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Federal Court of Australia |
Last Updated: 13 December 2006
FEDERAL COURT OF AUSTRALIA
Nguyen v Minister for Immigration and Multicultural Affairs [2006] FCA 1699
MIGRATION – judicial review –
cancellation of visa pursuant to s 109 of the Migration Act 1958 (Cth)
– whether information given by the appellant was an ‘answer to a
question’ – relevance of other acts
of
non-compliance
Migration Act 1958
(Cth) ss 99, 101, 104, 109
Migration Regulations 1994 (Cth) reg
2.41
ANH
TUAN NGUYEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND MIGRATION
REVIEW TRIBUNAL
VID 552 OF 2006
MIDDLETON J
12
DECEMBER 2006
MELBOURNE
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AND:
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THE COURT ORDERS THAT:
1. The appeal be dismissed with costs.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court
Rules.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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ANH TUAN NGUYEN
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent |
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JUDGE:
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MIDDLETON J
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DATE:
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12 DECEMBER 2006
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PLACE:
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MELBOURNE
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REASONS FOR JUDGMENT
1 This is an appeal from a decision of Federal Magistrate Riethmuller of 10 May 2006 dismissing an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 19 May 2005. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs of 28 July 2004 to cancel the appellant’s visa for breaches of s 101 and s 104 of the Migration Act 1958 (Cth) (‘the Act’).
FACTUAL BACKGROUND
2 The appellant is a citizen of Vietnam. He first entered Australia on 7 November 1995 as the holder of a Student (Temporary) visa class (Class TU) visa, sub-class 560 (student). He was subsequently granted further sub-class 560 visas through to 1998. On 17 June 2001, the appellant married an Australian citizen, Sara Masotti, and on 5 July 2001, the appellant applied for a Partner (Temporary) visa class (Class UK) visa, sub-class 820 (Spouse) (‘temporary visa’) which was subsequently granted on 13 September 2001. On 20 August 2003, the appellant was granted a Partner (Residence) visa class (Class BS) visa, sub-class 801 (Spouse) (‘permanent visa’).
3 In the appellant’s visa application dated 4 July 2001 there was a line ruled through the part of question 37 which asked him to give the names and other details of all of his children. At the time the application was completed, the appellant did not have any children. In addition, he filed with his visa application a curriculum vitae in which he claimed that he had graduated from Swinburne University of Technology (‘Swinburne’) with a Bachelor of Business. The appellant reiterated his claim to have graduated with a degree from Swinburne in the documents lodged in support of his permanent visa in August 2003, shortly before the permanent visa was granted.
4 However, there was a change in the appellant’s circumstances in that he later had a child by a woman, Thi Thanh Huong Hoang, who was not the nominating spouse in the visa application. Ms Hoang, the mother of the appellant’s daughter, had been a friend of the appellant before his marriage to Ms Masotti. Ms Hoang moved into the house with the appellant and Ms Masotti after their wedding. Ms Masotti worked nightshift and the appellant states that as he was lonely, he and Ms Hoang were intimate on a couple of occasions but did not enter into a serious committed relationship. As a consequence Ms Hoang became pregnant with the child. The child was born on 7 January 2003 but the appellant did not advise the Department of the change in circumstances at this time, despite being made aware of the child shortly before the child was born.
5 On 18 August 2003, some seven months after the birth of the child, but before the grant of the appellant’s permanent visa, and for the purposes of the grant of that visa, the appellant lodged with the Department various supporting documents. Those documents included a statutory declaration sworn by the appellant on 11 August 2003 together with a document headed ‘Documentation Guide’. In neither of these documents did the appellant disclose the birth of his daughter on 7 January 2003. The appellant claims that he told his wife in October 2003 that he was the father of the child. The appellant and his wife separated permanently in December 2003.
6 A notice of intention to consider cancellation of the visa was sent by the Department to the appellant on 27 May 2004 primarily concerning the incorrect statements about the appellant’s daughter. The appellant, by his migration agent, responded to the notice of intention to cancel the visa on 16 June 2004.
7 On 29 June 2004, the Department sent another notice of intention to consider cancellation of the visa to the appellant concerning the incorrect statements about Swinburne. This notice explained that further information had come to the Department’s attention indicating the appellant had not in fact obtained a Bachelor of Business from Swinburne. Instead he had applied for leave of absence but was subsequently excluded from the course on 16 July 1999 for two academic years, which was extended by Swinburne on 20 December 2000 for another two academic years. In the letter dated 16 June 2004 from the appellant’s migration agent in response to the first notice of intention to cancel the visa, the appellant maintained that he had ‘pursued various academic courses from which he has graduated’.
8 On 28 July 2004 the delegate proceeded to cancel the appellant’s visa and on 30 July 2004, the appellant applied to the Tribunal for review of the delegate’s decision.
THE TRIBUNAL’S DECISION
9 The Tribunal affirmed the delegate’s decision to cancel the appellant’s visa by decision dated 19 May 2005. In its decision, the Tribunal recounted all the relevant facts and circumstances and noted that there was no factual dispute about the significant events.
10 The Tribunal found that the appellant failed to declare to the Department that he had not been in an exclusive relationship with his wife and his affair with Ms Hoang had resulted in the birth of his daughter. Additionally, it found that in support of his visa application he submitted a Documentation Guide on which he failed to disclose the birth of his daughter. The Tribunal having found that the appellant had not complied with s 101 and s 104 of the Act in the manner specified, identified that cancellation in this case was not mandatory but discretionary. It then proceeded to consider the exercise of the discretion to cancel the appellant’s visa in accordance with reg 2.41 of the Migration Regulations 1994 (Cth) (‘the Regulations’).
11 In considering the circumstances prescribed under reg 2.41, the Tribunal found that the appellant’s extra-marital relationship was likely to have impacted on the outcome of his visa application. The Tribunal also found that there was evidence of previous non-compliance by the appellant in his failure to report to the Department when he deferred his studies at Swinburne and his subsequent exclusion from the course.
12 The Tribunal noted that in its consideration of whether to cancel the appellant’s visa, it had regard to the appellant’s false claims that he had a degree from Swinburne and his deception in hiding his extramarital child from his wife and from the Department. It also considered significant that the appellant and his wife had separated. The Tribunal concluded that the grounds for cancellation of the review were made out and affirmed the decision of the delegate.
THE FEDERAL MAGISTRATE’S DECISION
13 By amended application, the appellant appealed from the Tribunal’s decision to the Federal Magistrates Court. The appellant’s case before Riethmuller FM was that the Tribunal did not have jurisdiction to make the decision because it involved jurisdictional errors.
14 The appellant alleged error in the Tribunal’s hearing process by not conducting a de novo review and instead conducting the process as if an appeal or judicial review. However Riethmuller FM found that due to the appellant not disputing that he had separated from his spouse, that he had fathered a child, and that he did not have a degree from Swinburne, there was no call upon the Tribunal to make detailed findings about these issues and instead the Tribunal correctly reviewed the facts and circumstances and exercised afresh the relevant discretion.
15 In relation to the appellant’s contention that the Tribunal had erred in finding that the appellant and his wife were not in a spousal relationship for the purposes of reg 1.15A(1A), Riethmuller FM held that the Tribunal had only to consider the likely effect of the non-compliance on the outcome of the visa application. The Tribunal had done this and concluded it was likely to have impacted upon the visa application and the appellant had now separated from his wife.
16 The appellant also alleged that the Tribunal had not considered each false statement made by the appellant separately and instead addressed the matter as a whole. Federal Magistrate Riethmuller found that once the Tribunal identified more than one ground of cancellation, it was not appropriate that each statement be considered separately when exercising its discretion in accordance with reg 2.41. His Honour held that ‘it would create a wholly artificial assessment and exercise of the discretion if these matters were to be balanced against the individual non-disclosures without the Tribunal being able to consider the matter as a whole’.
17 The appellant also claimed that the Tribunal should only consider the nature of the relationship up until the time of the grant of the permanent visa. The marriage did not break down until after the visa was granted due to the appellant’s spouse gaining knowledge of the affair and the child after the visa was granted. His Honour found that the Tribunal was not obliged to ignore the undisclosed information in exercising the discretion under reg 2.41, by limiting its inquiry to the time of grant of the visa. His Honour found that the whole purpose of the provisions would be defeated if the Tribunal were obliged to ignore the undisclosed information in exercising the discretion. The very purpose of reg 2.41(c) is to consider the likely effect of the information on the decision.
GROUNDS OF APPEAL
18 By notice of appeal filed 19 May 2006, the appellant appeals from the decision of Riethmuller FM.
19 The appellant relies on the following two grounds of appeal from his notice of appeal:
1. The Learned Federal Magistrate erred in law in failing to find [26] that the Appellant was at all material times and in particular on 20 August 2003 a spouse as that term is defined for the purposes of the Migration (1994) Regulations in reg 1.15A(1) and 1.15A(1A).
2. The Learned Federal Magistrate erred in holding at [37] that question 37 in the Form 47SP completed by the Appellant on 4 July 2001 constituted a "question" for the purposes of s 101(a) of the Migration Act 1958 (Cth).
20 The appellant sought leave to rely on a third ground of appeal as set out in his submissions:
3. That the learned Federal Magistrate erred in law in failing to hold the [Tribunal] had made a jurisdictional error by failing to find what acts or omissions of the appellant was the non-compliance relied on for either or both of ss 101 or 104 of the Migration Act.
THE LEGISLATIVE FRAMEWORK
21 The relevant sections of the Act are as follows:
98 Completion of visa application
A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99 Information is answer
Any information that a non-citizen gives, causes to be given or that is given on his or her behalf to the Minister, an officer or a person or Tribunal reviewing a decision under this Act in relation to the non-citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen’s application form, whether the information is given orally or in writing and whether at an interview or otherwise.
100 Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave the answer or caused the answer to be given did not know that it was incorrect.
101 Visa applications to be correct
A non-citizen must fill in his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given.
104 Changes in circumstances to be notified
(1) If circumstances change so that an answer to a question on a non-citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2) If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3) If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4) Subsection (1) applies despite the grant of any visa.
105 Particulars of incorrect answers to be given
(1) If a non-citizen becomes aware that:
(a) an answer given in his or her application form; or
(b) an answer given in his or her passenger card; or
(c) information given by him or her under section 104 about the form or card; or
(d) a response given by him or her under section 107;
was incorrect when it was given, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2) Subsection (1) applies despite the grant of any visa.
106 Obligations to give information is not affected by other sources of information
The requirement for a non-citizen to comply with sections 101, 102, 103, 104 and 105, is not removed or otherwise affected by the fact that the Minister or an officer had, or had access to:
(a) any information given by the non-citizen for purposes unrelated to the non-citizen’s visa application; or
(b) any other information.
107 Notice of incorrect applications
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non-compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non-compliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance--shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non-compliance:
(A) give reasons for the non-compliance; and
(B) shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response--when that notice is given; or
(ii) if the holder gives the Minister a written response within that period--when the response is given; or
(iii) otherwise--at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i) to tell the Minister the address at which the holder is living; and
(ii) if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non-compliance by the holder--to tell the Minister the changed address.
(1A) The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa--the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise--14 days.
(1B) Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a particular place); or
(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
107A Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa
The possible non-compliances that:
(a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(b) if so specified, can constitute a ground for the cancellation of that visa under section 109;
include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.
108 Decision about non-compliance
The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non-compliance by the visa holder in the way described in the notice.
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
111 Cancellation provisions apply whether or not non-compliance deliberate
To avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent.
22 Pursuant to s 109(2) of the Act, there were no relevant prescribed circumstances under which the appellant’s visa must have been cancelled. The decision to cancel was therefore discretionary: s 109(1). Regulation 2.41 of the Regulations prescribes the circumstances to which a decision-maker must have regard in deciding whether to cancel a visa: s 109(1)(c). It provides:
2.41 Whether to cancel visa -- incorrect information or bogus document (Act, s 109(1)(c))
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.
Ground 1 – whether the appellant was a spouse
23 The first ground alleged by the appellant is that the Federal Magistrate should have found that the appellant was the spouse of the nominating spouse at all relevant times, and particularly at 20 August 2003, being the date the appellant was granted his permanent visa.
24 In my view neither the Tribunal nor the Federal Magistrate were required to make a finding in the terms suggested. The questions for the Tribunal in the present case were whether the appellant had given correct information to the Department, whether he had failed to notify the Department of changes of circumstances and whether any failures in that regard warranted the appellant’s visa being cancelled.
25 The appellant submitted that the Tribunal concluded that the reference in the definition of spouse in sub-reg 1.15A(1A)(b)(i) to the Minister being satisfied that the parties to a marriage had a commitment to a shared life as husband and wife ‘to the exclusion of all others’ had the consequence that the Minister ‘could never be so satisfied when infidelity was established’.
26 The Tribunal did not make that specific conclusion. It said that the correct information was likely to have impacted on the outcome of his permanent visa application. The significance of the statement by the Tribunal is that the appellant’s failure to give correct information to the Department may have enabled him to obtain a permanent spouse visa, to which he was not entitled.
27 The Tribunal had to consider, in deciding whether or not to cancel the appellant’s visa, ‘the likely effect on a decision to grant a visa...of the correct information: sub-reg 2.41(c) of the Regulations. In the present case, once the correct information became known, that is, once the appellant’s wife discovered that the appellant had had an extra-marital child, the marriage ended. However, this may not be directly to the point. If the correct information had been given to the Department about the birth of the appellant’s extra-marital child, even if the appellant and his wife had not separated, it is likely that the delegate would have investigated whether the appellant’s infidelity, and the circumstances surrounding it, meant that he did not have a genuine commitment to the marriage. At the time of the cancellation, the Department had some evidence suggesting that the relationship may not have been genuine. Upon proper investigation, the delegate may have concluded that the appellant did not have a genuine commitment to a shared life as husband and wife to the exclusion of all others with his wife and the appellant’s permanent visa may have been refused. Accordingly, I would not uphold this ground of appeal.
Ground 2 – whether question 37 constituted a ‘question’ for the purposes of par 101(a) of the Act
28 The second ground contended for by the appellant is that the Federal Magistrate should have found that question 37 in the visa application form, which required the appellant to give details of ‘All your children’, was not a ‘question’ for the purposes of par 101(a) of the Act.
29 I agree with the finding of Riethmuller FM that the word ‘question’ has a broad meaning and includes not only a simple interrogative statement but also a sentence worded or expressed in a form such as to elicit information from a person. In so finding, reliance was placed on the New Shorter Oxford English Dictionary (Clarendon Press, Oxford: 1993). His Honour, in my view correctly, concluded that question 37 was a question within the meaning of ss 101 and 104.
30 Further, the real matter in contention is whether an incorrect answer was given for the purposes of para 101(b) of the Act. So, whether there was a ‘question’ for this purpose, the matter is placed beyond doubt by the effect of s 99. Section 99 of the Act operates so that information given by an applicant is taken to be an answer to a question. That section so far as is relevant, provides that:
Any information that a non-citizen gives...to the Minister...is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen’s application form, whether the information is given orally or in writing and whether at an interview or otherwise.
31 The issue is to identify the information the appellant was asked to provide by completing item 37 of the application form. Whatever may be the normal meaning of the word ‘question’, s 99 operates in this case to mean that item 37 is a question, provided that item 37 relevantly enquires as to the situation of the appellant’s daughter. In other words, if the appellant’s daughter was alive at the time of completing item 37, would the answer have been incorrect? Item 37 is addressed to the appellant, not to the appellant and his spouse. Therefore, the reference to ‘your’ family or children is a reference to the appellant’s family or children. I do not see the request as limited to dependent children, as there is nothing in the relevant Regulations, the terms of the application as a whole, or item 37 in particular, to so limit its operation. When the appellant was asked to complete the column ‘All your children (including from previous marriages/relationships)’ this would have included his daughter (if born prior to completing the form). I do not regard the reference to ‘including from previous marriages/relationships’ as doing anything other than directing the mind of any applicant to complete the answer by reference to marriages/relationships other than the one the applicant may currently be enjoying. The information sought after was the appellant’s children – the answer given was correct at the time, but incorrect in the new circumstances. Therefore I would not uphold this ground of the appeal.
Ground 3 – acts of non-compliance
32 The third ground of appeal upon which leave to raise is required and which is now asserted by the appellant is that the Federal Magistrate should have found that the Tribunal made a jurisdictional error by failing to find what acts or omissions of the appellant was the non-compliance relied on for either or both s 101 or s 104 of the Act. In support of the proposed ground the appellant made written submissions in the following terms:
The decision to cancel the visa of the Appellant saw two factual matters (the exclusion of the Appellant from Swinburne and the birth of the child) used as the basis for making two possible findings. One is that the Appellant had breached s 101 by not filling in his application in such a way that "all questions on it are answered and no incorrect answers are given". The first notice specifies a question that has not been answered (AB 47 para 1). The second notice does not. Another is that the Appellant breached s 104 because circumstances had changed such that "...an answer to a question on a non-citizen’s application form or an answer under this section [i.e. s 104] is incorrect in the circumstances." The first notice refers to the birth of a child as a new circumstance. The second sets out facts the [sic] occurred before the first from [sic] was completed on 4 July 2001. This is not a new circumstance for a [sic] 104(1).
33 The Tribunal clearly proceeded on the basis that the incorrect statements in relation to the non-disclosure of the existence of the appellant’s daughter were the primary grounds for cancelling the appellant’s visa pursuant to s 109.
34 The Tribunal regarded the incorrect statements in relation to the appellant not graduating from Swinburne and not disclosing that he had been excluded from Swinburne for two years simply as other instances of non-compliance. Those instances of non-compliance were matters that were required to be considered under reg 2.41(g) in the exercise of the discretion to cancel the appellant’s visa pursuant to s 109. Whether or not those instances of non-compliance were in fact instances of non-compliance was a factual matter for the determination of the Tribunal and one which the appellant did not dispute.
35 Accordingly, the Tribunal’s approach in cancelling the visa under s 109 was entirely proper and reasonable. The Tribunal under the heading ‘Grounds for cancellation’, set out s 101 and s 104. It then found that the appellant had failed to declare to his wife or the Department that he had not been in an exclusive relationship with his wife and that his affair with Ms Hoang had resulted in the birth of his daughter. It further found that he had failed to disclose the birth of his daughter in the ‘Documentation Guide’ which was submitted to the Department in support of his application for permanent visa. These were the matters the subject of the particulars of the possible non-compliance given in the notice of intention to cancel the visa dated 27 May 2004 and given under s 107(1). That is, it determined that there had been a failure to comply as described in the notice. That clearly satisfies the requirements of s 108 and s 109.
36 The Tribunal then proceeded under the heading ‘Discretionary cancellation’ to set out reg 2.41 prescribing the circumstances to which the Tribunal was required to have regard, pursuant to s 109(1)(c), before determining whether the visa should be cancelled. It proceeded to have regard to each of those matters (a)-(k).
37 In having regard to the prescribed circumstances, the Tribunal noted that there was evidence of previous non-compliance in that as the holder of a student visa the appellant had failed to report to the Department when he had deferred his studies and when he was excluded by his education provider, Swinburne, for two years: reg 2.41(g). This had been the subject of the second notice of intention to cancel the visa. As is evident from the Tribunal’s reasoning however, these instances of non-compliance were not relied upon as a ground for cancellation, but were matters taken into account in the exercise of the discretion to cancel the visa pursuant to par 109(1). It was also a matter referred to in the 12 November 2004 notice under s 359A given to the appellant. However, those instances of non-compliance did not need to be separately considered by the Tribunal pursuant to s 109 as the basis for cancelling the appellant’s visa.
38 I am mindful that one must read the Tribunal’s decision fairly, bearing in mind that they are the reasons of an administrative decision-maker: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 and the authorities referred to. As Brennan CJ, Toohey, McHugh and Gummow JJ said in that case at 272:
The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed in the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
See also at 291 per Kirby J and Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35–6 per Brennan J.
39 When one reads the Tribunal’s decision fairly and in light of the above structure of reasoning, no error is apparent. In light of my view on this, leave to amend the notice of appeal to allow for the proposed third ground of appeal should not be granted as there are no reasonable prospects of success.
CONCLUSION
40 I would dismiss the appeal with costs.
Associate:
Dated: 12
December 2006
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Solicitor for the Appellant:
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Counsel for the Respondent:
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Solicitor for the Respondent:
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Date of Hearing:
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Date of Judgment:
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