VKAW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 25 (24 January 2003)

Last Updated: 28 January 2003

FEDERAL COURT OF AUSTRALIA

VKAW v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 25

MIGRATION - cancellation of bridging visa - criteria relevant to determine cancellation - false documents - incorrect information - operation of privative clause.

Migration Act 1958 (Cth): Pt 8 s 101, 103, 109

Judiciary Act 1903 (Cth): s 39B

Migration Regulations: reg 2.41

APPLICANT VKAW OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 829 of 2002

GOLDBERG J

24 JANUARY 2003

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 829 of 2002

BETWEEN:	APPLICANT VKAW OF 2002 Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	24 JANUARY 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of and incidental to the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 829 of 2002

BETWEEN:	APPLICANT VKAW OF 2002 Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGE:	GOLDBERG J
DATE:	24 JANUARY 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1 The applicant is a citizen of Vietnam who arrived in Australia on 3 March 1998 holding a Student (Temporary) (Class TU) Visa, Subclass 560 which expired on 23 March 1999. On 23 March 1999 the applicant applied for a further Subclass 560 student visa and was granted a Bridging A (Class WA-010) Visa on the basis of that application. On 11 October 2002 the applicant's bridging visa was cancelled and on 14 October 2002 a decision was made to refuse the grant of a student visa. The applicant lodged an application with the Migration Review Tribunal ("the Tribunal") on 15 October 2002 to review the decision relating to the cancellation of the bridging visa and, after a hearing on 23 October 2002, the Tribunal, on 30 October 2002, affirmed the decision of the delegate of the respondent ("the Minister") that the Bridging A (Class WA-010) Visa held by the applicant be cancelled. On 26 November 2002 the applicant filed an application for an order of review of the decision of the respondent cancelling her bridging visa.

2 In her application for an order of review the applicant set out as the grounds of the application:

"I want to stay in Australia to have my baby because I cannot contact my family before the birth."

Background

3 The background to the applicant's application is as follows. After the applicant arrived in Australia she enrolled in an English language course at Kent College in Sydney and attended 98% of her classes between 9 March and 31 July 1998. On 15 October 1998 Kent College notified the Department of Immigration and Multicultural Affairs ("the Department") that the applicant did not recommence her course after the semester break.

4 When the applicant lodged her application for a Subclass 560 student visa on 23 March 1999, the day of expiry of her initial visa, she enclosed a certificate of attendance from the NSW English College stating that she had attended 90% of classes between 14 September 1998 and 12 February 1999 in a course at that College and that her attendance was satisfactory. She also enclosed a statutory declaration form from another person stating that that person was acting as a guardian and was financially supporting the applicant from funds provided by her parents. The applicant was notified by the Department that there were a number of other documents required before the application for the visa could be determined. However, that determination was overtaken by subsequent events.

5 In early October 2002 the applicant was taken into custody by the police for alleged shoplifting. The applicant gave a number of different names to the police officers and to the Department and told them that she had only arrived in Melbourne three days before being detained by the police. An interview was conducted with a Departmental officer on 8 October 2002 when the applicant gave her true identity and a description of her history in Australia.

6 The applicant told the Departmental officer on 8 October 2002 that the statements in the document accompanying her application for the visa (that the other person was financially supporting the applicant and was her guardian) were not true. The applicant said that she had not applied for a course at Skywell College. She said that she was around four months pregnant and wished to remain in detention until she gave birth, as she could not return to Vietnam pregnant, because her parents would not accept her.

7 On 11 October 2002 the applicant's Bridging A visa was cancelled on the basis of incorrect information supplied in relation to her application for a student visa and her application for an associated bridging visa. The Tribunal held a hearing on 23 October 2002 during which the applicant admitted that she had not studied in Australia since July 1998.

Reasoning of the Tribunal

8 The Tribunal noted that the applicant's bridging visa had been cancelled pursuant to s 109 of the Migration Act 1958 (Cth) ("the Act") on the basis that she had not complied with s 101 and s 103 of the Act by providing incorrect information and bogus documents in relation to her studies and other matters. Section 109 empowers the Minister to cancel a visa where he decides that the holder of the visa has not complied with certain provisions in the Act. Section 101 provides that a visa applicant must not give incorrect answers to questions in the visa application. Section 103 provides, inter alia, that a non-citizen must not give an officer or the Minister a bogus document, that is a document which purports to have been, but was not issued, in respect of the person or a document which is counterfeit. The Tribunal considered whether non-compliance with s 101 and s 103 of the Act in connection with the applicant's application for a student visa were also grounds for cancellation of the associated Bridging A Visa.

9 The Tribunal noted that the applicant had applied for a student visa and was granted a bridging visa that remained valid for the period of the processing of her application for a student visa. If that application was approved the bridging visa would lapse on the grant of a student visa but if it was refused the bridging visa would run for a further 28 days after deemed notification of the refusal of the student visa. The Tribunal took the view that the form used by the applicant to apply for a student visa constituted an application for a Bridging A Visa. The Tribunal noted that in response to one of the questions on that form the applicant supplied a statutory declaration and other material from a person who said she was her guardian, which the applicant admitted was not correct, and she also supplied a bogus attendance record from the NSW English College.

10 The Tribunal therefore found that the applicant had presented incorrect information and bogus documents to the Department in relation to her application for a Bridging A Visa, which constituted grounds for cancellation of that visa. The Tribunal then noted that s 109 of the Act required that the criteria set out in reg 2.41 of the Migration Regulations be considered. Regulation 2.41 provides:

"For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:

(a) the correct information;

(b) the content of the genuine document (if any);

(c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;

(d) the circumstances in which the non-compliance occurred;

(e) the present circumstances of the visa holder;

(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

(g) any other instances of non-compliance by the visa holder known to the Minister;

(h) the time that has elapsed since the non-compliance;

(j) any breaches of the law since the non-compliance and the seriousness of those breaches;

(k) any contribution made by the holder to the community.

Note: Under s.109 of the Act, the Minister may cancel a visa if there was non-compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa."

11 The Tribunal then reasoned:

"29. In considering the above criteria, the Tribunal notes the following. The review applicant supplied incorrect information about her studies during the period of her previous student visa in providing a bogus statement of attendance at NSW English College and about her financial status. There was no genuine document available as the information in the documents was false. Had the delegate known that the information was incorrect at time of lodgement, she/he would not have granted the student visa nor would the associated bridging visa have been granted. The non-compliance occurred in circumstances where the review applicant had not complied with study requirements on her previous visa and wished to stay longer in Australia. The present circumstances of the review applicant are that she has not studied since mid 1998. She is approximately six months pregnant without the support of a partner or any income. She has indicated that she would like to remain in Australia, in detention if necessary, until she has the baby. After initially giving the Department incorrect information about her identity, the review applicant has now provided candid responses to questions from the Department about her student and associated bridging visa application. It has now been more than 3 years since the bridging visa application was made. The review applicant has acknowledged that she thought that her application for the student visa was refused and that she no longer held a valid visa. The review applicant was taken into custody as a result of alleged shoplifting and has admitted to a Department officer that she took a comb. Apart from donations of clothing to charity, the review applicant was unable to provide any other examples of contributions to the community.

30. Weighing up the nature of the breach as against the review applicant's circumstances, the Tribunal is satisfied that it is appropriate for the Bridging A visa to be cancelled."

The review

12 The applicant's grounds of review do not set out any grounds which entitle the applicant to an order of review in accordance with Pt 8 of the Act or to relief pursuant to s 39B of the Judiciary Act 1903 (Cth). Nevertheless, I have considered the material placed before the Court to determine whether it is possible to discern any grounds of review or errors in reasoning or procedure, which might be open to the applicant in accordance either with Pt 8 of the Act or s 39B of the Judiciary Act. I have not been able to do so. In my opinion, the Tribunal's reasoning does not disclose any error of law or failure to comply with proper procedure or process.

13 In any event, the decision of the Tribunal is a "privative clause decision" for the purposes of s 474 of the Act. That provision was the subject of extensive consideration by the Full Court of the Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. Although the five members of the Court delivered separate judgments, they were in agreement that s 474(1) is to be interpreted in accordance with the principles set out by Dixon J in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 at 616. Those principles establish that a decision to which a privative clause, such as s 474, applies cannot be the subject of review or consideration other than in the limited circumstances where:

* the decision-maker did not make a bona fide attempt to exercise the power committed to the decision-maker;

* the decision did not relate to the subject-matter of the relevant legislation;

* the decision was not reasonably capable of reference to the power given to the decision-maker.

14 The applicant has not identified or raised any grounds which might give rise to any of the three circumstances considered by Dixon J in Hickman. Further, I am satisfied that the reasoning of the Tribunal is such that none of the circumstances considered by Dixon J in Hickman arise in the present circumstances.

15 In substance the applicant seeks to have the matter and issues that were before the Tribunal reconsidered on their merits. Such an approach is not open under the Act. The applicant may be said to be presently in difficult personal circumstances but those matters of themselves are insufficient to give rise to any ground for review of the decision of the Tribunal. The application will be dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated: 24 January 2003

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	C G Fairfield
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	24 January 2003
Date of Judgment:	24 January 2003