposedly a MRT-reviewable decision. The judgment of Branson J delivered on 26 February 2001 was to the effect that the subject decision of the Respondent was not an MRT-reviewable decision, but a judicially-reviewable decision within the meaning of that expression used in s 475 of the Act. The review of a judicially reviewable decision by the Federal Court is limited in scope to the grounds set out in s 476 of the Act. Her Honour observed in the course of her judgment that the hearing and determination of Oleg's application had been delayed for a regrettably long time because of his efforts to obtain legal assistance, and that such occasion was the first time when Oleg had been legally represented.
78 Then at the beginning of March 2001, the Minister served upon Nicolae a notice of cancellation of his visa by the means and in the circumstances described in [72-73] above. This extraordinary course, set in train after Nicolae had been in detention for nearly five months, provoked an application by Nicolae for an order nisi in the High Court pursuant to s 75(v) of the Constitution, but after a preliminary hearing before Gummow J on 22 March 2001, it would seem that the Applicants decided to pursue relief in the Federal Court. His Honour implicitly indicated, from my reading of the transcript, that whatever the outcome, the High Court would not be able to grant relief by way of a renewed tourist visa.
79 On 27 March 2001, an Application for an Order for Review of the decision of 6 March 2001 (see [75] above) was filed on behalf of Nicolae in this Court. The basis for Nicolae being aggrieved was stated as follows:
"1. The officer who purported not to revoke the cancellation of the visa did not have reasonable grounds on which to base that decision. On the contrary, the officer had reasonable grounds on which to revoke the cancellation and ignored those grounds or did not given them proper attention."
The grounds for the Application thus filed were stated as follows:
"1. S.476(1)(b) of the Migration Act 1958
- the officer who purported to make the decision not to revoke the cancellation of the applicant's visa did not have jurisdiction to make the decision.
Particulars
The jurisdictional fact of the Minister's satisfaction under para 131(1(b) of the Migration Act was not lawfully satisfied.
2. S.476(1)(c) of the Migration Act 1958
- the decision not to revoke the cancellation of the applicant's visa was not authorised by the Migration Act 1958
Particulars
The jurisdictional fact of the Minister's satisfaction under para 131(1)(b) of the Migration Act was not lawfully satisfied.
3. S.476(1)(e) of the Migration Act 1958
- the decision not to revoke the cancellation of the applicant's visa involved an error of law being an incorrect application of the law to the facts as found by the person who made the decision
Particulars
The jurisdictional fact of the Minister's satisfaction under para 131(1)(b) of the Migration Act was not lawfully satisfied."
The claims for relief were stated in the Application as follows:
"1. An order quashing the decision of 6 March 2001.
2. An order that the Minister, either himself or through a delegate other than L Baxter, consider again whether to revoke the cancellation of the applicant's visa."
80 On 5 April 2001, a Third Amended Application for an Order for Review of the Minister's decision of 13 October 2000 (see [19] above) was filed on behalf of Oleg. The basis for Oleg being aggrieved was stated as follows:
"1. The officer who purported to cancel the visa did not have jurisdiction to cancel the visa.2. The decision was exercised in accordance with a policy without regard to the merits of the case."
The grounds stated in the Application were as follows:
"...
2. S.476(1)((b) of the Migration Act 1958 - the officer who purported to make the decision to cancel the applicant's visa did not have jurisdiction to make the decision.
Particulars
The officer was required to lawfully satisfy the jurisdictional fact of the Minister's satisfaction under ss.116(1)(g) of the Migration Act, and reg 2.43(1)(j).
3. S.476(1)(c) of the Migration Act 1958 - the decision to cancel the applicant's visa was not authorised by the Migration Act 1958.
Particulars
The officer was required to lawfully satisfy the jurisdictional fact of the Minister's satisfaction under ss.116(1)(g) of the Migration Act, and reg 2.43(1)(j).
4. S.476(1)(e) of the Migration Act 1958 - the decision to cancel the applicant's visa involved an error of law being an incorrect application of the law to the facts as found by the person who made the decision.
Particulars
The officer was required to lawfully satisfy the jurisdictional fact of the Minister's satisfaction under ss.116(1)(g) of the Migration Act and reg 2.43(1)(j).
5. S.476(1)(d) of the Migration Act 1958
- the decision to cancel the visa was an improper exercise of the power conferred by the Migration Act 1958 because it was exercised by Ms Baxter (per Ms Stapleton) in accordance with a policy without regard to the merits of the case."
...
7. S.476(1)(d) of the Migration Act 1958
- the decision to cancel the visa was an improper exercise of the power conferred by the Migration Act 1958 because it was an exercise of personal discretionary power by Ms Baxter at the direction or behest of another officer of the Department."
The orders sought by the Third Amended Application are as follows:
"1. An order quashing the decision of 13 October 2000.
2. Costs."
81 When the separate Applications for Order for Review propounded by Oleg and Nicolae came on for hearing before me, all parties agreed that the hearings thereof should take place together.
82 On 3 May 2001, subsequent to the close of addresses in the proceedings before me, the Applicants lodged with their written submissions to the Court an informal application for leave to file on behalf of Oleg a Fourth Amended Application for Review of the said decision of 13 October 2000. The Application asserted the same reasons for the Applicant being aggrieved as in the preceding Application, and also asserted the same grounds, except for the deletion of the previous grounds 6 and 7, and the addition of a new ground 8 reading as follows:
"8. S.476(1)(g) & 4(b) of the Migration Act 1958- there was no evidence or other material to justify the making of the decision; the person who made the decision based the decision on the existence of a particular fact and the fact did not exist."
In addition to the previous relief claimed, a declaration was sought in the following terms:
"2. A Declaration that Oleg is entitled to remain in Australia, as of the date of judgment in these proceedings, for 3 months less about six hours, pursuant to the 676 visa the subject of the decision of 13 October 2000."
Over the objection of the Respondent, I allowed the amendment, as I was unable to see how in substance and reality the Respondent would be prejudiced. No specific basis of prejudice was particularised to me by the Respondent of any convincing kind. I should say at once that I would not entertain the making of a declaration in or to the effect sought in this latest version of an Application for Order for Review, since plainly I have no authority to declare as done what only the Minister has the statutory authority to carry out. Moreover the "no evidence" ground for decision-making the subject of this Fourth Amended Application for Review had already been the subject of submissions made on behalf of Oleg before me, albeit referrable to a different sub-section of s 476(1).
Relevant or potentially relevant legal principles
83 In support of the various statutory bases for review which the Applicants' Counsel has propounded, reliance has been primarily founded upon dictum of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 654, where at [137] the following appears:
"... where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way."
Earlier at 650 [127], his Honour pointed out:
"The court or tribunal cannot give itself jurisdiction by erroneously deciding that the fact or event exists."
And subsequently at 656 [144], his Honour concluded:
"Where the issue whether a statutory power was enlivened turns upon the further question whether the requisite satisfaction of the decision-maker was arrived at reasonably... I would prefer the scrutiny of the written statement provided under s 430 by a criterion of `reasonableness review'. ... It would permit review in cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds."
In Eshetu, the Minister had appealed to the High Court against a decision of a Full Federal Court, and the refugee involved made a separate application for prohibition or mandamus pursuant to s 75(v) of the Constitution.
84 Subsequently on 21 May 2001, a Full Federal Court comprising Hill, Finkelstein and Stone JJ sitting in Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565 reviewed the issue as to the existence of any overlap between Wednesbury unreasonableness on the one hand and error of law on the other. Finkelstein J referred to the observations of Gummow J in Eshetu, and adopted the view that flawed logic was reviewable by the Federal Court as an error of law pursuant to s 476(1)(a), (b) and (c). Hill and Stone JJ expressed the view that it was difficult to see how the Refugee Review Tribunal could have reached the decision which it did on rational grounds, but that the lack of rationality in the Tribunal's decision did not provide a relevant ground of review not already excluded by s 476(2) (see at [16] per Hill J), and Stone J held to similar effect at [85-93].
85 Subsequently to Gamaethige however, the High Court has delivered judgment in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. The majority judgment of McHugh, Gummow and Hayne JJ, with which Gleeson CJ agreed, rejected the view that a failure of the Refugee Review Tribunal to make a finding on a question of fact meant that a procedure required by the Act to be observed in connection with the making of the decision has not been observed, and that accordingly judicial review was not available pursuant to s 476(1)(a), the reference to "findings" in s 430 meaning no more than findings which the Tribunal has actually made.
86 The joint judgment of McHugh Gummow and Hayne JJ then went further in its consideration of the scope of s 476(1). After illustrating the meaning of "jurisdictional error" by reference to a passage in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179, their Honours pointed out that jurisdictional errors embrace a number of different kinds of error which may well overlap in the circumstances of a particular case, such as for instance the Tribunal both asking the wrong question, and also ignoring relevant material or relying on irrelevant material, in each instance in a way that affects the exercise of power, with the consequence that the decision-maker exceeds the authority or powers given by the relevant statute. The joint judgment concluded its examination of the structure of ss 476(1), (2) and (3) in the following terms:
"83. No doubt full weight must be given to s 476(3) and the limitations which it prescribes in the construction of improper exercise of power in par (d) of s 476(1). Equally, however, it is important to recognise that these limitations, unlike those prescribed by s 476(2), are limitations on only one of the grounds specified in s 476(1). All this being so, there is no reason to give either par (b) or par (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it "exceeds its authority or powers". If that is so, the person who purported to make the decision "did not have jurisdiction" to make the decision he or she made, and the decision "was not authorised" by the Act.84. Moreover, in such a case, the decision may well, within the meaning of par (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That it cannot be said to be an improper exercise of power (as that expression is to be understood in s 476(1)(d), read in light of s 476(3)) is not to the point. No doubt it must be recognised that the ground stated in par (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the Tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals. That having been said, the addition of the qualification to par (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has make an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out.
85. Paragraphs (b), (c) and (e) would thus each be engaged in such a case and the Federal Court would have jurisdiction under Pt 8 of the Act to review the Tribunal's decision. This Court would also have original jurisdiction in the matter and could grant relief under s 75(v)."
Issues falling for determination
87 I make the preliminary observation that the Minister's notice of revocation of Nicolae's visa given on 13 October 2000 at Sydney Airport (see [15] above) was ineffective for non-compliance with s 129(1) and (2) of the Act (see [26] above), that is to say, because of the omission of the Minister to state the ground(s) for cancellation. Whilst the validity of the decision was not affected by the such defective notice by reason of s 129(3), the time for seeking Application for Review did not commence to run until compliance had been effected by the Minister with s 129(1) and (2), which compliance did not occur until the beginning of March 2001 in the circumstances set out in [72-73] above. I should add that to render s 128 compatible with s 129, the words "without notice" must mean "without prior notice". Why Nicolae for his part did not seek judicial review until 27 March 2001 (see [79] above) is unexplained. Perhaps the reason is to be attributed to the observation of Branson J, to which I referred in [78] above, that the proceedings before her on 26 February 2001 was the first occasion when legal representation for the Applicants in Court had taken place. I should add for completeness that Ms Van Zywert's subsequent notification to Nicolae in the evening of 13 October 2000, set out in [16] above, also specified no ground for the purported revocation of his tourist visa.
88 The critical issues remain to be determined as to whether, within the doctrines enunciated in Yusuf extracted in [86] above, DIMA's decision-maker here involved (Ms Baxter) identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material, such that the Minister exceeded his authority or powers and thereby did not have jurisdiction to make the decisions which were made in relation to the cancellation of Oleg's visa and the refusal to revoke the cancellation of Nicolae's visa, or that such decisions were not authorised by the Act or Regulations (ss 476(1)(b) or 476(1)(c)). Additionally or alternatively, within such doctrines so enunciated, the further issues arise as to whether Ms Baxter's said decisions involve the identification of wrong issues, or whether she asked herself the wrong questions, or ignored relevant material, or relied on irrelevant material in such a way as affected the exercise of the Minister's powers to an extent that reveals an error in her understanding of the applicable law, or whether she failed to apply that law correctly to the facts which she found (s 476(1)(e)).
Findings and resolution of the issues
89 Though of course the Applicants carry the onus of establishing the grounds for review contained in their respective Applications for Order for Review, the convenient course is to first address the way in which the Minister primarily puts his case. Counsel for the Minister framed in writing for the purposes of closing addresses the basis of or grounds for the Minister's Decision in relation to Oleg as follows:
"It is submitted that Ms Baxter was justifiably satisfied that Oleg Cujba never had or had ceased to have an intention to remain in Australia temporarily as a tourist. She formed this opinion because the background to his obtaining his visa was similar to others who had applied to visit Australia at about the same time and a number of these persons had overstayed their visas and sought protection visas. The fact that he paid for his visa (for which no charge is payable) and that he was sponsored by the head of the Moldovan National Olympic Committee were the matters which gave him a similar profile to the overstaying group. The fact he had insufficient funds was a further factor which indicated that he was not a tourist as he claimed and thus made it more likely that he was in a similar position to the overstaying group."
90 The decision-maker for the Minister summarised such grounds by the single description of absence of bona fides or not being a bona fide tourist (see [18] and [49]), having exemplified the same in the document given to Oleg at Sydney Airport on 13 October 2000 comprising Part A of the form of Notice of Cancellation of Visa as set out in [19] above. The statutory basis for such decision-making was s 116(1) of the Act and Regulation 2.43(1)(j) set out at [24-25] above, and the procedural requirements were as set out in s 129(1) and (2) of the Act set out in [26] above.
91 In the case of Nicolae, the statutory procedural requirements for the cancellation asserted to have been effected on 12 October 2000 were not complied with by the Minister, no grounds for cancellation having been notified to Nicolae at the time (see again [12] and [15] above), but as I have indicated in [87] above, the validity of the decision to cancel was not adversely affected by such absence of compliance with the statutory requirement as to notice. However such absence of giving notice of grounds of cancellation produced the consequence that the Minister's decision not to revoke such cancellation was procedurally ineffective until the Minister belatedly complied with s 129(1) and (2) on 4 March 2001 by the notices set out in [72-73] above.
92 As to the stated grounds for cancellation of Oleg's visa set out in Part A of the abovementioned Notice of Cancellation of Visa, which may be described as the Minister's perceived bases for the conclusion of absence of bona fides formed by the Minister's decision-maker Ms Baxter, the same may be seen to have been fourfold in the following division:
(i) "Fits profile of Moldavians (sic) applying for protection visas on arrival."
(ii) "Sponsored by Head of [Moldovan] National Olympic Committee."
(iii) "Insufficient funds."
(iv) "Paid US $300 for visa."
The internal reports of DIMA officers Ms Van Zywert and Ms Stapelton extracted at [21-22] above, and that of the decision-maker Ms Baxter extracted at [54] above, roll the foregoing grounds (i), (ii) and (iv) together as related matters, and that is how counsel for the Minister has framed his written submission in [89] above. It is therefore appropriate that I address the legal significance, for the purposes of Oleg's Application for Order of Review in its final exemplification (see [80-81] above), of such three subject matters together, each being matters which contributed to Ms Baxter's general conclusion of absence of "bona fides" (see [52] above), and then separately address the remaining ground as to insufficiency of funds. It is further appropriate that I undertake such course likewise and simultaneously in relation to Nicolae, since in substance the issues involving his Application for an Order for Review may be assumed to boil down to the same critical factors, notwithstanding the prima facie limited basis for the refusal to revoke the cancellation of his visa referred to in [73] above, being a purported basis which in any event overlooked the implications of MSI-259 (see [8] above). The internal DIMA reports extracted [21-22] and [54] demonstrated that the respective circumstances of Oleg and Nicolae were essentially and substantially of the same purported concern of DIMA, both in Moscow and Sydney.
93 Putting aside for the moment the ultimate significance or otherwise of my findings below upon such "bona fides" issues to the grounds for review set out in Oleg's Application for Order for Review in its final form, and of the principles potentially applicable thereto as enunciated by the majority in Yusuf extracted in [86] above, I have reached the preliminary conclusion that there was no reasonable or viable basis for any one or more of such grounds purportedly relied upon by the Minister's decision-maker Ms Baxter, both in relation to Oleg and Nicolae, for the reasons which will appear below.
94 The grounds set out in [92] above, save as to insufficiency of funds, may be summarised by the description of "guilt by association". But was there in truth any such association? Oleg (and of course Nicolae) retained the travel organiser Ambassador SA, said by DIMA to have been appointed by the President of the Moldovan National Olympic Committee (who has not been identified by name in any documentation or testimony in the proceedings), and they also retained the travel agent Eximtur of Cluj-Napoca Romania, apparently designated by Ambassador (see again the Van Zywert and Stapelton Reports at [21-22] respectively) to obtain their visas from the Australian Embassy in Moscow and to purchase their air tickets from KLM Airlines, that is to say, their tickets for the KLM flight Budapest-Amsterdam-Sydney and return. I interpolate to mention that evidence was given to the effect that neither Oleg or Nicolae had ever previously held passports, their prior travelling outside of Moldova having been confined to countries located with the eastern regions formerly comprised within the Soviet Union (see [43(v)] above).
95 At least most Moldovans who travelled to Sydney purportedly to attend the Olympic Games did so pursuant to arrangements made with same entities and in the same or similar ways as those implemented by Oleg and Nicolae, and most, if not all, of those person had obtained the support of National Olympics Committee. Ms Baxter's report states at [54]: "This provides a link between the applicants and the other Moldovan applicants". But why a link for a supposed common purpose of subverting Australian refugee protocols? Of the other Moldovan Nationals who had the same travel profile as Oleg and Nicolae, Ms Baxter reported (at [54] above) that "12 Moldovan nationals who had obtained 676 visas for the stated purpose of watching the Games" had lodged protection visas in September 2000, and that "OP consider (sic) above applicants may lodge [such] applications if landed". Moreover, as Ms Baxter's report at [54] above continued, as at 12 October 2000, DIMA staff had established the following:
"According to Moscow, as of 12 October, their checks indicated the following:6 arrived and departed;
44 arrived and had not departed;
2 were refused entry at Sydney Airport on bona fides checks (referring thereby presumably to Oleg and Nicolae)
20 had not yet travelled and all but one were cancelled on 11 and 12 October on the grounds that purpose for travel no longer existed (the `one' referring thereby presumably to Oleg)."
96 Any updating of such statistical information after 12 October 2000 was not adduced by DIMA into evidence before me, though presumably DIMA would have the same in its possession. In any event, such information as extracted in [95] obviously does not point merely one way in favour of a common intention on the part of all Moldovans who had utilised the Ambassador-Eximtur services, contrary to what appears to have been the conclusion reached by DIMA, since of those above 50 persons said to have arrived in Australia, 6 had already returned to Moldova by 12 October 2000, and of the 44 who had arrived from and after the period of time ended 12 October 2000, though 16 were said to have applied for protection visas, it was not apparently then known what were the circumstances relevantly of the remaining 28 as to expired or unexpired visas. Such statistical information therefore did not provide of itself, or without more, any unequivocal or logical basis for the cancellation of Oleg's visa (or declining the revocation of the cancellation of Nicolae's visa), since Oleg and Nicolae would have conceivably fallen into the same category as the 6 persons who had departed, for all that Ms Baxter as decision-maker was to know on the evening of 13 October 2000. The circumstance that DIMA did not adduce any up-dating of the above statistics from and after the period of time ended 12 October 2000 for the purposes of the present proceedings, must be inherently significant, at least to the extent that it may be readily inferred that any such up-dating would not have advanced DIMA's contentions in the present proceedings.
97 What then as to the bona fides of the other circumstances which attended Oleg and Nicolae, and to which DIMA has pointed in support of its defence of the Applications for Order for Review, that is to say, the circumstances propounded by DIMA additional to the Ambassador etc connection? Returning to the four matters set out in [92] above, the second matter "Sponsored by head of National Olympics Committee" forms part of the first, namely "Fits profile of Moldavians (sic) applying for protection visas on arrival", and therefore warrants no additional discussion. The fourth matter of "paid US $300 for visa" is largely connected to the first and second matters, Ms Baxter having testified to the fact that the making of payment for the issue of tourist visas was in her opinion usually indicative of a "racket" (see [53(i)] above), since Australian tourist visas are issued free of charge.
98 I find that this further ground for decision-making on the part of DIMA relating to the payment of US$300 is also without substance or a rational basis, for the reason partly that the sum so paid included the grant of US$30,000 travel/accident insurance cover, a factor which Ms Baxter as decision-maker had not seemingly understood (see the reference in her report extracted at [54] to "Paid agent US$300 for application and visa"). It is true that Ms Van Zywert had appreciated the existence of the travel insurance element (see [21] above), Oleg (and doubtless also Nicolae having produced his insurance cover for US $30,000 taken out with Compania de assignurare `Galas' SA (see [40] above) with the assistance of Ambassador. I should also refer to Ms Baxter's evidence at [53(ii)] above, where she conceded that her only benchmark for assessing the level of bone fide travel insurance premiums for accident cover etc were those charged in Australia. In any event, I am unable to identify any viable reason for the proposition that the making of payment by the residents of a foreign country, such as Moldova, for the organising of (inter alia) an Australian tourist visa, particularly in the case of the Applicants when the same apparently was to be issued by an Australian embassy located two travel days distance away from their places of professional practice and residence (see [36(ii)] above), could have constituted a factor bearing rationally upon the existence or otherwise of an intention to flout the conditions of issue thereof.
99 The remaining ground for revocation of Oleg's visa (and also apparently the refusal to revoke the cancellation of Nicolae's visa) was, as stated in the Notice to Oleg of 13 October 2000, "insufficient funds" (see again [19] above). It is common ground that each of Oleg and Nicolae brought to Australia US$800, being the equivalent of at least AUSD $1500. No evidence was adduced on behalf of DIMA as to what would in its view have constituted the minimum level of sufficiency of funds which would have been expected of a bona fide visitor to Australia for the period of five days or so between the time of arrival and the return date for which the Applicants each held return tickets.
100 Once again, I perceive no viable or rational basis to support this ground for refusal advanced by DIMA, whether alone or in combination of all or any of those just discussed, for at least the following reasons:
(i) As indicated in [27] above, DIMA accepted the authenticity of the documentation relating to each of the Applicants, and the genuine nature of their professional qualifications and practices, their family connections and their accommodation circumstances in Moldova, which I have summarised mainly in [1-4] above, and did not cross-examine in relation thereto; incidentally as indicated in [28] above, Nicolae asked Ms Van Zywert to telephone his parents, if she did not accept that he could not readily obtain promptly more cash if needed, but she did not respond to such prompting (see [28] above).
(ii) What flowed from DIMA's acceptance of the absence of dispute of the authenticity of such official Moldovan documentary material relating to both Oleg and Nicolae were the propositions first, that each of the Applicants owned his own home in Moldova and secondly, that each of the Applicants were engaged in the pursuit of professional careers in Moldova (Oleg as a practising dentist and Nicolae as a practising lawyer); and further that such two factors were to be viewed in the light of Oleg's family ties as a husband and father of two children, and of Nicolae's family ties to his father's professional practice and his emotional ties to his fiance. Ms Baxter conceded the positive nature of such factors in favour of the Applicants as tending to gainsay for instance the likelihood of any purpose or intention of obtaining employment in Australia (see [53(vi), (vii) and (viii) above) on the part of Oleg and Nicolae respectively, that is to say, the factor so prevalent in the case of protection visa applicants.
(iii) Whilst the Applicant had not pre-booked accommodation in Sydney for their scheduled five day visit, their intention was to use cheap hotel accommodation, and Ms Baxter conceded the availability of such accommodation in Sydney (see [53(v)] above).
(iv) Alternatively, the Applicants would obtain accommodation with friends of Nicolae's parents, whose names and addresses were identified in a handwritten address book; in this regard however these was an issue between the parties as to whether the address book was shown to Ms Zywert, and I will accordingly put this alternative piece of evidence aside.
101 It follows in my judgment above that none of the grounds propounded by the Minister for the revocation of Oleg's visa and for the refusal to revoke the cancellation of Nicolae's visa were viable or sustainable. Whether that finding has consequences in favour of the Applicants pursuant to one or more of the grounds for review relied upon, namely ss 476(1)(b), 476(1)(c), 476(1)(d) and 476(1)(e), and/or 476(1)(g) and 476(4)(b), involves further considerations to be determined essentially in the light of the High Court's decision in Yusuf, which I will later address. I record at this convenient point of the judgment that if it were to be the outcome of the proceedings that the circumstances I have found to be established did not fulfil the requirements of any one or more of such statutory provisions, such as to have achieved an outcome in favour of the Respondent, I would have adopted the alternative course of making no order for the costs of the proceedings. In other words, if my reasoning has constituted in truth no more than an exercise in merits review, I would not have awarded the Minister his legal costs of the proceedings, such being at least the overwhelming preponderance of the merits in favour of the Applicants.
102 I propose to add certain supplementary findings upon other aspects of the contentious materials placed before me, in the light of the breadth of the issues that increasingly entered this litigious dispute as the hearing of the proceedings progressed. Each of the Applicants presented to me as educated and professionally qualified people who had been subjected to a bewildering experience in a strange country, being an experience with which they still could not come to terms. Particularly given their professional status in their own community, it was of course a bitter experience to be sent in handcuffs to a detention centre after they had travelled a very long distance at not inconsiderable expense for a relatively short holiday, albeit otherwise than in pursuance of their original and apparently longer travelling plans. They presented to Ms Baxter as "nice people", to coin Ms Baxter's description at [49] above, and my limited exposure to them in the Court room reflected the accuracy of that description. I had an initial reservation in relation to one aspect of Nicolae's credibility, namely his account as to the circumstances in which the handwriting of Nicolae as to prospective tourist sites in Sydney referred to in [31] came into existence, but my ultimate conclusion is that such initial reservation should be discarded. Nevertheless, during the time when both Oleg and Nicolae were giving their respective testimonies in the witness box, Oleg entirely with the assistance of an interpreter, and Nicolae partially so, I continually asked myself why these men did not promptly depart from Australia on 16 October 2000 after three days' detention in accordance with DIMA's imposed travel arrangements, in the light of their oppressive experiences of the preceding days (see [62-63] above), and why they have since chosen to remain at the Centre for such a relatively long period of time to pursue this litigation, when the end result will inevitably involve their journey back to Moldova, irrespective of the outcome.
103 Sufficient answers to such initial dilemma on my part emerged by the end of the hearing. One reason which emerged in the documentary evidence was their concern that without a sufficient victory in this litigation, they will have hurdles to overcome in acquiring in the future a visa to enter any other country, particularly the United States. A further reason is their determination to secure a victory over what they identify as a gross injustice inflicted upon them in the process of a humiliating rejection of the integrity of their assurances given to DIMA officers, notwithstanding that they had established their qualifications as professional men engaged appropriately in professional practice, as owners of residential property in the localities where they practice their professions, and as persons enjoying traditional family connections (see generally [45], [65] and [68] above). It emerged in the course of the hearing that to assist the Applicants in what they plainly perceived to be bureaucratic injustice, their respective families have apparently assisted them financially during their now lengthy period of confinement, in the case of Oleg from his presently working wife and in the case of Nicolae from his father. A yet further reason would seem to be the possibility of the Applicants bringing proceedings for false detention (see [68] above).
104 I regret to say that I am unable to be as correspondingly complimentary to the DIMA officers Ms Baxter and Ms Van Zywert. Whilst I would not find that they have sought consciously to mislead the Court in the provision of their respective testimonies, I consider that they have been more than appropriately objective in the defence of their decisions made under the pressure of what was a busy evening, particularly for Ms Baxter (see [48] above). I was not convinced by Ms Baxter's contradiction (at [53] above) of the thrust of Ms Van Zywert's file note to the effect that the decision-making of the evening of 13 October 2000 in favour of the Minister was "touch and go" (see [17] above). Moreover it is a cause for concern in terms of the reliability of the internal DIMA documentation that Ms Baxter caused to be shredded her contemporaneous notes of the critical evening's conversations etc upon completing her undated written report reproduced at [54], as did Ms Van Zywert (see [56] above). I would have thought that in reasonable anticipation of possible legal or departmental challenge, the handwritten notes would have been retained, if there was confidence that the same had been accurately reproduced in such written versions. I am also somewhat concerned as to the level of Ms Zywert's frankness in responding for instance to the questioning extracted at [59] above. In any event, in the compilation of their respective reports the final form as produced at the hearing, it is apparent that both women overlooked or ignored the implications of MSI - 259, as to which see again [8] above.
105 The critical issue remains as to whether the findings I have made in [93] and [98] above as to the absence of viable and reasonable grounds to support the subject decisions relating respectively to Oleg and Nicolae attract any one or more of the grounds for review propounded by the Applicants. I have concluded that the significance of such findings is of such radical implications in terms of absence of any reasonable or viable evidentiary basis, or to adopt the dictum of Gummow J in Eshetu extracted in [83] above, such findings are so lacking in support by some probative or logical grounds, as to constitute for the purposes of s 476(1)(b) jurisdictional error within the principles enunciated in Yusuf in paragraph [83] thereof (extracted in [86] above), in that such findings ignored the relevant material and relied on the irrelevant material exposed in my discussion and observations made from [93-98] above. It is open to contention that additionally or alternatively, my said factual findings and conclusions may attract the application of s 476(1)(e) within the principles enunciated in Yusuf in paragraph [84] thereof, or of s 476(1)(g) of the Act read in combination with s 476(4), but it is unnecessary for me to reach any conclusion in either regard.
106 I will therefore order that the decisions of the Minister made on 13 October 2000 to cancel Oleg's 676 visa and on 4 March 2001 to decline to revoke the cancellation of Nicolae's 676 visa be quashed and set aside. I decline to make the declaration sought in favour of Oleg as set out in the Fourth Amended Statement of Claim and the order sought against the Minister or his delegate to consider again whether to revoke the cancellation of Nicolae's 676 visa, since in both cases I am of the view that I have no jurisdiction so to do.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. |
Associate:
Dated: 13 June 2001
Counsel for the Applicant: |
Mr R Killalea |
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Solicitor for the Applicant: |
Low & Associates |
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Counsel for the Respondent: |
Mr R Beech-Jones & Mr D Godwin |
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Solicitor for the Respondent: |
Sparke Helmore |
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Date of Hearing: |
4-6 April, 11-12 April 2001 |
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Date of Judgment: |
8 June 2001 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2001/699.html