FEDERAL COURT OF AUSTRALIA Erinfolami v Minister for Immigration & Multicultural Affairs [2001] FCA 956 MIGRATION - visas - cancellation of visa - where visa may be cancelled when notification of intention to consider cancelling visa given - lawfulness of cancellation decision depended on giving of effective notification prior to decision being made - whether notification effective under subsection 119(1) of the Migration Act 1958 (Cth) - held Minister or Minister's delegate with power to cancel visa must be giving consideration to cancelling visa at time notification given for notification to be effective - cancellation decision set aside. Migration Act 1958 (Cth), ss 116, 119, 120, 124, 497 Migration Regulations 1994 (Cth), reg 2.43(1) Musson v Rodriguez [1953] AC 530, cited Tien v Minister for Immigration & Multicultural Affairs (1998) 89 FCR 80, cited Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235, discussed ERINFOLAMI V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1082 of 2001 KATZ J 20 JULY 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1082 of 2001 BETWEEN: KEHINDE BAYODE ERINFOLAMI APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: KATZ J DATE OF ORDER: 20 JULY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1 The cancellation decision of 9 July 2001 be 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 1082 of 2001 BETWEEN: KEHINDE BAYODE ERINFOLAMI APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: KATZ J DATE: 20 JULY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 There is before the Court an application, made under Pt 8 of the Migration Act 1958 (Cth) ("the Act"), for an order of review of a decision which was made on the night of 9-10 July 2001. That decision was made at Sydney airport by Mr Gary Matar, who was, at the relevant time, both an officer of the Department of Immigration & Multicultural Affairs ("the Department") and a delegate of the Minister for Immigration & Multicultural Affairs ("the Minister") for the purpose of making the relevant decision. 2 The decision was one to cancel a business (short stay) visa which had been granted on 29 June 2001, in Lagos, Nigeria, to Mr Kehinde Bayode Erinfolami, a Nigerian national. That visa had required Mr Erinfolami to arrive in Australia no later than 10 July 2001, but, assuming that he did so, had permitted him (subject, of course, to the visa's lawful cancellation) to remain in Australia for fifteen days from the date of his arrival. 3 Mr Erinfolami's visa had been granted consequent on an application by him in which he had stated that he was a sports journalist with TNT Newspapers Ltd of Lagos, that he had been officially accredited by the organisers of the 14th World Veterans' Athletics Championships taking place in Brisbane between 4 and 14 July 2001 and that his intended principal business activity in Australia was covering those Championships. 4 Mr Matar's reasons for cancelling Mr Erinfolami's visa were stated by him in writing to be as follows: "I consider that Mr Erinfolami's travel to Australia is not for the purposes stated in his visa application or at interview at SKSA [that is, Sydney airport] today (9/7/01). I find that Mr Erinfolami travelled to Australia to facilitate the entry of Mr Abiade, in return for a financial gain. I therefore cancell [sic] his Subclass 456 Visa." 5 I note now both that the Mr Abiade referred to by Mr Matar in his reasons was, like Mr Erinfolami, a Nigerian national and that Mr Abiade had arrived in Sydney on the afternoon of 9 July 2001 on the same aeroplane as had Mr Erinfolami. I note also that, according to the evidence before me of Mr Jasvir Gill, a Departmental officer to whom I will later refer again, Mr Abiade had told Mr Gill, at some time before 6.15 pm on 9 July 2001, that Mr Erinfolami "arranged and paid for my visa and my ticket". Mr Abiade also told Mr Gill,"I haven't paid him [that is, Mr Erinfolami]. I will meet some relatives in Australia who will give me the money to pay [Mr] Erinfolami". 6 Mr Erinfolami is presently in immigration detention and has been so since the cancellation of his visa. He lodged his application for an order of review of the cancellation decision on 16 July 2001 and I heard that application on a final basis yesterday, 19 July 2001. The need for the urgency of the hearing of his application for an order of review arose from the fact that if, as Mr Erinfolami claimed, the decision to cancel his visa had been unlawful, then that visa would, in any event (and subject, of course, to its being cancelled again, but lawfully), expire by the ordinary effluxion of time next Tuesday, 24 July 2001. That same fact has also required me to determine urgently Mr Erinfolami's application for an order of review, so that these reasons for judgment have been produced more hurriedly than, and are not as comprehensive as, I would have preferred. 7 Mr Matar's cancellation decision was stated to have been made under par 116(1)(g) of the Act, read together with par 2.43(1)(i) of the Migration Regulations 1994 (Cth) ("the Regulations"). Paragraph 116(1)(g) of the Act confers on the Minister a power to cancel a visa if satisfied that a prescribed ground for cancelling a visa applies to the holder, while par 2.43(1)(i) of the Regulations prescribes as a ground, in the case of a business (short stay) visa (see subpar 2.43(1)(i)(i) of the Regulations), 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 stay in, or visit, Australia temporarily for business purposes…." 8 Mr Matar's cancellation decision was a judicially-reviewable decision within the meaning of par 475(1)(c) of the Act. Further, since Mr Erinfolami was in immigration clearance at Sydney airport at the time when the cancellation decision was made, the cancellation decision was not precluded by par 475(2)(c) of the Act from being such a judicially-reviewable decision: see par 338(3)(b) of the Act. 9 It is convenient to mention now that s 116 of the Act is to be found in Pt 2, Div 3, Subdiv D thereof, while Pt 2, Div 3, Subdiv E thereof provides generally for the procedure for cancelling visas under Pt 2, Div 3, Subdiv D thereof. Contained within Pt 2, Div 3, Subdiv E thereof are ss 119-20. They relevantly provide as follows: "119 Notice of proposed cancellation (1) … if the Minister is considering cancelling a visa … under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and: (a) give particulars of those grounds and of the information … because of which the grounds appear to exist; and (b) invite the holder to show within a specified time that: (i) those grounds do not exist; or (ii) there is a reason why it should not be cancelled. (2) The holder is to be notified in … a way that the Minister considers to be appropriate. (3) The way of notifying the holder … may, without limiting the generality of subsection (2), be orally. … 120 Certain information must be given to visa holder (1) In this section, relevant information means information … that the Minister considers: (a) would be the reason, or a part of the reason, for cancelling a visa; and (b) is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and (c) was not given by the holder; and (d) was not disclosed to the holder in the notification under section 119. (2) The Minister must: (a) give particulars of the relevant information to the holder; and (b) ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and (c) invite the holder to comment on it. (3) The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances." 10 As he ultimately presented his case before me, Mr Erinfolami relied on three matters as disclosing judicially-reviewable error in the making by Mr Matar of his cancellation decision. They were, in substance, as follows: first, a notification given to Mr Erinfolami under subs 119(1) of the Act had been ineffective because, at the time at which it had been given, no person with power to cancel Mr Erinfolami's visa under s 116 of the Act, whether the Minister or one of the Minister's delegate's for the purpose, such as Mr Matar, was yet considering cancelling Mr Erinfolami's visa; secondly, Mr Erinfolami had not been given, whether under par 119(1)(a) or par 120(2)(a) of the Act, particulars of certain information which had afterwards been relied on by Mr Matar in cancelling Mr Erinfolami's visa, namely, that it had been in return for a financial gain for facilitating the entry of Mr Abiade to Australia that Mr Erinfolami had travelled to Australia; and, thirdly, contrary to what was said to have been Mr Matar's approach in the present matter, provided that the Minister is satisfied that the holder of a business (short stay) visa continues to have an intention either to stay in or visit Australia temporarily for legitimate business purposes, par 116(1)(g) of the Act, read together with par 2.43(1)(i) of the Regulations, does not empower the Minister to cancel that visa merely because the Minister is satisfied that the holder has an intention as well either to stay in or visit Australia temporarily for purposes other than legitimate business purposes. 11 Each of the first two of those three matters was said to enliven the ground of review set out in par 476(1)(a) of the Act, while the third of those three matters was said to enliven one or more of the grounds of review set out in pars 476(1)(b), (c) and (e) of the Act. 12 Although not all three of those matters had been particularised in Mr Erinfolami's application for an order of review as lodged, the Minister did not object before me to Mr Erinfolami's relying at the hearing on those matters which had not been so particularised. Further, given the urgency attached to the hearing and determination of Mr Erinfolami's application, I did not require Mr Erinfolami to amend in writing the particulars of the grounds of review which had been set out in his application as lodged, in so far as they had not included reference to those matters. I note, however, that Mr Erinfolami had relied, in his application for an order of review as lodged, on all four of the grounds of review to which I have referred above. 13 So far as concerns the first of the three matters on which Mr Erinfolami relied before me, it is convenient to begin my discussion of it by referring to the contents of a filled-in Departmental form numbered 1111 relating to Mr Erinfolami, that filling in being said to have been completed on 9 July 2001. 14 Form 1111, which appears to have been designed in July 2001, the current month, is stated to be intended for "Airport Use". It is divided into three parts. Part A is headed "Notice of intention to consider cancelling a visa". Part B is headed "Record of decision to cancel visa" (although it should presumably have been headed "Record of decision whether to cancel visa" (my emphasis)). Part C is headed "Notification of decision (in immigration clearance)". For the purpose of discussing the claimed judicially-reviewable error which I am presently considering, it will be necessary for me to say something only about Pt A of the form filled in regarding Mr Erinfolami. 15 Part A of the form contains five sections, each of which is given a heading. It also contains a summary of pars (a) to (g) of subs 116(1) of the Act and of subregs (1) and (2) of reg 2.43 of the Regulations. The heading to section two of Pt A of the form is "Possible grounds for cancellation (including … adverse information given by third parties)" (emphasis in original). That section of Pt A of the form contains some pre-printed information, with a Departmental officer being expected to fill in certain additional information. 16 It appears from section four of Pt A of the form filled in regarding Mr Erinfolami that Mr Gill, the Departmental officer who filled in such additional information as appears in Pt A of that form, completed that task at 10.15 pm on 9 July 2001. Mr Gill gave evidence before me that he had given the filled-in Pt A of the form to Mr Erinfolami at that time. I did not understand Mr Erinfolami to dispute that evidence. 17 The pre-printed text of section two of Pt A of the form begins as follows: "It has come to the Department's attention that there may be grounds for cancellation of your visa under section 116 of the Migration Act 1958 for the following reasons: ". In the form relating to Mr Erinfolami, Mr Gill only inserted in a box following that text the words, "Not a genuine business/tourist". The pre-printed text then continues, "If in this case [presumably, 'If this is the case' was intended], your visa may be cancelled under: subsection 116(1)[ ]". In the form relating to Mr Erinfolami, Mr Gill inserted in the box following "116(1)" the information, "(g)". The pre-printed text then continues, "and, if applicable, regulation 2.43(1)[ ]". In the form relating to Mr Erinfolami, Mr Gill inserted in the box following "2.43(1)" the information, "(I)(i)". (Presumably, "(i)(i)" was meant.) It is unnecessary to make further reference to section two of Pt A of the form relating to Mr Erinfolami. 18 Although by 10.15pm on 9 July 2001, Mr Gill was in possession of information considered by him to be adverse to Mr Erinfolami which had been given to him by a third party, namely, the information which had been given to him by Mr Abiade to which I have already referred above, Mr Gill did not obey the command implied by the heading to section two of Pt A of the form to insert that information in section two. Nor did he include in Pt A of the form particulars of the information because of which the grounds for cancelling Mr Erinfolami's visa appeared (whether to him or to anyone else) to exist: compare par 119(1)(a) of the Act. 19 As to those omissions, however, Mr Gill's evidence before me was that when he gave the filled-in Pt A of the form to Mr Erinfolami, "I explained the process involved in the consideration. I read all of Part A to him and elaborated on the entry to item 2 of Part A of the form by saying: 'You have a visa on the basis you are coming to Australia to cover the games, but we have a number of issues to consider as to whether you are a genuine business tourist and are here only to cover the games. You have told me you do not know anyone in Australia, but there is a person called Erinfolami waiting for you outside. Abiade is saying you organised everything for him, but you are saying you did not. The bank that your cheque is drawn on does not exist in Australia. Taking into account all these issues, I am of the view that you may not be a genuine business tourist. If this is the case, your visa may be cancelled.'" 20 Before me, Mr Erinfolami disputed Mr Gill's evidence which I have just set out as to the latter's having elaborated orally on the entry to item 2 of Pt A of the form. According to Mr Erinfolami's evidence, it was not until some time after the commencement of an interview which he had had with Mr Gill, conducted subsequently to the giving to him of Pt A of the form, that he had first been given by Mr Gill any relevant information regarding suspicions of his intentions. 21 As to that dispute, I accept the evidence of Mr Gill in preference to that of Mr Erinfolami. During the hearing of the present matter, I was told by the Minister from the Bar table, without demur by Mr Erinfolami, that Mr Gill's evidence had been based on a contemporaneous record which he had created of the events of 9 July 2001, to which record Mr Erinfolami had earlier been given access. It is also likely that, during the evening of 9 July 2001, Mr Erinfolami, who, I infer from seeing him in the witness box, does not speak English as his first language, was very tired and confused, given not only the long period of travel which he had just undergone (he had left Nigeria on 8 July 2001), but also the circumstances in which he found himself. Those matters lead me to prefer Mr Gill's evidence on the matter to that of Mr Erinfolami. 22 Having accepted Mr Gill's evidence to which I have referred above, I must at the same time record my view of the unwisdom from the Department's point of view of Mr Gill's conduct in not giving to Mr Erinfolami entirely in writing the notification under s 119 of the Act. Surely, the whole point of having in use a form like the one numbered 1111 is so that such notification will be given entirely in writing. To use the form as intended will either tend to prevent evidentiary disputes of the very type which arose in the present case or, at least, tend to increase the chances of their being resolved in the Department's favour: compare Musson v Rodriguez [1953] AC 530 at 533 (JCPC: Lord Normand, Lord Reid, Sir Lionel Leach and Mr LMD de Silva). 23 In addition to Mr Gill's evidence regarding the events of 10.15 pm on 9 July 2001 to which I have referred above, he also gave other evidence to which it is necessary for me now to refer. First, he acknowledged that he did not have a delegation from the Minister of the Minister's power to cancel visas under s 116 of the Act. Secondly, he acknowledged that his first communication with Mr Matar concerning Mr Erinfolami had not occurred until some time (I infer almost two hours) after he (Mr Gill) had given to Mr Erinfolami the filled-in Pt A of the form together with the oral elaboration. (Nor, I should perhaps add, was there any suggestion before me that Mr Gill had, before giving to Mr Erinfolami the filled-in Pt A of the form, been in communication with any other person with the power to cancel Mr Erinfolami's visa.) 24 It was that evidence of Mr Gill's which led Mr Erinfolami to make his first claim of judicially-reviewable error regarding the cancellation decision. 25 Mr Erinfolami submitted that the lawfulness of a cancellation decision under s 116 of the Act depended on its having been preceded by the giving of an effective notification under s 119 of the Act. That flowed, he said, from subs 124(1) of the Act, which deals with the question when a decision about visa cancellation may be made and provides relevantly that "the Minister may cancel a visa at any time after notice about the cancellation has been given under section 119". 26 I did not understand the Minister to dispute the correctness of Mr Erinfolami's submission that the lawfulness of a cancellation decision under s 116 of the Act depends on its having been preceded by the giving of an effective notification under s 119 of the Act, the correctness of which submission I accept. Its correctness is supported, not only by the terms of subs 124(1) of the Act, but also by the approach taken in the Zhao case, to which I will refer below, and by the decision of Goldberg J in Tien v Minister for Immigration & Multicultural Affairs (1998) 89 FCR 80 at 92 and 98. 27 That being the case, the question which next arises is whether the notification given by Mr Gill to Mr Erinfolami at 10.15 pm on 9 July 2001 (partly in writing and partly orally, as I have found) was an effective notification under s 119 of the Act. (I note that it was not suggested by the Minister that if that notification was not effective, some other effective notification had occurred at some other time before Mr Matar made his decision.) 28 On that question, Mr Erinfolami submitted that, in order for the giving of a notification under s 119 of the Act to be effective, the Minister (or at least a person who had, by delegation, the Minister's power to cancel a visa) must, at the time of the giving of that notification, be giving consideration to cancelling the visa. That flowed, Mr Erinfolami said, from the opening words of subs 119(1) of the Act, "[I]f the Minister is considering cancelling a visa … under section 116, the Minister must notify the holder …". 29 Mr Erinfolami's submission which I have just set out appears to me, merely giving to the opening words of subs 119(1) of the Act their ordinary meaning, to be correct. However, the correctness of the submission was disputed by the Minister. 30 The sole basis on which the Minister disputed the correctness of that submission was by reliance on a statement made by a Full Court of this Court (French, Hill and Carr JJ) in Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 (1 September 2000, unreported) concerning s 119 of the Act. That statement was, "At a practical working level a degree of flexibility is important". 31 However, I consider: first, that the context in which that statement was made deprives the statement of any present relevance; and, secondly, that that context contains in any event a suggestion of the correctness of Mr Erinfolami's submission which I am presently discussing. 32 The Full Court in Zhao discussed (see at [22]-[26]) the statutory procedures for the cancellation of a visa. It said, "[22] The provisions of Subdivision E of the Migration Act, with which the Court is here concerned, are part of a codified set of procedures analogous to the common law rules of procedural fairness which relate to the right to be heard. [23] Section 119 addresses both the content and the manner of the notification to be given by the Minister or the Minister's delegate before proceeding to cancellation under s 116. Dealing first with its content, the notification must contain a statement 'that there appear to be grounds for cancelling' the visa. It must provide particulars of the grounds and 'of the information … because of which the grounds appear to exist'. The visa holder is to be invited to show within a specified time that the grounds do not exist or that there is a reason why the visa should not be cancelled (s 119(1)). [24] The section contemplates that when the notice is issued the decision-maker will not have formed a concluded view on the question of cancellation. The notice is to specify no more than that there 'appear' to be grounds for cancellation. The plain statutory intention of this verbal formula is to assure the visa holder that the matter has not been finally decided. It also indicates that at this stage the decision-maker must not have finally decided the matter. … [25] Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open. The supporting information will include a description of any evidence upon which the grounds are based. The grounds, as particularised, may be inferences from the evidence and in that sense conclusionary. The other element of the notice is the invitation to the holder to show, within a specified time, that the grounds do not exist or that there is a reason why the visa should not be cancelled. It is important to note that the terms of the invitation do not reflect the imposition upon the visa holder of a statutory onus at this point which, if not satisfied, will result in the visa being cancelled. That would no doubt be the case if a firm intention to cancel the visa had been formed and the visa holder's task was to persuade the decision-maker to abandon that intention. The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. [26] The mode of notification may be prescribed. There is, however, no prescription, so notice may be given under s 119 in any way the Minister thinks appropriate (s 119(2)). It may be notified orally (s 119(3)). The section does not indicate explicitly whether notice may be given in more than one way and at more than one time. However provided the statutory purpose of fairly informing the visa holder is served, there is no reason why the requirement of notification which is substantive rather than formal could not be met by both written and oral notification. It may be that the notification could be found in more than one document. So an initial document may, at the request of the visa holder, be the subject of greater elaboration. At a practical working level a degree of flexibility is important. The requirement of notification of grounds of possible cancellation is not a requirement for delivery of some form of pleading which may then be the subject of strict construction and technical criticism. The overall purpose to be served by s 119 is procedural fairness and it is that which informs the construction and application of the section." 33 It will be seen that the statement from the Full Court's reasons for judgment on which the Minister relied before me, about the importance of a degree of flexibility at a practical working level (see at [26]), was directed specifically to the question whether the requirement of notification under subs 119(1) of the Act can be complied with by a notification partly oral and partly in writing (as I have found occurred in the present case) or by a notification entirely in writing, but in more than one writing. Each of those two methods was held to be capable of satisfying the requirement imposed by subs 119(1) of the Act. The statement relied on by the Minister was not directed to a situation in which a notification, in whatever way it is given, is given at a time when no one with the power to cancel a visa holder's visa is considering cancelling that visa. I am unable to see how the importance of a degree of flexibility at a practical working level in the former situation can affect the latter situation, given what appears to me to be the clear meaning of the opening words of subs 119(1) of the Act. 34 I note also that, in the passage which I have quoted above from the Full Court's reasons for judgment, there is (see at [23]) a reference to the fact that s 119 addresses "both the content and the manner of the notification to be given by the Minister or the Minister's delegate before proceeding to cancellation under s 116". Implicit in that statement appears to me to be an acceptance of the view which I take of the matter, namely, that the notification under subs 119(1) of the Act, in order to be effective, must be given when either the Minister or a delegate of the Minister who is capable of "proceeding to cancellation under s 116" of the Act is considering whether so to proceed. 35 Before concluding my discussion of Mr Erinfolami's first basis of attack on the cancellation decision, there are two other matters which I should mention. 36 First, I was informed by the Minister from the Bar table during argument (with Mr Erinfolami's concurrence) that Mr Gill had a delegation (I assume from the Minister was meant, although I did not understand that to be made explicit) to give notifications under s 119 of the Act. Although I was not favoured with a copy of any such delegation, I am prepared to accept the accuracy of the information for present purposes. However, as the Minister effectively conceded when informing me of the delegation, if subs 119(1) of the Act is properly to be construed as requiring that a person with the power to cancel a visa be considering the exercise of that power at the time of the giving of a notification under the provision, then the existence of such a delegation cannot cure the absence of any such consideration at the time at which Mr Gill gave the notification to Mr Erinfolami. 37 Secondly, neither party referred me during argument to subs 497(2) of the Act. However, that provision, which tells one of tasks which a person with a power, by delegation, to cancel visas is not required to perform, appears to me, like the previous matter which I have discussed, not to affect in any way the clear requirement in subs 119(1) of the Act that someone with the power to cancel a visa be considering doing so at the time of the giving of the notice under the provision. 38 In the result, I have decided that I should set aside the cancellation decision made regarding Mr Erinfolami's visa, for the reason that it was not preceded by the giving to Mr Erinfolami of an effective notice of the type required to be given to him by subs 119(1) of the Act. In those circumstances, I propose to say nothing about the other two matters on which Mr Erinfolami relied before me in attacking the cancellation decision. Costs will follow the event. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz. Associate: Dated: 20 July 2001 Counsel for the Applicant: Mr S Lloyd Solicitors for the Applicant: Parish Patience Counsel for the Respondent: T Reilly Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 19 July 2001 Date of Judgment: 20 July 2001