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

FEDERAL COURT OF AUSTRALIA Cowle v Minister for Immigration & Multicultural Affairs [2000] FCA 49 MIGRATION - Application to review the Immigration Review Tribunal's ("IRT") affirmation of the delegate's decision to cancel the Subclass 976 Visa under s 116(1)(g) of the Migration Act 1958 (Cth) - consideration of Reg 2.43(1)(k) - whether s 119 in connection with s 349 imposes further requirements on the IRT.

Migration Act 1958 (Cth) s116(1)(g), s 119, s 349, s 475 Migration Regulations 1994 2.43(1)(k), 457.211, 457.221 Tien v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 405 Cited Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Cited

KEVIN JOSEPH COWLE v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS Q4 OF 1999 COOPER J BRISBANE 3 FEBRUARY 2000

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q4 OF 1999

BETWEEN: KEVIN JOSEPH COWLE

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: COOPER J

DATE OF ORDER: 3 FEBRUARY 2000

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs of and incidental to the application, including reserved costs, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q4 OF 1999

BETWEEN: KEVIN JOSEPH COWLE

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: COOPER J

DATE: 3 FEBRUARY 2000

PLACE: BRISBANE

REASONS FOR JUDGMENT

Background 1 On 30 September 1998 the applicant last entered Australia as the holder of an Electronic Travel Authority (Class UD) Subclass 976 (Electronic Travel Authority Visitor) Visa ("the visa"). The visa was due to expire on 30 December 1998. 2 On 11 November 1998 the visa was cancelled pursuant to s 116(1)(g) of the Migration Act 1958 (Cth) ("the Act"). The ground relied upon was that contained in Reg 2.43(1)(k) of the Migration Regulations 1994 ("the Regulations"), namely that the delegate of the Minister was satisfied that the applicant did not have at the time of the grant of the visa, or had ceased to have, an intention only to visit Australia temporarily for tourism purposes. 3 On 19 November 1998 the applicant applied to the Immigration Review Tribunal ("the Tribunal") for a review of the decision of the delegate of the Minister to cancel the visa. On 8 December 1998 the Tribunal affirmed the decision to cancel the visa. 4 The applicant, on 6 January 1999, appealed to this Court pursuant to s 475 of the Act to review the decision of the Tribunal. On 19 February 1999 the applicant filed an amended application. 5 On the hearing of the application on 19 August 1999 the applicant sought and was granted leave to further amend the grounds relied upon to set aside the decision of the Tribunal. The amended grounds upon which the applicant relied and upon which the application was heard, were : "(a) The Tribunal and the Minister's delegate failed to observe procedures required by the Migration Act, namely, under Section 119: (i) failing to give the Applicant notice, particulars and information concerning of the proposed ground of cancellation, namely that the Applicant ceased to have an intention to visit Australia temporarily for tourism purposes; (ii) failing to give the Applicant an opportunity to show that the ground did not exist or that there was a reason why the visa should not be cancelled; (iii) failing to advise the Applicant of the nexus between the proposed ground of cancellation and the information giving rise to the ground. (b) The Tribunal's decision involved an error of law, namely that the expression of 'an intention only to visit Australia for tourism purposes' in sub-regulation 2.43(1)(k) Migration Regulations was incorrectly interpreted." (c) that there was no evidence or other material to justify the making of the decision and in particular: (i) there was no evidence or other material indicating an intention on the part of the Applicant to remain in Australia, if not granted a Subclass 457 Visa; (ii) the Tribunal based a decision on the existence of particular facts, namely that the Applicant ceased to have an intention to only visit Australia permanently for tourism purposes and those facts did not exist."