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Cases

ADMINISTRATIVE LAW – natural justice – where primary judge exercised discretion on basis of a finding of lack of candour of the first appellant – whether appellant put on notice as to possibility of that adverse finding – whether denial of procedural fairness

IMMIGRATION – jurisdictional error – s 128 Migration Act 1958 (Cth) –visa cancelled without prior notice to visa holder – notice under s 129 – whether information in notice under s 129 sufficient to justify cancellation – whether delegate failed to ask whether it was appropriate to cancel the visa under s 129.

Hu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] F

Hu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 63 (26 March 2004)
Last Updated: 30 March 2004

FEDERAL COURT OF AUSTRALIA


Hu v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 63


ADMINISTRATIVE LAW – natural justice – where primary judge exercised discretion on basis of a finding of lack of candour of the first appellant – whether appellant put on notice as to possibility of that adverse finding – whether denial of procedural fairness

IMMIGRATION – jurisdictional error – s 128 Migration Act 1958 (Cth) –visa cancelled without prior notice to visa holder – notice under s 129 – whether information in notice under s 129 sufficient to justify cancellation – whether delegate failed to ask whether it was appropriate to cancel the visa under s 129.


Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 116, s 128, s 129, s 131, s 132, s 133, s 140
Migration Regulations 1994 (Cth) cl 457.111, cl 457.221, cl 457.223

Annetts v McCann (1990) 170 CLR 596 cited
BP Australia Ltd v Brown (2003) 46 ACSR 677 cited
Browne v Dunn (1893) 6 R 67 cited
Butler v Fairclough (1917) 23 CLR 78 cited
Cameron v Cole (1944) 68 CLR 571 cited
Doukmak v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 432 cited
Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 cited
Wicks v Bennett (1921) 30 CLR 80 cited

M Aronson and B Dyer, Judicial Review of Administrative Action (2nd ed, 2000)
Cross on Evidence (6th Aust ed, 2000)

ZHAO LIN HU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1506 of 2003

HILL, SACKVILLE & MARSHALL JJ
SYDNEY
26 MARCH 2004


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1506 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE COURT


BETWEEN: ZHAO LIN HU
FIRST APPELLANT

JIAXIN HU
SECOND APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: HILL, SACKVILLE AND MARSHALL JJ
DATE OF ORDER: 26 MARCH 2004
WHERE MADE: SYDNEY


THE COURT ORDERS THAT:


1. The appeal be dismissed.
2. The Appellants pay the Respondent’s costs of the appeal.
3. That there be no order as to the costs of the proceedings at first instance.










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 N1506 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE COURT


BETWEEN: ZHAO LIN HU
FIRST APPELLANT

JIAXIN HU
SECOND APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: HILL, SACKVILLE AND MARSHALL JJ
DATE: 26 MARCH 2004
PLACE: SYDNEY


REASONS FOR JUDGMENT


HILL and MARSHALL JJ:

1 We have had the opportunity of reading in draft form the reasons of Sackville J. His Honour sets out the relevant facts, the background to the appeal and summarises the reasons of the learned Primary Judge. Other than as here set out, we are content to adopt his Honour’s statement of these matters and indeed his conclusions. However, we have the misfortune of disagreeing with his Honour’s reasons so far as they deal with what his Honour refers to as "The ‘Offshore’ argument".

2 It was, as his Honour notes, submitted that the delegate of the Respondent, the Minister for Immigration and Multicultural Affairs ("the Minister") which expression we hereafter use so as to comprehend the delegate, took into account an irrelevant consideration, namely that the first appellant, Mr Hu, was outside Australia, in deciding whether to follow the procedure set out in Subdiv F as a precondition to cancelling the visa which had been granted to Mr Hu. An alternative way the submission may be put is that the Minister’s discretion miscarried in that he failed to consider properly the question whether it was appropriate to cancel Mr Hu’s visa without notice to him under Subdiv F as against cancellation with notice under Subdiv E. The consequence of that submission succeeding would be that the Minister had made a jurisdictional error in deciding to cancel the visa without prior notice and that the actual cancellation which followed would likewise be infected with error and would necessarily be set aside but subject to discretionary considerations.

3 Sackville J, with respect, correctly analyses s 128. That section clearly requires, as a precondition to cancellation of a visa without notice, that the Minister be satisfied of two matters. The first is whether there is a ground for cancellation under s 116. The second is whether it is "appropriate to cancel" the visa in accordance with Subdiv F. However, the power under the section may not be exercised unless, in addition, the non-citizen who is the holder of the visa is outside Australia. The latter matter is a matter of fact, not a matter for the exercise of discretion. It was common ground that Mr Hu was outside Australia at the time of cancellation. It was also common ground that even if these three matters were satisfied there was a discretion (his Honour refers to it as a "residual discretion") in the Minister to decide whether or not the visa should be cancelled. In other words, the Minister must consider whether the circumstances of the case are such that the visa should be cancelled. There is a question, whether this "residual" discretion is concerned only with whether the visa should be cancelled, or whether it is concerned both with whether the visa should be cancelled and whether that cancellation should be without notice. This is a matter to which we will shortly return.

4 Where the Minister acts under s 128 to cancel the visa the Minister is obliged to give the former holder of the visa a notice stating the grounds on which the visa was cancelled and giving particulars of the ground and of the information (other than non-disclosable information) because of which the ground was considered to exist.

5 The submission that the Minister’s decision under s 128 involved jurisdictional error depended, as his Honour correctly also pointed out, upon whether the inference should be drawn from the Notice forwarded to Mr Hu under s 129 that the Minister took into account as relevant to whether the visa should be cancelled (or should be cancelled without notice) the fact that Mr Hu was outside Australia at the time the question was under consideration and failed to take into account all relevant circumstances. It is necessary, therefore, to consider what the notice said.

6 The Notice is itself headed "Notification of Cancellation under section 128 of the Migration Act 1958". In small print there follow the words, "For use where the visa holder is outside Australia&qu;
ot;. The notice then advises the visa holder that the visa was cancelled "on the grounds at" s 116(1)(a), namely, that the circumstances which permitted the grant of the visa no longer existed. It was common ground that such a ground could be made out. The document then attached, as Part B, is a copy of the "decision record". The first nine items in Part B which are to be completed set out personal details of the visa holder. The tenth matter is headed "Possible grounds for cancellation". The decision maker is to tick the appropriate box and complete the details. Correctly here, the box s 116(1) has been ticked and the blank space after it completed with a reference to paragraph "a".

7 Item 11 is headed "Evidence of and reasons why grounds for cancellation exist". In the space accompanying this item the decision maker has written: "Visa granted as IE to manage daily operation of business in Aust. Intended business not purchased. Visa holder has spent 63 days in past 2 yrs in Aust."

8 Item 12 is headed "Assessment". It requires a relevant box to be ticked. The boxes give the choice for the decision maker to conclude that there are no grounds for cancellation under s 116 or, alternatively, to record that he or she considers that there are grounds for cancellation and if so, the relevant paragraph. Here, the second alternative has been chosen and paragraph 116(1)(a) written in.

9 The item then continues (not as a separate item, but still thus under the heading "assessment&quo;
t;) by asking the decision maker to "Give reasons." Here the decision maker has written: "Visa holder provided info he had paid deposit on business. He did not buy the said business. He has not managed daily affairs of a business in Aust."

10 The item further continues (still under the heading "Assessment") "Reason why it is considered appropriate to cancel without notice under s 128". Here the decision maker has written, "Applicant is offshore."

11 Item 13 is then headed: "Decision". It reads: "in view of the findings and assessment above, we have decided to" – there are then two choices given with a request that the decision maker tick the relevant box. The first is "cancel"
; and the second is &
quot;Not cancel" the visa. It is the first alternative that the decision maker adopted in the present case. This strongly suggests that the material which precedes Item 13 forms the underlying basis of the decision to cancel the visa.

12 Sackville J in his reasons points out that the Form or at least that part of it in which the decision maker has written "Applicant is offshore" followed closely the language of s 128(a)(ii) and that the decision maker had, under the last part of item 12, recorded his reasons for forming the view that it was appropriate to cancel Mr Hu’s visa under s 128, that is to say without the giving of notice. So, his Honour says, this suggests that the decision maker regarded it as a sufficient reason for invoking the procedure under s 128 to cancel without notice, that Mr Hu was outside Australia when that matter was a jurisdictional fact upon which the exercise of discretion depended, or, in other words, a prerequisite to deciding whether to exercise the discretion to cancel the visa without notice. This led his Honour to conclude that the delegate did not turn his mind to the question whether the circumstances of the case made it appropriate to cancel Mr Hu’s visa without notice in accordance with subdivision F, rather than follow the procedure laid down in Subdiv E where notice was required prior to cancellation. It may be noted that it was relevant to his Honour’s conclusion that while it was conceivable that the decision maker did consider whether the circumstances of the case made it appropriate to cancel Mr Hu’s visa under s 128 there was no evidence to that effect.

13 We do not think it is safe to draw the inference that the delegate did not turn his mind to the question he was required to consider solely upon the basis of the way the particular form was completed. First it must be said that the form does not follow the structure of the section in the way that might be expected. Secondly, it must be said that there would be difficulty in completing the form in a way that would record properly the relevant matters.

14 If the form was properly to follow what s 128 read together with s 129 requires (and there is much to be said for restructuring the form to make it do so) it would be set out somewhat differently. What s 129 requires is that the former visa holder must be advised of the ground upon which the visa was cancelled. That is a reference to the particular ground under s 116 of which the decision maker is satisfied. The former visa holder must also be given particulars of that ground and the information because of which the ground was considered to exist. That covers the matter at items 10 and 11 of the form, although in some cases better particulars might be required to be noted. That is not in the present case a matter of complaint. Nothing else is required by s 129 and there is no requirement that there be set out at all any checklist of the requirements of s 128. If such a checklist was necessary it would need four items to be completed.

15 First the decision maker would be asked to indicate whether he or she was satisfied that there was a ground for cancelling the visa under s 116. That is perhaps item 12. Secondly the decision maker would be required to indicate whether he or she considered it appropriate to cancel the visa in accordance with Subdiv F, that is to say without notice to the visa holder. There is no requirement that reasons be given. The form as presently structured does not even ask the decision maker to indicate whether he or she does consider it appropriate to cancel the visa without notice. Indeed, it assumes that it is and asks why it is considered appropriate to cancel without notice. Thirdly the decision maker should be required to note that the non-citizen is outside Australia. No provision is made on the form for this question. The mere fact that the form is one said to be "under section 128" and "for use where the visa holder is outside Australia" may, perhaps, make the question irrelevant since, presumably, the form should not be used if the visa holder is present in Australia at the time of cancellation. On the other hand it would be safer, if the form is to be a record of the matters required to be considered (discretionary or otherwise) under s 128, to include a notation that the non-citizen is outside Australia. Finally, the form would need to ask the decision maker whether, having regard to all the circumstances he or she is of the view that the visa should be cancelled.

16 So far as this last matter is concerned we think that the so-called "residual discretion" is not one which asks the decision maker to exercise a discretion whether the visa should be cancelled under s 128, that is to say without notice. That matter is dealt with in subparagraph (a)(ii). Rather the residual discretion is directed at whether the visa should be cancelled notwithstanding that the other matters in s 128 have been considered and found adversely to the visa holder. That there is a ground for cancellation is a matter to which the decision maker has already directed attention under subparagraph (a)(i). But until the residual discretion has been reached, the question whether, the ground under s 116 existing, the power of cancellation should be exercised has not been addressed.

17 In the way the form is presently structured it is hardly surprising that a decision maker would wish to record somewhere the presence outside Australia of the visa holder. This is perhaps what the decision maker did in filling in the answer to the last matter before Item 13 on the form. Be that as it may, the fact that the visa holder is "offshore" is not necessarily an irrelevant consideration to be taken into account when the decision maker comes to address whether it would be appropriate to cancel the visa without notice, even although it is separately an independent matter which must exist as a prerequisite to exercise of the power of cancellation under s 128. For example, a delegate might conclude that the visa holder here, if he returned to Australia might well be able to alter documentation illustrating the degree of involvement of the visa holder in the business or even arrange for others in this country to give false evidence about that involvement. That would be obviously a reason for the cancellation to take place immediately and without notice, because cancellation would potentially put to an end the possibility of the visa holder re-entering Australia. In another case, for example such as Doukmak v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 432 the visa holder might be a threat to national security such that it would be in the public interest that cancellation be immediate without the visa holder having the opportunity of returning to Australia. Other possibilities may be imagined.

18 Further, the whole of what is set out in items 10 to 12 of the form is stated to be the basis of the decision to cancel (the residual discretion) as is made clear by the wording of item 13 "In view of the findings and assessment above, I have decided to": Yet, it is difficult to see that item 12 ("assessment") constitutes what it is said to be, namely, the assessment on the basis of which the residual discretion to cancel has been exercised. The problems which the form presents make, in my opinion, the drawing of an inference from the answer &q;
uot;Applicant is offshore" and the question to which it is said to be an answer both difficult and dangerous. We certainly would not on such a foundation conclude either that this answer was a record of the sole matter considered by the Minister under sub-paragraph (a)(ii) or conclude that this answer was intended to be a record of the sole matter considered by the Minister in the exercise of the residual discretion.

19 The onus lies on Mr Hu to show that the delegate took into account an irrelevant consideration or otherwise failed, in exercising either the discretion in subparagraph (a)(ii) or the residual discretion to take into account the circumstances of the case other than the presence overseas of Mr Hu. No doubt, if the inference is open from the way the form has been answered that he did, then the failure on the part of the delegate to give evidence would enable that inference to be more comfortably drawn: Jones v Dunkell (1959) 101 CLR 298. However, that failure does not itself enable the inference to be drawn that the delegate’s discretion miscarried.

20 It follows that we are of the view that Mr Hu has not made out jurisdictional error on the part of the delegate. Accordingly, although we agree with Sackville J that the discretion of the learned Primary Judge miscarried and for the reasons his Honour has given, it has not been shown that either or both of the cancellation decisions of 27 January 2003 and the non revocation decision of 9 April 2003 were affected by jurisdictional error with the consequence that the appeal should be dismissed. We would order that the appellant pay the respondent’s costs of the appeal but in the circumstances make no order as to the costs of the proceedings at first instance.





I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill & Marshall.



Associate:

Dated: 26 March 2004



Counsel for the Applicant: Richard Lancaster



Solicitor for the Applicant: Parish Patience Immigration



Counsel for the Respondent: G T Johnson



Solicitor for the Respondent: Blake Dawson Waldron



Date of Hearing: 12 February 2004



Date of Judgment: 26 March 2004







IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1506 OF 2003


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: ZHAO LIN HU
FIRST APPELLANT

JIAXIN HU
SECOND APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: HILL, SACKVILLE AND MARSHALL JJ
DATE: 26 MARCH 2004
PLACE: SYDNEY


REASONS FOR JUDGMENT

SACKVILLE J

INTRODUCTION

21 The appellants have appealed from a judgment of a single judge of the Court, which refused their application for judicial review of two decisions of delegates of the respondent Minister. Both appellants are citizens of the People’s Republic of China ("PRC"). The second appellant is the daughter of the first appellant.

22 The first decision, made on 27 January 2003, was to cancel the first appellant’s Business (Long Stay) visa. This decision was made pursuant to s 128 of the Migration Act 1958 (Cth) ("the Act"). The second decision was to refuse the first appellant’s request that the Minister revoke the cancellation. The second decision was made pursuant to s 131 of the Act. At the time each decision was made, the first appellant was in the PRC and the second appellant was undertaking studies in Australia. The second applicant had then just turned 17.

23 The primary Judge dismissed the application on discretionary grounds. His Honour considered that the first appellant had acted with a "lack of candour" in failing to notify the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA") that he had abandoned his proposal to establish a battery assembly business in Australia. It was on the basis of that proposal that the first appellant had been granted a visa.

FACTUAL BACKGROUND

24 On 28 June 2000, the first appellant applied for an "independent executives" visa ("the visa") within subclass 457 Business (Long Stay), contained in Sch 2 to the Migration Regulations 1994 ("the Regulations&quo;
t;) made pursuant to the Act.

25 Clause 457.221(1) of the Regulations required the applicant to meet, at the time of the decision, the requirements of any one of a number of sub-clauses. One of these sub-clauses was cl 457.221(7), headed "Independent executives". It relevantly provided as follows:

"The applicant meets the requirements of this subclause if the Minister is satisfied that:

(a) the applicant proposes to develop in Australia a business activity that will be:
(i) conducted by the applicant as a principal; and
(ii) of benefit to Australia; and
(b) the applicant has a genuine and realistic commitment:
(i) to maintain or obtain an ownership interest in a business in Australia; and
(ii) to maintain a direct and continuous involvement in the management of the business; and
(iii) to make decisions that affect the overall direction and performance of the business from day to day;

...".

26 In his application for a visa, the first appellant said that he proposed to set up a factory in Sydney, at a named location, to assemble car batteries. He planned to conduct the enterprise through a wholly owned Australian company and to employ four local staff. The application outlined research undertaken by the first appellant relating to the proposed business and gave details as to how the proposed business activity would benefit Australia. The first appellant’s management role in the proposed business activity was said to comprise the following:

"Plan to target production.
Control finance in the cost of production of batteries.
Research into the battery industry in Australia and elsewhere.
Maintain quality management of quality of products.
Train staff for performance.
Supervise performance of employees.
Respond to consumers’ needs.
Achieve cost effectiveness.
Review management of business.
Improvement of brand name and brand products."
27 On 20 September 2000, the first appellant was interviewed by an officer of DIMIA to assess his business proposal. Apparently in consequence of this interview, the first appellant’s agent wrote to the visa section of the Australian Consulate-General in Guangzhou on 15 November 2000. The letter recorded the first appellant’s intention to travel to Australia later in the year "in order to establish the company, [and] select and decide the location of the factory". The letter stated that the first appellant was "committed to his business activities in Australia".

28 In a letter dated 8 January 2001, the agent reported to the visa section of the Consulate-General that the first appellant had registered a company in Australia and had paid the "security deposit" for the purchase of a factory of 300 square metres. A letter of 2 February 2001 informed the visa section that the first appellant had to arrive in Australia before 28 February 2001 in order to complete the purchase of the factory. He would then stay in Australia for a "long period of time as planned in order that he could start and manage his battery business".

29 On 21 February 2001, the first appellant was advised that his application was successful and that his visa was valid until 20 February 2005, during which time the first appellant was entitled to temporary residence in Australia.

30 The effect of cl 457.321 of Sch 2 to the Regulations was that the second appellant, as a member of the family unit of the first appellant, became entitled to a temporary visa, subject to meeting certain criteria specified in cl 457.322. It appears that the second appellant was granted a visa pursuant to those provisions, although we were not informed of the precise period for which her visa was valid.

31 On 16 January 2003, the first appellant completed a form, which was submitted to the Australian visa office in Guangzhou, seeking a replacement visa, presumably because he had acquired another passport. Whether prompted by this request or for other reasons, an officer conducted an interview with the first appellant, apparently in Guangzhou, on 23 January 2003. In the course of this interview, the first appellant acknowledged that he had not established a battery business in Australia and had not purchased a factory. He had instead acquired a shop to sell books, newspapers and magazines. He was unable to identify the address of the shop, but said it was in a big shopping centre.

32 On 27 January 2003, the Minister’s delegate decided to cancel the first appellant’s visa. The delegate completed Form 1144, which is headed as follows:

"Notification of Cancellation
under section 128 of the Migration Act 1958
(For use where the visa holder is outside Australia)".

Form 1144 is a printed form, with provision for boxes to be completed by hand. A copy of the duly completed Form 1144 was given to the first appellant on 28 January 2003.

33 The completed Form 1144 advised the first appellant that his visa had been cancelled on 27 January 2003 under s 128 of the Act, on the ground provided for in s 116(1)(a) of the Act. Within a box providing for "particulars of the ground and of the information/evidence because of which the ground was considered to exist", the delegate wrote:

"any circumstances [which] permitted the grant of the visa no longer exist".

This notation repeats the language of s 116(1)(a) of the Act.

34 Part B of Form 1144 provides for a "Record of Decision Whether to Cancel Visa". Item 10 of the completed Form 1144 identifies s 116(1)(a) of the Act as the "Possible ground[...] for cancellation".

35 Item 11 provides a box in which to set out "Evidence of and reasons why grounds for cancellation exist". Within the box the following is written:

"Visa granted as IE [Independent Executive] to manage daily operations of business in Aust[ralia]. Intended business not purchased. Visa holder has spent 63 days in past 2 [years] in Aust[ralia]."

36 The delegate, under the heading "Assessment" in Item 12 ticked a box, which records that "I consider that there are grounds for cancellation under paragraph." Next to that statement "116(1)(a)" is inserted in handwriting in an additional box.

37 Under a sub-heading "Give reasons" within Item 12, the following is set out:

"Visa holder provided info[rmation] he had paid [a] deposit on business. He did not buy the said business. He has not managed daily affairs of a business in Aust[ralia]." (Emphasis in original.)

38 Under a further sub-heading within Item 12, "Reason why it is considered appropriate to cancel without notice under s 128", the following handwritten note appears:

"Applicant is offshore."

39 Item 13 is headed "Decision". The printed form records

"In view of the findings and assessment above, I have decided to: (Tick appropriate box)".

The box ticked has the words "CANCEL the visa holder’s visa" next to it.

40 By facsimile transmission of 14 February 2003, solicitors for the first appellant forwarded a submission to the visa office in Guangzhou contending that the "visa should not [have] been cancelled". The submission claimed that the first appellant had invested over $1 million in a newsagency business and enclosed supporting documentation. The submission included the following passages:

"Mr Hu is the principal decision maker for the overall directions and the performance of the business. He was the person who made decisions on the purchasing and pricing of the business and on the choosing of the business premises. He negotiated and decided on the rental rates for the business premises. He hired the manager and other staff members, and decided their remunerations. He also decides the daily expenses of the business and other management matters.

...

Mr Hu has not been able to stay in Australia for long period of time mainly because his chief engineer in his business in China resigned due to sudden illness and it took him six months to recruit a new engineer and he was much needed to watch closely of his business performance in China for the last two years. He could have suffered losses of millions of dollars if he was not in China to supervise his business in China.

...

Should his visa be cancelled and he had to withdraw his investment in Australia he would personally suffer a serious financial loss and his 10 Australian employees will lose their jobs."
41 On 9 April 2003, the Senior Migration Officer in the respondent’s Guangzhou office decided not to revoke the decision to cancel the visa. The letter notifying the first appellant of the refusal to revoke ("the non-revocation decision") is as follows:

"On 20 February 2001 you were granted a subclass 457 visa based on your claims that you intended to purchase and develop a business in Australia and be a principal of that business, maintain a direct and continuous involvement in the management of the business and make decisions that affect the overall direction and performance of the business from day to day.

...

At interview you stated that you had an intention to run a business in Australia but because of competition with your Chinese business and the need for you to be in China, you could not stay in Australia. As a consequence you hired a manager for your shop in Australia. You stated that you need to go and check on your business sometimes.

In his submission of 14 February 2003, your agent claims that you are the principal decision maker for the overall directions and performance of the business.

I accept that you were involved in the purchasing stage of the business and may have been involved with the hiring of a manger. However, there is no evidence to support your agent’s claims that you "maintain a direct and continuous involvement in the management of the business" and "make decisions that affect the overall direction and performance of the business from day to day."

Indeed your comments at interview were that you did not.

You have not shown that the grounds for cancellation did not exist.

You have not put forward any reason as to why your visa should not have been cancelled.

...

Members of your family unit, who held a visa because you held a visa and who are in Australia, will be detained and removed from Australia."

THE LEGISLATION

42 Section 116(1)(a) of the Act provides that the Minister may cancel a visa if satisfied that:

"any circumstances which permitted the grant of the visa no longer exist".

Section 116 is within Subdivision D of Part 2 Div 3 of the Act.

43 Subdivision E of Part 2 Div 3 of the Act (ss 119-127) specifies, according to the heading, the "Procedure for cancelling visas under Subdivision D in or outside Australia". Subdivision E requires notice of the proposed cancellation to be given to the visa holder, who must be invited to show that the grounds relied on do not exist or that there is a reason why the visa should not be cancelled.

44 Subdivision F (ss 128-133) is headed "Other procedure for cancelling visas under Subdivision D outside Australia". Section 128 of the Act, which is headed "Cancellation of visas of people outside Australia" provides as follows:

"If:
(a) the Minister is satisfied that:
(i) there is a ground for cancelling a visa under section 116; and

(ii) it is appropriate to cancel in accordance with this Subdivision; and

(b) the non-citizen is outside Australia;
the Minister may, without notice to the holder of the visa, cancel the visa."


45 Section 129(1) of the Act relevantly provides as follows:

"If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:

(a) stating the ground on which it was cancelled; and
(b) giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and
(c) inviting the former holder to show, within a specified time, being a prescribed time, that:
(i) that ground does not exist; or

(ii) there is a reason why the visa should not have been cancelled; and
...".

Section 129(3) provides that failure to give notification of a decision does not affect the validity of the decision.

46 Section 131(1) of the Act provides that the Minister, after considering any response to a notice under s 129

" (a) if not satisfied that there was a ground for the cancellation; or

(b) if satisfied that there is another reason why the cancellation should be revoked;

is to revoke the cancellation."

If the cancellation of a visa is revoked, the visa has effect as if it were granted on the revocation: s 133(3).

47 Section 140 of the Act is relevant to the position of the second appellant. Section 140(1) provides that if a person’s visa is cancelled under s 128, a visa held by another person because of being a member of the family unit of the visa holder "is also cancelled". Section 140(4) provides that if a visa is cancelled under s 140(1) because another visa is cancelled and the cancellation is revoked under s 131, the cancellation under s 140(1) is also revoked.

THE PRIMARY JUDGMENT

48 The primary Judge noted that then counsel for the appellants had developed "in a careful argument" the contention that the delegates’ cancellation and non-revocation decisions were each infected by jurisdictional error. However, his Honour considered that, in the circumstances of the case, it would not be appropriate to exercise his discretion to set the decision aside in favour of the appellants, even if it be assumed that they could establish jurisdictional error.

49 His Honour reasoned as follows:

"... it is important, in my view, to recall the specific conditions upon which a Subclass 457(7) is granted. In the present context, the visa was granted upon the basis that the first [appellant] "propose to develop a business" in Sydney to assemble car batteries. No possibility of acquiring an established bookshop was ever mentioned or countenanced. Yet by July 2002 the first [appellant] had abandoned his battery business proposal, notwithstanding that this was the whole basis upon which the visa was granted. Significantly, the first [appellant] made no attempt to inform DIMIA of the radical change of his position, or of his infrequent visits to Australia, until, six months later, when he was called in to be interviewed."

In my opinion, this conduct and the lack of candour on the part of the first [appellant] should be characterised as disentitling conduct for present purposes (cf Visy Board Pty Ltd v Attorney-General (Cth) (1983) 51 ALR 705 at 712-713).

Since the second [appellant’s] position necessarily depended upon the first [appellant’s] statutory entitlements, she can be in no better position, in discretionary terms, than that of the first [appellant].

For completeness, I should add that it has never been suggested that the battery business proposal might be re-activated, and, in my view, the acquisition of the established bookshop business could not qualify as the basis for the grant of a Subclass 457(7) visa.

Accordingly, for these discretionary reasons alone, I would refuse the relief sought."
THE SUBMISSIONS

THE APPELLANTS’ CONTENTIONS

50 Counsel for the appellants, Mr Lancaster, submitted that the primary Judge’s exercise of discretion had miscarried. He advanced a number of grounds in support of this contention. However, the principal ground was that the appellants had not been put on notice at the trial that the primary Judge might make a finding that the first appellant had demonstrated a lack of candour by reason of his failure to notify DIMIA that he had abandoned his proposal for a battery assembly business. Accordingly, so Mr Lancaster argued, the appellants had been denied procedural fairness at the trial.

51 Anticipating a notice of contention from the Minister (which was ultimately filed), the appellants recognised that, in order to succeed on the appeal, it would not be enough to establish that the primary Judge’s discretion had miscarried. In addition, the appellants had to show that either or both of the cancellation decisions of 27 January 2003 and the non-revocation decision of 9 April 2003 were affected by jurisdictional error.

52 The appellants attacked the cancellation decision on three grounds. First, they submitted that the delegate responsible for the cancellation decision had misconstrued s 128 of the Act and in consequence had failed to ask the correct question. This was said to be demonstrated by the fact that the delegate had given as the reason why it was considered appropriate to cancel without notice under s 128 that "the applicant is offshore". Section 128(b) of the Act made it a necessary, but not sufficient condition of a cancellation decision without notice to the visa holder that the "non-citizen is outside Australia". According to Mr Lancaster, the delegate fell into error by failure independently to consider, as required by s 128(a)(ii) of the Act, it was appropriate to cancel the visa in accordance with Subdiv F (that is, without prior notice to the visa holder).

53 For much the same reason, Mr Lancaster contended that the delegate had also failed to appreciate that s 128 conferred on the decision-maker a discretion whether or not to cancel a visa, even if the conditions to the exercise of the statutory power had been satisfied. It was submitted that the Form 1144 completed by the delegate showed that he had regarded it as sufficient to cancel the visa that the first appellant was outside Australia at the time of the decision.

54 Secondly, the appellants submitted that the delegate had erred in finding that a ground existed for cancelling the first appellant’s visa under s 116(1)(a) of the Act. Mr Lancaster argued that, contrary to the delegate’s conclusion, the "circumstances which permitted the grant of the visa" continued to exist notwithstanding the first appellant’s failure to establish the battery assembly business. The first appellant had established the newsagency business, and had demonstrated a genuine and realistic commitment to that business. While this was not the business he had proposed to establish, the conduct of the new business satisfied the requirements of cl 457.223(7) of the Regulations.

55 The appellants’ third argument was that the cancellation decision was vitiated by a failure to accord procedural fairness to the second appellant. She had been given no notice of the proposed cancellation, yet her rights would be directly affected, since under s 140 of the Act the cancellation of the first appellant’s visa would automatically result in the cancellation of her visa. Alternatively it was said that the decision maker had failed to take into account a relevant consideration, namely the circumstances of the second appellant and the impact of the visa cancellation upon her.

56 The appellants advanced two grounds for the contention that the non-revocation decision was affected by jurisdictional error. First, they argued that the purported notice of cancellation of the first appellant’s visa was not a valid notice and that the delegate therefore lacked jurisdiction to make the non-revocation decision. The defect in the notice was said to be evidenced by a file note made at the time of the non-revocation decision by the delegate who made the cancellation decision, as follows:

"It appears the visa grant was for the purpose of [gaining] access to education for the child."

Mr Lancaster argued that the notice of cancellation should have recorded that the delegate had formed this view.

57 It should be noted that this argument assumed that the failure to give a notice complying with s 129(1), while not affecting the validity of the cancellation decision (see s 129(3)), constituted non-compliance with an essential condition for the valid exercise of the power to refuse to revoke a cancellation decision. The validity of this assumption did not receive any detailed attention in the course of argument.

58 Secondly, the appellants submitted that the delegate had failed to take into account the matters raised in the letter of 14 February 2003 from the first appellant’s solicitors seeking revocation of the cancellation decision. This was said to be evidenced by the statement in the delegate’s letter of 9 April 2003 that

"[y]ou have not put forward any reason as to why your visa should not have been cancelled".

THE MINISTER’S CONTENTIONS

59 The Minister submitted that the primary Judge’s exercise of discretion had not miscarried. In particular, Mr Johnson, who appeared on behalf of the Minister, contended that even though the Minister had not invited his Honour to make a finding that the first appellant’s conduct lacked candour, the course of argument should have brought home to the appellant’s counsel that such a finding might be made.

60 The Minister filed by leave a notice of contention seeking to uphold the primary Judge’s decision on the basis that neither the cancellation decision nor the non-revocation decision was affected by jurisdictional error. The submissions to this effect are referred to elsewhere in this judgment.

THE NATURAL JUSTICE ISSUE

61 It is convenient to address first the appellants’ contention that they had been denied natural justice or procedural fairness by the manner in which the finding of lack of candour was made by the primary Judge. This finding, it will be remembered, was the foundation for his Honour’s refusal to exercise his discretion in favour of the appellants.

62 In his judgment, the primary Judge pointed out that the Business (Long Stay) visa had been granted upon the basis that the first appellant proposed to develop a business in Sydney to assemble car batteries. The first appellant had abandoned the battery business proposal by July 2002, yet had made no attempt to inform DIMIA of the "radical change of his position" until he was called into the Australian Consulate in Guangzhou for interview on 23 January 2003. The primary Judge held that

"this conduct and the lack of candour on the part of the first [appellant] should be characterised as disentitling conduct for present purposes". (Emphasis added.)

63 The bolded words in the quoted passage are important. His Honour did not merely find that the first appellant had failed to inform DIMIA that he had abandoned the proposal for a battery business and had started a newsagency business instead. He specifically found that the first appellant’s conduct showed a lack of candour. The dictionary meaning of the word candour is "frankness, as of speech; sincerity, honesty" (Macquarie Dictionary). It follows that his Honour was attributing to the first appellant a want of sincerity or honesty. In other words, his Honour concluded that the first appellant had acted in a manner that imported something in the nature of "personal dishonesty or moral turpitude": Butler v Fairclough (1917) 23 CLR 78, at 90, per Griffith CJ; Wicks v Bennett (1921) 30 CLR 80, at 91, per Knox CJ and Rich J. It was this finding that led the primary Judge to hold, on discretionary grounds, that the appellant was disentitled from the relief that otherwise would have been available under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) by reason of the (assumed) jurisdictional errors committed by the Minister’s delegates.

64 Mr Lancaster (who did not appear at the trial) contended that the first appellant had not been put on notice at the hearing that he was at risk of an adverse finding on the question of candour, such as might justify the withholding of relief on discretionary grounds. Not being put on notice, he did not have an opportunity to lead evidence to rebut the suggestion of lack of candour, nor to make submissions on that question. This, so Mr Lancaster submitted, was a denial of procedural fairness which caused the exercise of his Honour’s discretion to miscarry.

65 One of the two traditional rules of natural justice or procedural fairness is the so-called hearing rule, requiring a decision-maker to hear a person before making a decision affecting the interests of that person: M Aronson and B Dyer, Judicial Review of Administrative Action (2nd ed 2000), 300. (The other is the rule against bias.) In a well known passage, Rich J in Cameron v Cole (1944) 68 CLR 571, at 589, explained the operation of the hearing rule in relation to courts:

"It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside."

Recently, Spigelman CJ has pointed out that the obligation to comply with procedural fairness "imports a higher level of content when imposed on a court than in decision-making processes conducted by administrators or tribunals": BP Australia Ltd v Brown (2003) 46 ACSR 677, at 700 (NSW CA).

66 At the trial, the Minister advanced a contention in his written submissions that even if the delegate had committed jurisdictional error, relief should be refused on discretionary grounds. However, this contention was put on the basis that the first appellant had had an opportunity to seek revocation of the decision to cancel his visa. The Minister argued that since the first appellant had availed himself of the opportunity to make submissions in support of his application to have the cancellation decision revoked, any jurisdictional error had been effectively negated and relief should be withheld. The Minister’s counsel did not invite the primary Judge to make a finding that the appellant had displayed lack of candour, or had otherwise acted dishonestly or in an underhand fashion. Nor did counsel invite the primary Judge to exercise his discretion adversely to the first appellant on the basis of any such finding.

67 There was only one reference at the trial, in the context of the Court’s discretion to grant or withhold relief, to the first appellant’s failure to notify DIMIA of the abandonment of his proposal to establish a battery business. This was in the course of submissions in reply by then counsel for the appellants, when the following exchange occurred:

"[COUNSEL]: ... My brief submission is that there is no discretionary basis to refuse my client relief. He hasn’t delayed, he hasn’t done anything inappropriate, especially the second [appellant] who simply has had [...] her visa cancelled without any opportunity to comment at any time.

HIS HONOUR: Did he go back to the department immediately he knew he wasn’t going ahead with the proposal? He was interviewed, I know that. Did he go back to the department and say, Look, I’m not going ahead with this proposal, I think I should draw this to your attention?

[COUNSEL]: He went ahead with a different proposal. Your Honour continues to be concerned by the idea that he is stuck with the one proposal.

HIS HONOUR: I am, yes. Maybe that’s an assumption I shouldn’t be making."

68 In my view, it is clear enough that in this exchange the appellants’ counsel was responding to the Minister’s submission that the Court should exercise its discretion adversely to the appellants because the first appellant had an adequate opportunity to put submissions in support of his request that the cancellation decision be revoked. Counsel was arguing that none of the circumstances that might be considered sufficient to attract an adverse exercise of the discretion was present.

69 It is true that the primary Judge adverted, in this context, to the failure of the first appellant to inform DIMIA that he did not intend to proceed with the proposal to establish a battery business. His Honour may well have had in mind a concern about the first appellant’s conduct that ultimately led him to make the finding of lack of candour in the judgment. But the language used in the exchange did not clearly inform the appellant’s counsel that his Honour was contemplating making a finding to that effect. Having regard to the fact that the Minister had never suggested that such a finding should be made, in my view the exchange was not in terms that should have alerted the first appellant’s counsel to the possibility that the primary Judge was contemplating making a finding that the first appellant had acted with a lack of candour. The primary Judge referred only to the fact of the first appellant’s failure to communicate with DIMIA. His Honour did not say or imply that he was proposing to make a finding to the effect the first appellant had acted in a less than honest manner.

70 I do not of course suggest that a trial judge is ordinarily required to put a party clearly on notice that he or she might be the subject of an adverse factual finding. In the usual course, the areas of factual dispute are identified by the pleadings, the evidence or the submissions (or a combination of the three). There is usually little doubt as to the findings the judge is asked to make and, indeed, there are principles, such as the rule in Browne v Dunn (1893) 6 R 67, which are designed to ensure that matters are put to an opponent’s witnesses upon which it is proposed to rely in contradiction of those witnesses’ evidence: Cross on Evidence (6th Aust ed, 2000), at [17435].

71 The circumstances of the present case are unusual. The Minister had not raised the first appellant’s lack of candour as an issue. No written or oral submission had been made that the primary Judge should find that the first appellant had acted in a manner that smacked of dishonesty. The primary Judge mentioned in argument the first appellant’s failure to notify DIMIA that he had abandoned his proposal to establish a battery business. His Honour perhaps had in mind that the first appellant appeared to have acted in a less than frank manner and may have intended to convey that concern to counsel, with a view to inviting a response. Unfortunately, while it is understandable that his Honour was concerned at the failure of the first appellant to notify DIMIA of his change of plans, in my view the language used did not convey that he was contemplating making a factual finding imputing lack of candour to the first appellant. In these circumstances, it was not unreasonable for counsel to assume (as he clearly did) that there was no need either to reopen his case in order to call further evidence on the candour issue, or to develop a submission that his Honour should refrain from a finding imputing want of candour to the first appellant. Had counsel been put on notice that his Honour was contemplating such a finding, it is likely that a submission would have been made that there were innocent explanations for the first appellant’s failure to notify DIMIA.

72 It follows that the finding of lack of candour at first instance was made without the appellants being put on notice that such a finding might be made. Accordingly, they did not have an opportunity to be heard on the issue that proved to be decisive to the outcome of the proceedings. His Honour’s exercise of discretion therefore miscarried. It is not necessary to consider whether a finding of lack of candour was open on the material before the primary Judge.

73 This conclusion does not, however, dispose of the appeal. It is necessary to consider whether the dismissal of the application at first instance should be upheld on the ground that the appellants have failed to show that either of the decisions was affected by jurisdictional error.

WAS THERE JURISDICTIONAL ERROR?

THE LEGISLATIVE SCHEME

74 In considering whether the delegate’s decisions were affected by jurisdictional error, it is necessary first to analyse the statutory scheme governing the cancellation of visas.

75 Subdivision E of Part 2 Div 3 of the Act establishes a procedure for the cancellation of visas where the visa holder is either inside or outside Australia. The procedure requires notice of the proposed cancellation to be given to the visa holder, who must also be invited to make representations as to why the visa should not be cancelled.

76 Subdivision F, by contrast, establishes a procedure for the cancellation of a visa without prior notice to the visa holder. Section 128 requires the Minister to be satisfied of two matters before the power can lawfully be exercised. The Minister must be satisfied that

(i) there is a ground for cancelling a visa under s 116 (s 128(a)(i)); and
(ii) it is appropriate to cancel in accordance with Subdiv F (that is, without notice to the visa holder) (s 128(a)(ii)).

In addition, it is necessary for the visa holder to be outside Australia at the time of cancellation (s 128(b)). Since this requirement is not expressed to be a matter of the Minister’s satisfaction, the visa holder must in fact be outside Australia at the time of cancellation.

77 Mr Johnson accepted on behalf of the Minister that even if the three conditions are satisfied, s 128 confers a "residual" discretion on the decision-maker to determine whether or not the visa should be cancelled. In doing so, he accepted the correctness of the decision of Moore J in Doukmak v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 432. It follows that it would be an error of law for the decision-maker to act on the view that the visa must be cancelled if the three conditions are satisfied.

78 It also follows from this analysis of s 128 that the Minister must consider both whether it is appropriate to cancel the visa in accordance with the procedure in Subdiv F and whether, as a matter of discretion, the visa should be cancelled (assuming a ground for cancellation is made out). Moreover the mere fact that the condition in s 128(b) is satisfied (that is, the visa holder is outside Australia) does not establish that it is appropriate to cancel the visa in accordance with Subdiv F. If it were sufficient, there would be no work for s 128(a)(ii) to do. The decision-maker must consider whether the circumstances of the case are such that it is appropriate to adopt the procedure under Subdiv F, thereby allowing the visa to be cancelled without prior notice to the visa holder.

79 If a visa is cancelled under s 128, the Minister is obliged to give the former visa holder a notice under s 129. Among other things, the notice must:

• state the "ground on which [the visa] was cancelled" (s 129(1)(a));
• give "particulars of that ground" (s 129(1)(b)); and
• give particulars "of the information...because of which the ground was considered to exist" (s 129(1)(b)).
80 The reference to "the ground" is plainly to one of the eight grounds for cancelling a visa referred to in s 116(1) (see s 128(a)(i)). In the present case the ground specified in the notice was that stated in s 116(1)(a), namely that "any circumstances which permitted the grant of the visa no longer exist".

81 To satisfy the requirement that particulars be given of the ground on which the visa was cancelled, the notice must identify the circumstances which the decision-maker regarded as sufficient to conclude that a ground for cancellation existed. It is not necessary in this case to determine the degree of specificity required, since the appellant did not dispute that the notice provided to the first appellant (Form 1144) complied with the requirement. The notice recorded that the visa had been granted to allow the first appellant to manage "[the] daily operations of business in Aust[ralia]". It also recorded that the intended business had not been purchased and that the visa holder had not managed "daily affairs of a business in Aust[ralia]". While there is some ambiguity about the latter observation, in context it seems to be a reference to the fact that the first appellant had not managed the battery business as proposed when he applied for the visa, since he had not proceeded with his plans to establish that business.

82 The third requirement is to give particulars of the "information...because of which the ground was considered to exist". This is not a requirement that the notice set out the decision-maker’s reasons for cancelling the visa. Rather the decision-maker must give particulars of the information which led to the conclusion that the nominated ground in s 116(1) had been made out. Once again, subject to two arguments made by the appellants, there was no dispute that the notice gave adequate particulars of the information because of which the ground in s 116(1)(a) was considered to exist. The two arguments were, first, that the notice should have referred to the "information" in the file note of 9 April 2003 and, secondly, that the information recorded was not sufficient to justify cancellation of the first appellant’s visa because he had developed and maintained a business activity in Australia, albeit not the one originally proposed by him.

83 Section 129 requires a notice to be given to the former visa holder whose visa has been cancelled under s 128 of the Act. A person, such as a member of the visa holder’s family unit, whose visa has been cancelled automatically in consequence (see s 140(1)) is not required to receive a notice.

THE "OFFSHORE" ARGUMENT

84 The appellants’ argument that the delegate had misconstrued s 128 of the Act when making the cancellation decision rested heavily on the inferences to be drawn from the notice provided to the first appellant. In particular, Mr Lancaster placed very considerable reliance on the insertion of the words "Applicant is offshore" in the box provided to record "Reason why it is considered appropriate to cancel without notice under s 128". It was this notation that was said to support an inference that the delegate had assumed that the first appellant’s absence from Australia of itself made it appropriate to cancel the visa without notice to him. That assumption, so it was argued, involved a misreading of s 128.

85 In order to assess this contention, it is necessary to read the completed Form 1144 in the light of the fact that its language does not precisely mirror that of s 129. The form refers to "evidence of and reasons why grounds for cancellation exist", rather than (as in s 129(1)(b)) "particulars of [the] ground" and "information...because of which the ground was considered to exist". Form 1144 makes provision for the decision-maker to record the reasons for concluding that there are grounds for cancellation, even though s 129 does not require reasons to be given to the visa holder. Furthermore, s 129 does not require the notice to give reasons why the decision-maker considered it appropriate to cancel the visa without notice under s 128, rather than to follow the procedure prescribed in subdiv E. Nonetheless, Item 12 of Form 1144 contains provision to record "Reason why it is considered appropriate to cancel without notice under s 128". This language closely mirrors that of s 128(a)(ii) of the Act, but does not refer expressly to that sub-paragraph.

86 The disparities between the language of the printed Form 1144 and the limited requirements of s 129 led Mr Johnson to submit that the decision-maker could easily have understood the words in Item 12 as inviting reference to the precondition specified in s 128(b) of the Act (that is, the visa holder is outside Australia), rather than to that in s 128(a)(ii) of the Act (that is, the Minister’s satisfaction that it is appropriate to cancel the visa in accordance with subdiv F). On that basis, so he argued, it was not to be inferred that the delegate had decided that it was appropriate to use the procedure provided for in Subdiv F solely because the first appellant was outside Australia. In other words, the manner in which Form 1144 was completed was consistent with the delegate having taken into account the circumstances of the case and not having regarded the fact that the first appellant was outside Australia as decisive of whether it was appropriate to follow the procedure in Subdiv F.

87 The principal difficulty with this argument is that the relevant part of Form 1144, for better or worse, follows closely the language of s 128(a)(ii). The delegate may not have been required by s 129 to record his reason for forming the view that it was appropriate to cancel the first appellant’s visa under s 128. The fact is that he did record a reason for forming that view. The only reason he gave was the fact that the first appellant was offshore. This strongly suggests that the delegate regarded that fact as sufficient, of itself, to warrant invoking the procedure under s 128 to cancel the first appellant’s visa without notice to him. In other words, it suggests that the delegate failed to turn his mind to the critical question posed by s 128(a)(ii) of the Act, namely whether the circumstances of the case warranted the use of the procedure in Subdiv F, as distinct from the procedure in Subdiv E.

88 I accept that it is possible that the delegate understood Item 12 in Form 1144 to refer to the precondition stated in s 129(1)(b) of the Act, rather than the quite distinct requirement in s 128(a)(ii). It is conceivable that he did consider whether the circumstances of the case made it appropriate to cancel the first appellant’s visa under s 128. There is, however, no evidence from the delegate to that effect. The possibility is rendered less likely by the printed heading to Form 1144, which states that the form is "[f]or use where the visa holder is outside Australia". Why would the delegate need to restate that which is obvious from the printed Form 1144 itself, namely that the precondition in s 128(b) of the Act had been satisfied?

89 Of course, the delegate’s reasons must be given a beneficial construction, as dictated by Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271-272, per Brennan CJ, Toohey, McHugh and Gummow JJ. If there were some indication in the rest of the document that the delegate took into account factors other than the first appellant being offshore when concluding that the requirements of s 128(a)(ii) had been satisfied, it would perhaps be open to conclude that the delegate had probably understood Form 1144 in the manner suggested by Mr Johnson. But none of the reasons given in the rest of the document is expressed to bear on the question of whether it was appropriate to cancel the first appellant’s visa under s 128, rather than under Subdiv E. In short, the document, read as a whole, suggests that the delegate considered it necessary to go no further for the purposes of s 128(a)(ii) of the Act than to establish that the first appellant was outside Australia. Putting the matter another way, the document does not suggest that the delegate turned his mind to the question of whether the circumstances of the case made it appropriate to cancel the first appellant’s visa without notice in accordance with Subdiv F, rather than follow the procedure in subdiv E which require the appellant to receive prior notice of the proposed cancellation.

90 Even giving the Form 1144 completed by the delegate a beneficial construction, the most natural reading of the document is that the delegate considered that the fact that the first appellant was outside Australia was sufficient of itself to satisfy s 128(a)(ii) of the Act. This involves a misreading of s 128(a)(ii) which, as has been explained, requires the delegate to consider whether the circumstances of the case, not limited to the fact of the visa holder being outside Australia, make it appropriate to cancel the visa in accordance with Subdiv F. It follows that the delegate in the present case misconstrued the statutory task and failed to ask the correct question. This constitutes a jurisdictional error, with the consequence that the delegate’s decision is not protected by s 474(1) of the Act (the so-called privative clause): see Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359, at 376, per curiam.

OTHER ISSUES

91 In view of the conclusions that I have reached, the remaining issues can be dealt with more briefly.

92 First, the appellants’ contention that the delegate had failed to appreciate that s 128 conferred a discretion whether or not to cancel the first appellant’s visa must be rejected. Item 13 of the notice provided to the first appellant records that the delegate, in view of the findings and assessment set out earlier in the document, had decided to cancel the visa. A notice in this form is quite consistent with the delegate having appreciated that the existence of a ground for cancellation is not decisive as to whether the visa should be cancelled. In contrast to the reason given by the delegate as to why it was considered appropriate to cancel the visa without notice under s 128, there is no affirmative statement suggesting that the delegate regarded the existence of a ground for cancellation as conclusive on the question of whether the visa should be cancelled.

93 Secondly, it was plainly open to the delegate to find that the circumstances which permitted the grant of the visa to the first appellant no longer existed. An applicant only meets the requirements of cl 457.223(7) of the Regulations if the Minister is satisfied that he or she proposes to develop a particular business activity in Australia and to conduct it as a principal. The applicant must put forward a proposal to develop a business activity in Australia. It is that proposed activity that must be assessed by the Minister. Among other things, the proposed activity must be "of benefit to Australia": cl 457.223(7)(a)(ii). This criterion requires the Minister to assess, for example, whether the conduct of the business activity will contribute to the creation or maintenance of employment opportunities for Australians and whether the operator will introduce new or improved technology or business skills: cl 457.111(2). Such an assessment can only be made in relation to a proposal to establish a particular business.

94 The language of s 116(1)(a) of the Act is necessarily general, since it potentially applies to a large number of visas and a wide variety of circumstances in which those visas might be cancelled. The reference in s 116(1)(a) to "any circumstances which permitted the grant of the visa", in the context of an independent executives visa, includes the proposal to develop a particular business in Australia. Such a proposal must have been assessed by the Minister, prior to the grant of the visa, as being of benefit to Australia. If the visa holder, for whatever reason, has simply abandoned the proposal which led to the visa being granted, and has never commenced or conducted the proposed business activity, the circumstances which permitted the grant of the visa no longer exist. It cannot have been the intention of cl 457.223(7) that a visa holder, having secured a visa on the basis of a proposal to develop a particular business activity, could decide not to implement that proposal and unilaterally substitute another (unassessed) business activity yet still retain the visa.

95 Thirdly, the appellants’ argument that the cancellation decision was vitiated by a failure to accord procedural fairness to the second appellant raises a question of statutory construction. When a statute confers power on a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words or necessary intendment: Annetts v McCann (1990) 170 CLR 596, at 598, per Mason CJ, Deane and McHugh JJ; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, at 100-101, per Gaudron and Gummow JJ. It can be accepted that the automatic cancellation of the second appellant’s visa in consequence of the cancellation of the first appellant’s visa (by virtue of s 140 of the Act) prejudiced her interests. The question, then, is whether the Act expressly or by necessary intendment excludes the rules of natural justice that otherwise would govern the exercise of the cancellation power insofar as it affects the first appellant.

96 Section 128 of the Act specifically provides a procedure for the cancellation of a visa without prior notice to the visa holder. The visa of a person who holds his or her visa as a member of the family unit of the primary visa holder is then automatically cancelled (s 140). The Minister is required to give notice of the cancellation to the primary visa holder, but not to the family member (s 129). The primary visa holder (but not the family member) is entitled to request the Minister to revoke the cancellation and to make submissions in support of that request (ss 129(1)(c), 131). Notification of the decision on the revocation request is to be given to the primary visa holder (s 132). Revocation of the cancellation decision automatically revokes the cancellation of the family member’s visa (s 140(4)).

97 It would be odd, to say the least, if the primary visa could be cancelled without prior notice to the visa holder, yet could not be cancelled unless notice had been given to a family member holding a secondary visa and an opportunity afforded to that family member to make representations. Given that the very point of cancelling without notice might be to prevent the primary visa holder returning to Australia (see, for example, Doukmak v Minister, at 436) and given the difficulty of communicating with family members (who may or may not be in Australia), a requirement of this kind could frustrate the statutory scheme. The legislation appears to contemplate that any representations relating to the position of a family member will be made by the former visa holder in support of a request to the Minister to revoke the cancellation.

98 It is true that s 128 of the Act does not expressly state that the primary visa can be cancelled without notice to the family member who holds the secondary visa. The reason for the omission, clearly enough, is that the drafter assumed that the family member would have no independent entitlement to make representations to the decision-maker prior to the cancellation decision. In my view, the legislative scheme is inconsistent with the family member having any such entitlement.

99 Fourthly, there is no substance in the appellant’s argument founded on the file note suggesting that the application for the visa appeared to be for the purpose of gaining access to education for the second appellant. The file note was made after the delegate had received and considered the first appellant’s submissions seeking revocation of the cancellation decision. There is nothing to indicate that the delegate held this view at the time of the cancellation decision. In any event, as I have explained, s 129(1) of the Act does not require the Minister to inform the primary visa holder of the reasons for the cancellation decision. All that is required, other than particulars of the ground, is that the notice give particulars of the "information because of which the ground was considered to exist" (s 129(1)(b)). At most, the file note merely records a tentative inference drawn by the delegate from information supplied by the visa holder. It does not constitute "information... because of which the ground was considered to exist".

100 Finally, I reject the submission that the delegate failed to consider the first appellant’s response to the notice of cancellation. The submission was based on the fact that the letters communicating the non-revocation decision included the following statement:

"You have not put forward any reason as to why your visa should not have been cancelled."

101 The first paragraph of the letter records that the first appellant’s agent’s response was received on 14 February 2003 by facsimile transmission. The second paragraph states that:

"After considering your response, the Department has decided not to revoke the cancellation of your visa under s 131".

The words fastened upon by counsel for the appellants are inconsistent, when read literally, with the delegate’s statement that he considered the first appellant’s response. Reading the letter as a whole, the delegate was simply communicating that no acceptable reasons had been advanced as to why the visa should not have been cancelled or the cancellation decision revoked.

CONCLUSION

102 The appeal should be allowed and the order dismissing the application should be set aside. The question of whether the appellants should be denied relief on discretionary grounds remains to be resolved. The parties should file written submissions as to the procedure that should be adopted to enable that question to be resolved. The Minister should pay the costs of the appeal.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.



Associate:

Dated: 26 March 2004



Counsel for the Applicant: Mr R Lancaster



Solicitor for the Applicant: Parish Patience



Counsel for the Respondent: Mr G Johnson



Solicitor for the Respondent: Blake Dawson Waldron



Date of Hearing: 12 February 2004



Date of Judgment: 26 March 2004



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