FEDERAL COURT OF AUSTRALIA Salama v Minister for Immigration and Border Protection [2017] FCA 2 Appeal from: Salama v Minister for Immigration & Anor [2016] FCCA 540 File number: NSD 481 of 2016 Judge: PERRY J Date of judgment: 9 January 2017 Catchwords: MIGRATION – cancellation of visa under s 109 of the Migration Act 1958 (Cth) – online visa application form - where appellant answered "divorced" to question as to relationship status - whether Tribunal erred in considering whether the appellant's answer was "incorrect" within the meaning of s 101 – whether answer of "married" on online visa application form refers to marriage legally recognised under Australian law – where Tribunal made findings as to what was the most correct answer but no finding as to whether the answer was "incorrect" – where finding that answer was "at least misleading" or technically correct does not equate to finding it is incorrect - appeal allowed. Legislation: Evidence Act 1995 (Cth) s 191 Federal Court of Australia Act 1976 (Cth) s 27 Marriage Act 1961 (Cth) s 88D Migration Amendment (Border Integrity) Act 2007 (Cth) Migration Act 1958 (Cth) s 97, 100, 101, 104, 107, 108 and 109 Migration Reform Act 1992 (Cth) Migration Regulations 1994 (Cth) reg 1.03, 1.18, 2.07, Schedule 1, Schedule 2 Explanatory Memorandum to the Migration Reform Bill 1992 Cases cited: Sandoval v Minister for Immigration and Multicultural Affairs [2001] FCA 1237; (2001) 194 ALR 71 SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 303; (2003) 134 FCR 43 Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 Date of hearing: 19 August 2016 Date of last submissions: 1 September 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 68 Counsel for the Appellant: Mr D Godwin Solicitor for the Appellant: Brett Slater Solicitors Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent filed a submitting appearance save as to costs ORDERS NSD 481 of 2016 BETWEEN: MAHMOUD MAHDY MAHMOUD SALAMA Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: PERRY J DATE OF ORDER: 9 January 2017 THE COURT ORDERS THAT: 1. Leave is granted to amend the notice of appeal to include the fifth proposed ground of appeal and to raise ground 5 on the appeal. 2. On or before 4.00pm on 13 January 2017, the appellant is to file and serve the amended notice of appeal. 3. The appeal is allowed. 4. Orders 1 and 2 of the Federal Circuit Court made on 18 March 2016 are set aside. 5. A writ in the nature of certiorari issue directed to the second respondent, quashing its decision made on 24 February 2015. 6. A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine the appellant's application according to law. 7. The first respondent is to pay the costs of the appellant in the Federal Circuit Court and on the appeal as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRY J: 1 INTRODUCTION [1] 2 SHOULD LEAVE BE GRANTED TO ADD THE NEW GROUND OF APPEAL? [6] 3 BACKGROUND [14] 3.1 The visa application and the decision of the delegate to cancel the appellant's visa [14] 3.2 The Tribunal's decision [30] 3.3 The decision of the Federal Circuit Court [40] 4 STATUTORY FRAMEWORK [42] 4.1 Status of the online application form under the Migration Act [42] 4.2 Statutory discretion to cancel a visa under s 109 of the Migration Act [47] 5 CONSIDERATION [55] 6 CONCLUSION [67] 1. INTRODUCTION 1 This appeal illustrates the difficulties which can result where the multiple choice answers posed by drop-down menus and accompanying pop-up explanations in online forms may be inadequate to accommodate the complexity of individual circumstances which may in fact arise. 2 The appeal arises from the decision by the Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) to cancel the appellant's Subclass (155) (Five Year Resident Return) visa (the Resident Return visa or visa). The Tribunal decided in the exercise of discretion to affirm the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to cancel the appellant's visa. That discretion was enlivened by, among other things, the Tribunal's finding that the appellant's answer of "divorced" to the question of "relationship status" in his Resident Return visa online application did not comply with the requirement in s 101 of the Migration Act 1958 (Cth) (the Migration Act) that "no incorrect answers are given or provided". The Tribunal found that the correct answer was that the appellant was married under Egyptian law at the time he provided the answer, notwithstanding that that marriage was not recognised under Australian law and he was divorced under Australian law. I note that the delegate had earlier found that the appellant's answer to the same question was incorrect on a different ground, namely, that the correct answer was that the appellant was both divorced and in a de facto relationship because his Egyptian marriage was not recognised under Australian law. 3 The application for judicial review of the Tribunal's decision was dismissed by the Federal Circuit Court. At the heart of the appeal as originally pleaded and elucidated in submissions are two issues, namely, whether the Court below erred: (1) in holding that the "relationship status" question in the online visa application form is a question determined by reference to "practical reality" as opposed to the appellant's relationship status as a matter of Australian law (notice of appeal, grounds 1 and 2); and/or (2) in not holding that the Tribunal had erred in assuming that only one answer to the "relationship status" question could be correct for the purposes of determining whether an "incorrect" answer had been given contrary to s 101 of the Migration Act, whereas there were a number of factually correct answers (notice of appeal, grounds 3 and 4). 4 Further or in the alternative, the appellant seeks leave to amend the notice of appeal to raise as a new fifth ground of appeal whether the Court below erred in failing to hold that the Tribunal found that it was sufficient to ground a contravention of s 101 of the Migration Act to find that the answer given was "misleading". 5 For the reasons that follow, I allow the appeal on grounds 1 and 2 of the notice of appeal. Were it necessary to do so, I also consider that grounds 3 and 4 are made out. Further, while I consider that it is in the interests of justice to grant leave to amend the notice of appeal to add the fifth proposed ground, it was ultimately unnecessary to address this ground given that the appeal must be allowed in any event. I also consider that the issue which it sought to raise was ultimately subsumed into a consideration of grounds 3 and 4 in any event. 2. SHOULD LEAVE BE GRANTED TO ADD THE NEW GROUND OF APPEAL? 6 Proposed Ground 5 of the Amended Notice of Appeal is formulated in the following terms: The trial judge erred as he should have found that the Tribunal erred in the exercise of its jurisdiction as it made its decision under s 108 of the [Migration] Act on the basis that misleading information was sufficient to ground a contravention of s 101 of the [Migration] Act. 7 The Minister opposed the grant of leave to amend, arguing that the proposed ground would raise a new issue which had not been advanced before the Federal Circuit Court. At the hearing, I heard argument on the question of leave, together with argument as to the substance of the proposed ground of appeal on the assumption that leave is granted, but reserved my decision on whether or not to grant leave. 8 The Minister drew the Court's attention to the principles applicable to the grant of leave in circumstances where a new issue is sought to be raised. These were recently summarised by Flick and Rangiah JJ in Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 (Sun), where leave was refused, as follows: 89 In the absence of reason to do so, a court will not allow an appellant to depart from the basis upon which a case has been conducted at first instance: Metwally v University of Wollongong (1985) 59 ALJR 481 at 483; Zheng v Cai [2009] HCA 52 at [16], (2009) 239 CLR 446 at 453; Vella v Minister for Immigration and Border Protection [2015] HCA 42 at [18], (2015) 326 ALR 391 at 395 per Gageler J. As a "general rule a party is bound by the conduct of his case": Park v Brothers [2005] HCA 73 at [34], (2005) 222 ALR 421 at 430. Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ there went on to observe that there are nevertheless "circumstances in which the interests of justice may lead an appellate court to permit a party to raise a point that was not taken at trial…" There is, moreover, a legitimate interest in public law matters being resolved in a timely and efficient manner: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62], (2001) 64 ALD 9 at 24 per Gyles J; SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [30] per Lander J. 90 But an appellate court retains a discretion to allow a new argument to be raised on appeal where it is expedient in the interests of the administration of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] per Kiefel, Weinberg and Stone JJ. 9 The Minister submitted that, in common with the situation in Sun, the appellant was represented in the Federal Circuit Court (as he was on this appeal) and that no explanation was given as to why the issue had not been raised below. Further, the Minister rightly emphasised that it must constantly be borne in mind that this Court is exercising appellate and not original jurisdiction, and that the appellate process will be undermined if the running of new arguments on appeal is too readily allowed (Sun at [92]). 10 In my view, the grant of leave is not strictly necessary. For reasons I later explain, the finding by the Tribunal that the answer of "divorced" was "at the very least misleading" formed an integral part of the Tribunal's reasoning which was already subject to challenge by the notice of appeal. In other words, it would have been artificial to have endeavoured to analyse the Tribunal's reasons by treating as a separate error the finding that the answer was at least misleading. 11 In any event, to the extent necessary I consider on balance that it is in the interests of justice to grant leave to amend the notice of appeal to raise the further ground. First, while the issue was not raised as such by the notice of appeal, it was addressed in the appellant's written submissions filed in advance of the hearing. Secondly, the issue does not require any further evidence but turns upon a construction of the Tribunal's reasons. Thirdly, the Minister has not pointed to any particular prejudice. Fourthly, contrary to the Minister's submissions, this is not a case like Sun where the proposed new argument lacks any self-evident merit and is merely an attempt to cavil with the merits of the Tribunal's decision (Sun at [92]). In the fifth place, I have had regard to the seriousness of the consequences for the appellant depending upon the result of the appeal, in terms of the cancellation of his visa. 12 Finally, I have given particular weight to the fact that underlying the issues on the appeal are difficulties created by the wording used in the online form as approved by the Minister (for reasons I later explain) and the fact that that form enables a non-citizen to choose only one option to describe her or his relationship status, together with the public importance of ensuring that the decision-makers approach questions as to the correctness of answers given to this and other online forms in a lawful manner. 13 In these circumstances, the appropriate and just course is to allow leave to raise the issue by an express ground even though ultimately I consider that this strand of the Tribunal's reasons would have had to be addressed in any event. 3. BACKGROUND 3.1 The visa application and the decision of the delegate to cancel the appellant's visa 14 The appellant is a citizen of Egypt who first arrived in Australia in March 2003 on a Subclass 300 prospective partner visa. The appellant married Ms B in Australia in May 2003 and was granted a Subclass 820 provisional partner visa in June 2003. 15 While still married to Ms B, the appellant returned to Egypt and married Ms H in Cairo in 2004. However, on 6 June 2006 he was granted a permanent partner visa in 2006 on the basis of his relationship with Ms B. On 8 November 2007, a divorce order was made by the (then) Federal Magistrates Court of Australia ending the marriage between the appellant and Ms B. The appellant remained in Egypt from June 2006 to June 2011. 16 On 15 November 2012, the appellant made an application online for the Resident Return visa. This is a visa renewal for a non-citizen who already holds a permanent visa. The criteria for the grant of a Resident Return visa are contained in Subclass 155, Schedule 2 to the Migration Regulations 1994 (the Migration Regulations). 17 The online application form for the Resident Return visa requests certain information from applicants under the heading "Visa Applicant Details". It also provides explanatory information about certain options of which the parties became aware only after the hearing of the appeal. As a consequence, on 26 August 2016 the parties agreed certain facts for the purposes of s 191 of the Evidence Act 1995 (Cth) about the contents of the online form as at the time that the online application was made (and when the facts were agreed on 26 August 2016). In the circumstances the notice of agreed facts should be received in evidence on the appeal under s 27 of the Federal Court of Australia Act (1976) (Cth). I note that the Minister did not oppose the tender by the appellant of the notice of agreed facts. 18 The application form provided first that: 19 Secondly, when the "relationship status" box was clicked, the form provided the following optional answers: 20 It was not in dispute that only one answer could be selected among the optional answers on the drop-down menu for relationship status, as the Tribunal found. 21 Thirdly, the parties agreed that, if the question mark beside the relationship status drop-down menu was selected, the following information appeared by way of a pop-up explanation of the optional answers to the question of relationship status ("relationship status pop-up explanation"): (I interpolate to note that there is a potential inconsistency between the instruction to "Give the following details as they appear in your passport" under the heading "Visa applicant details", on the one hand, and the relationship status pop-up explanation instructing the applicant to "Select the form that best describes your relationship status from the list provided", on the other hand, as the two may not correlate and the form does not explain what to do where they do not correlate. However, the assumption made by the Tribunal (and the delegate) was consistent with the relationship status pop-up explanation and no issue was raised by the appellant about the correctness of that assumption on this appeal.) 22 The appellant listed "divorced" as his "Relationship status" when completing the online form. The visa was granted on 3 December 2012. 23 On 8 August 2014, a delegate of the Minister wrote a letter to the appellant notifying him of the delegate's intention to consider cancellation of the visa on the basis that the appellant did not comply with ss 101 and 104 of the Migration Act (the notice). The particulars of possible non-compliance with s 104 of the Migration Act were as follows: On 14 May 2003 you applied for a partner visa, your sponsor for this application was [Ms B]…. Included in this application is a Departmental form 47SP "Application for migration to Australia by a partner"' dated 7 May 2003. Question 34 of this form asks: "Give details of ALL your family." The form provides a box for recording details of "All your children". No details are recorded in this box. On 10 February 2013, [Ms H]… applied for a partner visa. You are the sponsor for that application. In the application it is stated that you and Ms [H] married on 28 August 2004 and that her daughter… was born on 19 July 2005. A birth registration document supplied with the application records that you are the father…. … 24 The letter continued by stating the delegate's view that, there being no record of the appellant informing the Department of his change in circumstances (namely, the birth of his child), on the material presently before the delegate he considered that there was non-compliance with s 104 of the Migration Act. 25 The particulars of possible non-compliance with s 101 were as follows: On 15 November 2012 you applied for a Return (Residence) (Class BB) visa. In this application you stated that your relationship status is "divorced". I have attached a copy of this application to this notice and marked it as "attachment 1". Due to the information in paragraph 2 above I infer that that you were married to Ms [H] at the time you applied for your Return (Residence) (Class BB) visa and that your statement in this application about your relationship status is incorrect. … Based on the information in paragraph 5, on the information presently before me I consider that there has been non-compliance with section 101 of the [Migration] Act. 26 On 13 August 2014, the appellant replied to the notice. In response to the alleged non-compliance with s 101, the appellant relevantly stated that when he applied for the Resident Return visa in 2012 "my marital status was correctly described as divorced. My first and only marriage recognised by Australian law was to [Ms B] and that was terminated by divorce on 9 December 2007, although we remain very close friends". With respect to the failure to advise of the birth of his child contrary to s 104, the appellant stated that he was not aware that he was required to inform the Department of all changes in circumstances. 27 On 28 August 2014, a delegate of the Minister cancelled the appellant's visa pursuant to s 109 of the Migration Act on the basis that the appellant had not complied with ss 101 and 104. As to non-compliance with s 104, the delegate considered that the birth of the appellant's child was a change in circumstances that made his answer to his 2003 visa application incorrect in the new circumstances, and the failure to inform the Department of this change did not comply with s 104. 28 As to non-compliance with s 101, the delegate noted that the documents available to him were evidence that the appellant and Ms H were married in Egypt in 2005 and that their marriage was registered according to Egyptian law. The delegate considered that it could be inferred from the appellant's response to the notice that the appellant believed his marriage to Ms H was not a valid marriage under Australian law as he was married to Ms B at the time of the marriage. The delegate considered that this "interpretation of Australian law is apparently correct" by reference to the Marriage Act 1961 (Cth) (the Marriage Act) and, applying the definitions in that Act, found at [15]-[17] that the appellant was not married but that the appellant and Ms H were in a de facto relationship when he applied for the visa. The delegate concluded that: While the visa holder had divorced from his sponsor [Ms B] in 2007, his answer was disingenuous because it omits half the truth. The correct answer is that the visa holder was both divorced from his sponsor and living in a de facto relationship with Ms [H] at the time he applied for the visa. As the visa holder has only given half the truth in his answer to the question about his relationship status I consider that his answer is incorrect and that he has not complied with subsection 101(b) of the [Migration] Act. 29 I note, as the appellant submitted at the hearing, that on the approach adopted by the delegate, it would have been impossible for the appellant to give a correct answer using the online form. This is because the pull-down menu allowed him to choose only one answer whereas the delegate considered that a "correct" answer for the purposes of s 101 required him to select two answers – a point which highlights the potential inadequacy of the drop-down menu in this form. 3.2 The Tribunal's decision 30 On 24 February 2015, the Tribunal affirmed the delegate's decision to cancel the appellant's visa on review under s 109 of the Migration Act. 31 The appellant essentially conceded before the Tribunal that s 104 was not complied with because he did not advise the Department about the birth of his child (at [37]). Accordingly, the Tribunal found that there was non-compliance with s 104 of the Migration Act (at [38]). 32 The appellant's evidence before the Tribunal on the question of whether there had been non-compliance also with s 101 can relevantly be summarised as follows. (1) In his view, his marital status was divorced because "he was always aware that his marriage to Ms [H] was not recognised under Australian law because at the time he was married to Ms [B]". When he indicated that his relationship status was divorced on his visa application, he was referring to his divorce from Ms B (at [13], [30]). (2) He has never had a commitment to or been in a marriage-like relationship with Ms H as that marriage was forced upon him by his family for the purpose of bearing children. They did not live together on a permanent basis and have only lived together for short periods of time (at [14], [30]). (3) He now had four children with Ms H, the youngest being born in 2013. He wanted to sponsor his children to come to Australia because of the difficult circumstances in Egypt (at [14]). (4) Since 2013, he had been in a relationship with an Australian citizen, Ms F. He was based in Sydney while he was studying. She lived in Maitland (at [15]-[17]); 33 Ms F gave evidence that she had become engaged and married to the appellant in accordance with Islamic rites in April 2014, and that the appellant spent part of the week with her in Maitland and the balance of his time studying in Kingsford. 34 Ms B gave evidence that her relationship with the appellant was genuine at the time they were married. When the Tribunal noted that they had divorced shortly after the appellant obtained permanent residency, Ms B stated that the appellant needed to return to Egypt to care for his father and that the length of the absence resulted in their relationship breaking down. 35 The Tribunal noted that it had "very serious concerns" about the appellant's credibility when it came to evidence concerning his relationship with Ms H. The Tribunal found that there were various examples of him "providing flexible evidence about his circumstances", and that it could not accept the appellant's explanations at face value (at [31]). 36 The Tribunal found (at [32]) that at the time he applied for the visa in 2012, the appellant was legally married under Egyptian law to Ms H (his second wife), and at that point they had a mutually exclusive relationship. The Tribunal further found that it was not clear how the appellant would have known then that his marriage to Ms H would not have been recognised under Australian law, and noted that he had long-since divorced his first wife, Ms B. 37 The Tribunal continued at [33]-[35] of its reasons: At any rate, the response in the resident return visa application simply requires that an applicant choose between a number of categories. As noted in the submission categories of "de facto" and "married" are included in the options. The tribunal notes a submission that "it is accepted that the applicant's marriage to Ms [H] is not valid under Australian law. Accordingly, the option of 'married' would have been correct [sic]". Any decision as to the validity of a foreign marriage under the Marriage Act is an administrative decision. Whether or not a decision maker may have subsequently deemed the Egyptian marriage to be not valid for immigration purposes is not the point. Nevertheless, at face value, it would appear that the department may well have decided that the marriage to Ms [H] was not valid for purposes of the Marriage Act when processing her partner visa application. This of course assumes that Mr Salama's marriage to Ms [B] was also valid under the Marriage Act. As noted in the s.359A letter, there is a suggestion that Mr Salama had been previously married in Egypt. At any rate, the questions in the resident return visa application do not require the applicant to make an assessment as to whether their relationship would make [sic] satisfy various migration regulations. The visa application simply asks the person to nominate their relationship status as they see it. In the tribunal's view Mr Salama provided information on the resident return visa application that was at the very least misleading. The tribunal notes the submission that the visa application does not allow a person to select more than one category when it comes to relationship status. The submission provided: "there are occasions in which there may be more than one correct response to a question, and in these situations, the reasonable person can only be expected to select the most appropriate response." It is true that in a lifetime a person can have a number of relationship statuses. A divorced person may subsequently enter into a de facto relationship and technically claim that they are still divorced because they are not yet legally remarried. In the tribunal's view, the context of the visa application is to declare the relationship status as at the time of the visa application. In this case the tribunal is of the view that Mr Salama did not declare his correct relationship status as at the time of the resident return visa application in 2012. Accordingly, the tribunal considers that s.101 was not complied with. (emphasis added). 38 The Tribunal further found at [42]: The correct information at the time of the resident return visa application is that Mr Salama was legally married under Egyptian law to Ms [H] and at that stage they had three children. 39 Accordingly, the Tribunal decided there was non-compliance by the appellant also with s 101 of the Act. The Tribunal then affirmed the decision to cancel the appellant's visa in the exercise of discretion having regard among other things to the circumstances of non-compliance with ss 101 and 104. 3.3 The decision of the Federal Circuit Court 40 On 18 March 2016, the Federal Circuit Court dismissed the appellant's application for judicial review of the Tribunal's decision. The appellant relevantly argued before the Court below that the Tribunal erred in finding that the appellant was married because his marriage to his Egyptian wife was not recognised for the purposes of the Migration Act. 41 The Federal Circuit Court rejected the appellant's argument, holding that it "fails at its basic premise" (at [26]). The primary judge continued at [26]: …The application form did not ask whether the applicant was in a "married relationship" or not. It asked his "relationship status". That is not a question determined by strict legal definitions but by practical reality. On the findings of the Tribunal, the applicant's relationship status was not "divorced". It was, and had been for many years, "married". To suggest that a person, once divorced, can correctly describe his or her relationship status as "divorced" regardless of what other relationship(s) he or she might then be in may be clever, but it is wrong. This ground is rejected. (emphasis added) 4. STATUTORY FRAMEWORK 4.1 Status of the online application form under the Migration Act 42 Section 45 of the Migration Act provides that subject to the Migration Act and Migration Regulations, a non-citizen must apply for a visa of a particular class. Section 46 relevantly provides that the regulations may prescribe criteria that must be satisfied for a visa application of a specified class to be a valid application, including how the application must be made (ss 46(3) and (4)). 43 Regulation 1.18(1) of the Migration Regulations provided at the time when the appellant applied for the Resident Return visa (15 November 2012) that the Minister may in writing approve forms for "use in making an application for a visa". Regulation 1.18(2) provided that an approved form for use in making an application for a visa includes (relevantly): (b) a set of questions in an interactive computer program that is: (i) approved by the Minister for use in making an application for the visa; and (ii) made available at an Internet site operated under the authority of the Minister; 44 Regulation 2.07 of the Migration Regulations prescribes the approved form to be completed by an applicant for a particular class of visa and requires an applicant to complete that form. Specifically, reg 2.07 provided at the relevant time that: (1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1: (a) the approved form (if any) to be completed by an applicant; (b) the visa application charge (if any) payable in relation to an application; (c) other matters relating to the application. … (3) An applicant must complete an approved form in accordance with any directions on it. 45 Item 1128(1) of Schedule 1 of the Migration Regulations in turn provided that the approved form at the relevant time with respect to the class of visa for which the appellant applied was as follows: Item 1128 Return (Residence) (Class BB) (1) Form: (a) if the application is an Internet application: 1085E (b) in any other case: 1085 (unless the application is in accordance with subparagraph (3)(a)(iii), in which case no form is required). 46 An Internet application is defined in reg 1.03 to mean "an application for a visa made using a form mentioned in paragraph 1.18(2) (b) that is sent to Immigration by electronic transmission using a facility made available at an Internet site mentioned in subparagraph 1.18(2)(b)(ii), in a way authorised by that facility." 4.2 Statutory discretion to cancel a visa under s 109 of the Migration Act 47 Section 101 is located in Subdiv C, Div 3, Part 2 of the Migration Act (ss 97-115) which deals with the cancellation of visas based on incorrect information. 48 As at the time of the Tribunal's decision, s 101 provided that: A non-citizen must fill in or complete his or her application form in such a way that: (a) all questions on it are answered; and (b) no incorrect answers are given or provided. 49 An application form is defined in s 97 for the purposes of Subdiv C as follows: "application form, in relation to a non-citizen, means a form on which a non-citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application." It was not in issue that the application form for the Resident Return visa completed by the appellant was an application form as defined by s 97 and the Migration Regulations. 50 Section 100 in turn provides that: For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect. 51 Thus, as Gray J held in Sandoval v Minister for Immigration and Multicultural Affairs [2001] FCA 1237; (2001) 194 ALR 71 (Sandoval) at 83-84 [38], "the current provisions refer simply to "incorrect" answers, and are accompanied by provisions making it clear that there is no requirement of a mental element (such as an intention to mislead or deceive)…". 52 Section 104(1) of the Migration Act imposes a further obligation upon the non-citizen. It provides that, if circumstances change such that an answer to a question on the non-citizen's application form or answer is incorrect in the new circumstances, the non-citizen must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer. 53 Section 107 relevantly provides that if the Minister considers that a visa holder did not comply with s 101 or s 104, the Minister may give the visa holder notice of his intention to consider cancelling the visa, and give the visa holder an opportunity to respond. Under s 108, the Minister must consider any response given by a visa holder to the notice and decide whether there has been non-compliance by the visa holder in the way described in the notice. Only if the Minister decides under s 108 that there has been non-compliance by the holder of the visa is the Minister's discretion under s 109 to cancel the visa enlivened. Thus s 109 provides that: (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. 54 Plainly in exercising the discretion conferred by s 109, the Minister may (and arguably must) have regard to the circumstances of the non-compliance, as did the Minister's delegate and the Tribunal on review in the appellant's case. 5. CONSIDERATION 55 It was not in issue that the task for the Tribunal in the first instance was to decide under s 108 of the Migration Act whether it was satisfied that the appellant had failed to comply with the obligations imposed upon him by s 101 and/or s 104 of the Migration Act in the way specified in the notice: SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 303; (2003) 134 FCR 43 at 48 [21]. Thus s 109(1)(a) relevantly provides that it is a jurisdictional precondition to the exercise of the discretion to cancel a visa that the Minister (and therefore the Tribunal on review) has decided under s 108 that there was non-compliance by the visa holder with (relevantly) ss 101 or 104. It follows that, while not expressed in terms of the Minister having reached a state of satisfaction that is the effect of the jurisdictional precondition. As a result, it is not for this Court to decide whether objectively speaking the answer given by the appellant was correct; that task was relevantly for the Tribunal alone. Equally it was not in issue that in order to determine whether there had been a failure to comply with s 101, the state of mind of the appellant in answering the question was irrelevant: see above at [51]. 56 The Minister submitted that the Tribunal correctly approached the issue of whether the appellant had given an "incorrect answer" within s 101 to the question of his relationship status. First, the Minister submitted that: The issue for the Tribunal was simply whether the Appellant had given an "incorrect answer" within s 101 to the question of his "relationship status", not to a question seeking an opinion as to the application of the Marriage Act 1961 to an Egyptian marriage or to whether the Appellant was the "spouse" of another person within the definition in s 5F of the [Migration] Act. 57 As such, the Minister submitted that the primary judge correctly held that the appellant's relationship status was not determined by strict legal definitions but by practical reality. That being so, the Minister submitted that it was open for the Tribunal to find on the facts that the appellant's answer of "divorced" was an "incorrect answer" within s 101 because the appellant was at that time married to Ms H. The Minister submitted that that question was a matter of fact and that an error in fact finding did not give rise to an error of law or jurisdictional error. 58 Secondly, the Minister submitted that the Tribunal ultimately addressed the question required by s 101, namely, whether a given answer was correct notwithstanding a passing reference to the answer "divorced" as "at the very least misleading". That reference was said to be an isolated reference and, read fairly and in context, it was said to be apparent that the Tribunal applied the correct test. 59 In my view, however, the Tribunal fell into jurisdictional error in misconstruing its statutory task. 60 First, I accept the appellant's submission that as a matter of interpretation of the online application form, the answer "married" refers to a marriage that is "legally recognised" as is expressly stated in the pop-up relationship status explanation. The fact that the Tribunal did not refer to the pop-up explanation in its reasons (as the Minister pointed out) is irrelevant to the construction of the form. That explanation forms part of the online form approved by the Minister in accordance with the Migration Regulations for the purposes of ss 45 and 46 of the Act. I also accept the appellant's submission that, read in context, the reference to "married" is to a marriage that is legally recognised under Australian law. This intention is put beyond doubt in my view by the asterixed notation in the relationship status pop-up explanation to the explanations for "De facto" and "married" that "Same-sex partners legally married overseas are not recognised as being in a valid marriage by the Marriage Act 1961 and therefore can only be recognised as being de facto partners" (emphasis added). 61 I also note that this construction is consistent with the definition of a person as a "spouse" in s 5F of the Migration Act. In this regard, a "spouse" is defined as a person in a "married relationship" being (relevantly) a marriage which is valid for the purposes of the Migration Act. Section 12 of the Migration Act in turn provides that "For the purpose of deciding whether a marriage is to be recognised as valid for the purposes of this Act, Part VA of the Marriage Act 1961 applies as if section 88E of that Act were omitted". Section 88D of Part VA of the Marriage Act relevantly provides for the recognition of marriages as valid in Australia while also providing that certain marriages are not recognised as valid. The latter include where either party was, at the time of the marriage, a party to a marriage with another person which was recognised in Australia as valid. 62 It follows that the Tribunal erred in finding that "[t]he visa application simply asks the person to nominate their relationship status as they see it" (emphasis added) and, as an aspect of that, that any decision as to the validity of a foreign marriage under the Marriage Act is an "administrative decision". To the contrary, the form itself requires an applicant who is married under the law of a foreign State to reach a view as to whether or not their marriage is recognised under the Marriage Act. Equally, it follows that the Federal Circuit Court fell into error in holding at [26] that, in asking about the appellant's "relationship status", the question of whether he was married was not determined "by strict legal definitions but by practical reality". In so finding, I do not suggest that this means that an applicant must answer that she or he is married if the applicant is, for example, "separated" as defined in the relationship status pop-up explanation. 63 Secondly, the appellant also correctly submits that the Tribunal fell into error in approaching the task of determining whether the appellant had contravened s 101 by assuming that there was only one correct answer, making a finding in effect as to what was the most correct answer. It is this approach which explains why the Tribunal rejected the answer "divorced" as "at the very least misleading". That step in the Tribunal's reasoning cannot be dismissed on the basis that ultimately the Tribunal applied the right test in asking whether the answer was correct, as the Minister submitted. The introduction of the concept of "misleading" provided the Tribunal in effect with an additional criterion by which to choose the most correct answer. That the Tribunal was seeking the most correct answer is also consistent with the observation at [35] that a person may "technically claim" that they are "still" divorced when a divorced person is in a de facto relationship because they are not yet legally married. However, the obligation upon a non-citizen under s 101 is to complete the application form in such a way that "no incorrect answers are given or provided". Accordingly, the question which the Tribunal must ask under s 108 is simply whether "incorrect answers" have been given in contravention of s 101. It follows that, unless the Tribunal found here that the answer "divorced" was "incorrect", the discretion to cancel was not engaged. Yet no such finding was made by the Tribunal. In this regard, the finding at [35] that the appellant "did not declare his correct relationship status" cannot be read as a finding that the appellant's answer was "incorrect" in circumstances where the Tribunal assessed the correctness of the response by reference to whether the response was "misleading" or, inferentially, only 'technically' correct. 64 That such findings do not suffice to establish non-compliance with s 101 is confirmed by the legislative history of s 101. That provision was inserted into the Migration Act by the Migration Reform Act 1992 (Cth) (as amended by the Migration Amendment (Border Integrity) Act 2007 (Cth) which inserted the words "or complete" into the chapeau to s101 and the words "or provided" in s 101(b)). Before the enactment of s 101, the Migration Act provided that non-citizens who had entered Australia may become illegal entrants in circumstances where the visa holder had given "a statement that was false or misleading in a material particular": see s 20(1)(c)(ii) of the Migration Act as at 31 December 1989; see also the Explanatory Memorandum to the Migration Reform Bill 1992, pp.6-7 and 30-33. As Gray J considered in Sandoval at 86 [46], the legislature's abandonment of the term "misleading" in favour of "incorrect" suggests that "whether an answer passes the test of s 101(b) is to be assessed on what is in, rather than what is omitted from, the answer." 65 In fairness, it should also be said that the online form creates difficulties of application which may explain why the Tribunal fell into error. Specifically, there is a tension between the instruction to "Select the term that best describes your relationship status from the list provided", on the one hand, and an assessment of whether an incorrect answer has been selected for the purposes of s 101, on the other hand (emphasis added). This is because the use of the word "best" suggests that an evaluative exercise may need to be undertaken in order to ascertain the best answer, whereas no such evaluative exercise is required in order to determine whether an answer is incorrect. The latter turns purely upon the findings of fact made by the decision-maker. It follows that a decision-maker may consider that an applicant has not selected the "best" description of her or his relationship status in line with the instructions, but nonetheless has not given an incorrect answer in contravention of s 101 of the Migration Act. 66 Finally, while the discretion to cancel the visa was enlivened in any event by reason of the separate finding that the appellant had failed to comply with s 104 of the Migration Act, nonetheless the circumstances of non-compliance with s 101 were taken into account by the Tribunal in determining whether as a matter of discretion the appellant's visa should be cancelled. In those circumstances, it cannot be said that the validity of the Tribunal's decision is sustained on a separate and independent ground from that infected by jurisdictional error; nor that, if the Tribunal had properly addressed its statutory task, it would necessarily have made the same decision in the exercise of discretion. 6. CONCLUSION 67 It follows that the Court below should have held that the Tribunal's decision was invalid by reason of jurisdictional error. Accordingly, the appeal must be allowed and the matter remitted to the Tribunal for determination according to law. 68 At the hearing the Minister submitted that if the appeal succeeded on a ground not argued before the primary judge, the appropriate order would be that there be no order as to costs before the primary judge. The appellant submitted that in that event he wished to be heard on the question of costs. However, the appellant has succeeded on grounds that were the subject of argument in the Court below. Accordingly, costs should follow the event and the Minister should pay the costs of the appellant in the Federal Circuit Court and on the appeal as agreed or assessed. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate: Dated: 9 January 2017