Darko v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 304

FEDERAL COURT OF AUSTRALIA

Darko v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 304

MIGRATION – appeal – judicial review of Migration Review Tribunal's decision upholding the decision of the delegate to cancel short stay visa – whether tribunal erred in finding that the applicant ceased to have an intention to visit Australia temporarily as required by s 116 of the Migration Act 1958 (Cth) and Reg. 2.43 of the Migration Regulations 1994 (Cth) – applicant never a genuine visitor from the outset – unnecessary to consider whether jurisdictional error committed by Tribunal – appeal dismissed.

Migration Act 1958 (Cth) s 116 Migration Regulations 1994 (Cth) reg. 2.43 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ACR 24 – referred to SARPOMAH MINGLE DARKO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1411 OF 2002 CONTI J 3 APRIL 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY 1411 OF 2002

BETWEEN: SARPOMAH MINGLE DARKO

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 3 APRIL 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for review is dismissed. 2. The applicant pay the respondent's costs. 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 1411 OF 2002

BETWEEN: SARPOMAH MINGLE DARKO

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 3 APRIL 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant has applied to the Court for review of the decision of the Migration Review Tribunal ("the tribunal") made on 2 December 2002 upholding the Minister's decision to cancel her Short Stay (visitor) (class TR) Subclass 676 Tourist (Short Stay) visa ("the visa"). The application for review filed on 23 December 2002 is purportedly made pursuant to ss 39B and or 39B(1A) of the Judiciary Act 1903 (Cth). The applicant contends thereby as the only ground of review that "the tribunal's decision displays jurisdictional errors of law". Particulars are then provided (literally) as follows: "the Tribunal made a jurisdictional error when it held that a ground for cancellation of the applicant's visa exist under s 116(1)(g) pursuant to regulation 2.43(1)(j) after the original cancellation of the applicant's visa (made on 12 December 2001) was removed on 15 July 2002. When on revocation, the visa is taken to have been granted on revocation and would require evidence of intention which has ceased to exist since the grant of the visa." 2 The applicant is a citizen and national of Ghana. She obtained a visitor's visa at the Australian High Commission in Pretoria in South Africa on 29 November 2001. The visa had purportedly been cancelled on 12 December 2001, when it was discovered that it was one of 17 visas that had been fraudulently issued. On 27 April 2003, the applicant attempted to enter Australia without knowing that the visa had previously been cancelled. Upon arrival in Australia, the applicant was interviewed by a Departmental Officer who resolved that the cancellation of the visa should not be revoked. Thereafter, the applicant was detained at the Villawood Immigration Detention Centre. 3 On 29 April 2002, an application for a protection visa was lodged with the Department of Immigration and Multicultural Affairs (as it then was). The application was withdrawn on 17 May 2002. Also on 29 April, the applicant commenced proceedings in the Federal Court of Australia, and successfully obtained an order that the decision not to revoke the cancellation of the visa be set aside, and that the matter be returned to the Department for reconsideration. 4 On 15 July 2002, the applicant was notified in writing that the cancellation of the visa had been revoked. She was informed as follows: "After considering the facts of the case, the department has decided that there was no ground for cancelling your visa because there is no evidence to support the initial decision taken by Pretoria to cancel the visa under the above stated power. As they relied on their finding of fact that the visa was granted fraudulently the circumstances permitting the grant of the visa never did exist and the cancellation power chosen was inappropriate." 5 Also on 15 July 2002, the applicant received a "notice of intention to consider cancellation under section 116 of the Migration Act 1958". The notice adverted to the fact that there were reasonable grounds to conclude that the applicant "did not have at the time of the grant of the visa [or has] ceased to have, an intention to remain in Australia temporarily as a tourist". The applicant was invited to comment on that information at an interview held later that day, and she was provided with a telephone interpreter. Subsequently on 15 July 2002, the applicant's visa was cancelled pursuant to s 116 of the Migration Act 1958 (Cth) ("the Act"). The Tribunal member summarised the tenor of the delegate's decision as follows: "In the decision, the delegate states that the review applicant admitted to having lodged the application for a protection visa, that a fellow detainee had advised her that it was a way to get out of detention, and also that she had made false claims to achieve that purpose. The delegate also stated that the review applicant has denied any knowledge of, or involvement in, the fraudulent grant of the visa(s). The delegate also stated that the review applicant admitted to having made contradictory statements at the airport interview, but claimed she was experiencing stress, and was unable to think clearly." 6 On 17 July 2002, an application for a review of the Minister's decision was lodged with the tribunal. The ground of review was that the applicant "did not believe or agree that there was any ground for the cancellation of the visa". During the course of the hearing, the applicant's adviser sought to raise further points of appeal namely that: (i) the applicant denied "ever granting them an interview where she admitted providing misleading statements to the Department"; and (ii) "the correct construction of the Act provides that the Minister can cancel under s 128 without notice but thereafter, the Minister must give notice that complies with s 129. If the applicant responds to the notice, then the Minister is to proceed to make a decision whether or not to revoke under s 131… Absent any such response, the Minister cannot proceed to make a decision under s 131… The purported revocation is invalid and the Department had no power to make another decision". 7 On 19 September 2002, the tribunal advised the applicant in writing of the following information which influenced the Minster's decision not to revoke the cancelled visa: "This information was an affidavit from Phillip Lowering, an officer of the Department, who was a senior Migration Officer at the Australian High Commission in Pretoria for three years. He refers to the circumstances on 12 December 2001 when a locally engaged staff member in Pretoria was alleged to have fraudulently issued seventeen visas. Mr Lowering refers to his cancellation of the seventeen visas on 13 December 2001. Also including in that letter was information from the Departmental file which indicated that Mr A was the applicant's brother and was resident in Australia. This was said to contradict information given by the review applicant that she had no family in Australia. Also included was information available from the Departmental file which indicated that the review applicant had indicated that claims made in her protection visa were false." The applicant denied these allegations. 8 The applicant was invited by the tribunal to give oral evidence. The significant aspects of her testimony can be summarised as follows: (i) "In early 2001 [the applicant's] parents had found out that she was a lesbian and as a result [the applicant] moved from her village of X to the village of Y"; (ii) When the applicant was staying in the village of Y, a neighbour who is apparently the mother of Mr A advised her that "she had a son living in Australia and this would be a good place to go to escape the problems with her family"; (iii) The applicant and her boyfriend travelled to Pretoria for two weeks to arrange a visa; the applicant paid 1500 rand for the visa, which was five times greater than the application fee; the applicant testified that she "paid what her boyfriend told her to pay". (iv) After the applicant's visit to Pretoria, she returned to her "home country and lived in Y"; the applicant gave evidence that upon returning to the village of Y, her family harassed her; the applicant then departed for Australia. (v) The applicant testified about her intentions in coming to Australia. "[h]er intention… was to remain in Australia for about six weeks to have a break from her problems. She believed it would be alright to return to her home country after that time. She would not go back to Y but would go to another area of her home country". (vi) The applicant informed the tribunal that she would "experience hardship if her visa remained cancelled because if she were applying to other countries she may have difficulty travelling there". 9 The tribunal's findings and reasons were recorded at some length in support of its affirmation of the decision of the delegate not to revoke the cancelled visa. The tribunal did not accept that the applicant's intention in coming to Australia was only for a short period. Rather, the tribunal was of the view that she could not have genuinely held this belief because of the severity of the problems she faced in the event that she returned to her home country. The tribunal cited the applicant's testimony in support of this conclusion: "I left [my home country] because my family (father and sisters and mother, brother and church groups) just found out of my sexual lifestyle. I am a lesbian and always managed to keep it secret until recently. [If I go back] I will be killed by my friends, family even my church members. Wherever and whenever they know my whereabouts." 10 The tribunal did not accept that the difficulties expressed by the applicant would fade upon returning home after a six week break. The tribunal relied upon the fact that during the applicant's 12 month stay in the village of Y, her problems with her family did not subside. Indeed the applicant herself testified that her family located her in the village of Y and "were intending to harass her there". Moreover, the complications with her family had continued since April 2001 and therefore "there was no genuine basis for believing that they would be resolved after a six week period spent in Australia". This formed the basis for the tribunal's conclusion that the applicant did not hold the relevant intention in the terms identified in Reg 2.43(j) of the Migration Regulations 1994 (Cth) ("the Regulations") 11 In these proceedings, the applicant contended that the tribunal could not have held that there was a ground for cancellation after the original application. This argument proceeded on the footing that there must be evidence of an intention which has ceased to exist since the revocation of the cancelled visa. 12 Under s 116(1) of the Act, "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". The prescribed grounds are referred to in Regulation 2.43 of the Regulations as follows: "(1) For the purpose of paragraph 116(1)(g) of the Act… the grounds prescribed are: … (j) in the case of the holder of: (i) a Subclass 676 (Tourist (Short 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…" 13 Section 133 of the Act makes provision for the effect of the revocation of a cancellation of a visa made in circumstances where the visa holder was outside Australia. It provides: "Effect of revocation of cancellation (1) If the cancellation of a visa is revoked, then, without limiting its operation before cancellation, it has effect as if it were granted on the revocation…" 14 The short answer to the applicant's contention is that it is readily apparent that the tribunal did not limit itself to the period of the original grant. On the contrary, the tribunal's supervening finding was that the applicant did not hold the requisite intention at the time of application "only to visit, or remain in, Australia as a visitor temporarily for the purpose… other than a purpose related to business or medical treatment". The applicant's evidence to the effect that she would only stay in Australia temporarily was rejected, and the tribunal therefore found that the applicant was not a "genuine visitor". I would add the observation that for what it may matter, the circumstance that the applicant has remained in Australia since her arrival here on 27 April 2002, and moreover that the applicant is pursuing the present litigation, despite the expiration of her visa, provides implicit testimony of her original intention not to visit Australia merely temporarily. 15 The conclusions which I have reached render it unnecessary for me to consider the existence or otherwise of jurisdictional error in the tribunal's decision. I observe nevertheless that no evidence of procedural unfairness or absence of a bona fide attempt to exercise power on the part of the tribunal is revealed from the material placed before me. There has been neither a failure to exercise jurisdiction nor an excess of jurisdiction on the part of the tribunal (Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24). 16 In the result, the application for review is dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.