FEDERAL CIRCUIT COURT OF AUSTRALIA
SZWAP v MINISTER FOR IMMIGRATION 	[2015] FCCA 511	

Catchwords: 
MIGRATION – Review of the decision of the delegate – protection (class XA)(subclass866) visa – whether issue of notice of intention to consider cancellation invalid – whether the delegate failed to consider an integer of the claim – consideration of Migration Regulations as existed prior to amendment – application dismissed.	

Legislation:  
Migration Act 1958 ss.5, 46, 48, 107, 109, 112, 133 476 
Migration Regulations 1994 reg.2.41
Acts Interpretation Act 1901 s.33	

McDade v Minister for Immigration and Multicultural Affairs [2000] FCA 528
Tickner v Chapman (1995) 57 FCR 451; (1995) 133 ALR 226	

Applicant:	SZWAP	

Respondent:	MINISTER FOR IMMIGRATION & BORDER PROTECTION	

File Number:	SYG 199 of 2015	

Judgment of:	Judge Street 	

Hearing date:	4 March 2015	

Date of Last Submission:	4 March 2015	

Delivered at:	Sydney	

Delivered on:	4 March 2015	

REPRESENTATION
Counsel for the Applicant:	Mr L. Karp	

Solicitors for the Applicant:	D’Ambra Murphy Lawyers	

Counsel for the Respondent:	Mr M. J. Smith	

Solicitors for the Respondent:	Australian Government Solicitor	

ORDERS
(1)	The Application be dismissed. 
(2)	Applicant pay the First Respondent’s costs fixed in the sum of $5000.
(3)	No publication of the Applicant’s name or the name of the Applicant’s husband.

FEDERAL CIRCUIT COURT OF AUSTRALIA 
AT SYDNEY	
SYG 199 of 2015
SZWAP	
Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION	
Respondent

REASONS FOR JUDGMENT
As Corrected

1.	This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 for a Constitutional writ in respect of two different subject matters.  First, a decision of the Minister made on 22 December 2014 and secondly, in relation to the issue of a notice under s.109 on 17 March 2014 which again was a notice signed by the Minister.
2.	When the matter first came before the Court, the Court raised concern as to whether the grounds identified in the application disclosed an arguable ground and in light of that concern the matter was listed for brief argument on 27 February 2015 as the applicant was in detention and in light of the assistance provided by Mr Karp, the Court was satisfied that there was an arguable case and the matter was listed for urgent final hearing today.
3.	The grounds of the further amended application are as follows:  
1.	The Respondent acted in breach of ss 108 and 109 of the Migration Act, and the requirements of procedural fairness, in that he failed to lawfully consider the applicant’s claim that she acted under duress in making false statements to the Minister in support of her Protection Visa application in 2009.
2.	The issue of the “Notice of Intention to Consider Cancellation Under Section 109 of the Migration Act” on 17 March 2014 to the applicant under s. 107 of the Migration Act, was invalid, with the result of the cancellation of her Protection Visa pursuant to s. 109 was invalid. 
Particulars
(a) The issue of the Notice of 17 March 2014 was contrary to s. 112(1) of the Migration Act.
3.	The cancellation of the applicant’s Protection Visa under Section 109 of the Migration Act on 24 December 2014 was invalid, because the cancellation was contrary to s. 112(2) of the Migration Act.
Particulars 
(a) The Minister had, in 2013, made a decision not to cancel the applicant’s visa.
(b) There was no instance of non compliance other than those which the Minister considered in 2013.
4.	 The Minister erred in finding that s. 48 would apply to the applicant’s case where her visa to be cancelled. 
Particulars
(a) The Minister should have found that s. 46A applied to the applicant’s case.
5.	The Minister failed to lawfully consider issues that clearly arose on the documents before him. 
Particulars
(a) Whether, at the time the applicant arrived in Australia, she would have had a well-founded fear of persecution for reason of her religion, she being from a Sunni Moslem family in Basra, that issue arising in the “International Treaties Obligations Assessment” dated 23 September 2014 and carried out by an officer of the Department of Immigration and Border Protection.
(b) Whether it was in the interests of the applicant’s husband, who is an Australian citizen, that she remain in Australia to care for both him and her children.
6.	The Minister erred in that he considered Migration Regulation 2.41(c) as it existed prior to amendments made by Migration Amendment (2014 Measures No. 2) Regulation 2014 (No. 199/2014), Reg 2 and Item 4 of Schedule 3.
4.	It is convenient to deal with the grounds in the same order in which submissions were presented to the Court.  Mr Karp first addressed ground 6.  Mr Karp identified that reg.2.41(c) of the Migration Regulations had been amended on 11 December 2014 which took operative effect on 12 December 2014 and therefore was applicable at the time of the Minister’s decision on 22 December 2014.
5.	The amendment to reg.2.41(c) was to substitute the following:  
(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
6.	Prior to 12 December the relevant provision was reg.2.41(c) was as follows:  
(c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document
7.	In this case it is clear that there was a very serious fabrication and deception practised by the applicant at the time of obtaining her initial protection visa.  It is not in issue that the applicant in essence lied at the time of her application for a protection visa.  There was an explanation for the lie proffered in 2009 and not revealed until 2012 that she was acting in essence under the direction of her father and that he forced her to fabricate the story.  
8.	It is clear from the Minister’s decision that in fact the Minister, relevantly within reg.2.41(c), found that the decision to grant the protection visa was based wholly or in part upon the incorrect information or bogus documents provided by the applicant.  Indeed the last sentence of para.[46] of the Minister’s decision makes that crystal clear which provides as follows:  
46. … In other words, had the correct information been known at the time the visa holder would not have been granted a Protection visa.
9.	Mr Karp correctly pointed out that the Minister has set out in his reasons the earlier provision, at least, after para.[42]:  
… (c) the likely effect of a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document (2.41(c)).
10.	The amendment, in my opinion, was not one that broadened the scope of the decision making by the Minister but in fact narrowed it considerably to whether the protection visa was based wholly or partly on incorrect information or a bogus document.  It is clear from what the Minister did in this case that he in fact turned his mind to and made relevant findings in respect of that mandatory consideration.  The reference to the old provision and the deliberation on what might have been likely was not a non-compliance with the mandatory requirements of reg.2.41.  
11.	I am satisfied that the Minister properly took into account and applied relevantly reg.2.41(c) as amended at the time of his decision by the deliberation in which he engaged.  I would further add that if in any event, contrary to my view, it was the case that there was some error by reason of referring to the old provision, in light of the finding made by the Minister squarely within the operation of the new provision and being satisfied that the decision to grant the visa was based wholly or partly on incorrect information I would, as a matter of discretion, have refused to grant any relief on that ground.  In these circumstances there’s no substance in ground 6.  
12.	In relation to ground 5 I was taken to the decision in Tickner v Chapman (1995) 57 FCR 451; (1995) 133 ALR 226 at 462, point C and [495], point G identifying a concept and content of the concept of “consider” insofar as s.109 is concerned.  In this case it is, in my opinion, clear that the Minister complied with the requirements of ss.(1)(a) in determining whether there was non-compliance by the holder of a visa.  It’s crystal clear there was non-compliance by the applicant in a very serious respect.  The Minister, based on a fair reading of his decision, clearly engaged in considering any response to the notice about non-compliance given in a way required by para.[107](1)(b).  
13.	It was advanced that the Minister had failed to make express findings or refer to the applicant’s alleged fear of persecution being a Sunni Muslim family in Basra.  It’s clear that that was a matter to which the Minister had regard because it was within the information provided to the Minister in an International Treaties Obligation Assessment dated 23 September 2014. That document relevantly said:  
Ms Abbas also raised the following claims:  
•	She will be harmed on the basis of being from the Sunni Family from Basra, a Shiite dominated area.  
•	She does not attend mosque so she will be targeted for her un-Islamic;  she is identifiable as a returnee and she has not been in Iraq since the age of two and her Arabic language skills are poor;  and,
•	She will be targeted as a returnee from a western country.
14.	It is clear the Minister had regard to these matters in the reference to the non refoulement obligation which he weighed in relation to the seriousness of the non-compliance by the applicant in the present case.  
15.	The reference to the applicant’s fear of persecution, for reason of her religion and being from a Sunni Muslim family, is not one which can be said to be a mandatory requirement upon which the Minister had to make findings under reg.2.41 and in my opinion, it was not an essential integer in the consideration process required by the Minister under s.109.  The second matter raised by the applicant was the reference in the Minister’s decision to the applicant’s husband having mental problems and her requirement to assist him in many aspects of his daily life.
16.	This was clearly a matter, in relation to which the Minister had regard, as well as, obviously, the need for caring for her husband and her children, as referred to in para.[48], which is as follows:
48. The visa holder is currently residing in regional New South Wales as a permanent resident with her Australian citizen husband and two Australian citizen children. The visa holder states that her husband has "mental problems” and that she assists him with many aspects of daily life. She states that caring for her husband and her children takes the majority of her time but that she also “wants to finalise her study in Business Management or Tourism as soon as she is able.”
17.	 Again, I am satisfied that the Minister had regard to the matter as to the applicant’s husband and his mental problems and his interests in the weighing process in which he engaged.  Further, on a fair reading of the Minister’s decision, I am satisfied the Minister has had regard to those factors individually and cumulatively, in relation to that weighing process.  
18.	Indeed, in this case, a serious and material consideration was the best interests of the children to which the Minister squarely had regard. I am satisfied that consideration included weighing the other matters as to the husband’s mental problems and the husband’s interests. It was not necessary, for the Minister to make express findings about the applicant’s fear of persecution or in relation to the interests of her husband, the applicant’s role caring for him and the children.
19.	I am satisfied that the Minister properly considered the requirements of s.109(1)(b), in relation to the response to the notice about the non-compliance.  The focus of s.109(1)(b) is upon the non-compliance, given in the way required by s.107(1)(b).  It cannot be said in this case that the Minister has not properly considered and had regard to the response to the non-compliance.  Further, the Minister complied with s. 109(1)(c) and had regard to the prescribed circumstances.  
20.	I am satisfied that on a fair reading of the Minister’s reasons as a whole he had regard to both matters identified in ground 5 and that it was not necessary, as a mandatory requirement, for the Minister to make findings upon those matters in the statutory exercise required under s.109.  I am also satisfied that the Minister had regard to those factors individually and cumulatively in relation to the whole of the matters that were before the Minister in the decision that he made under s.109.  Accordingly, there is no substance in ground 5.  
21.	The applicant then developed grounds 2 and 3, in respect of which, it put that the decision of McDade v Minister for Immigration and Multicultural Affairs [2000] FCA 528 required a construction of s.112 that the meaning of “another instance” within s.112 prevents the same instance being the subject of another s.107 notice in a separate consideration by the Minister.  
22.	Section 112 provides as follows:
A notice under section 107 to a person because of an instance of possible non-compliance does not prevent another notice under that section to that person because of another instance of possible non-compliance.
23.	 In my opinion, the respondent is correct in identifying that the observations of Nicholson J in McDade was focused upon the issue of another s.107 notice, when there was an existing s.107 notice “still under consideration”.
24.	That is clear from what was said by Nicholson J in para.[46]:
46. S33(1) of the Acts Interpretation Act 1901 supports a construction of s107 as the source of power to be exercised from time to time as the occasion requires unless the Act indicates a contrary intention. In my view there are indications in subdivision C of Div 3 of the Act of such a contrary intention. They are:
(a) In s107(1):
(i) the requirement in s107(1)(c) stating that the Minister will consider cancelling the visa in the circumstances there referred to.
(ii) the requirement in s107(1)(d) that s112 is among these, the effect of which is set out in the notice.
(b) The requirement in para108(b) that the Minister "...decide whether there was non-compliance by the visa holder in the way described in the notice". The notice itself specifies the relevant alleged non-compliances: s107(1)(a).
(c) The provisions of s110 and s111 and the use of the phrase in each "to avoid doubt", indicating a certain exactitude in the regime being established by s107-s109.
(d) The implication of s112(1) that a second notice under s107 is prevented where the second notice is not related to "another instance of possible non-compliance;" that is, a second notice cannot relate to matters already the subject of a notice still under consideration (emphasis added). 
25.	The reasoning in McDade made clear that it was not purporting to determine that no fresh s.107 notice could be issued in respect of the same subject matter, in respect of a different decision making process.  
26.	Paragraph 47, in McDade provides:
47. The cumulative effect of these provisions is to establish a system of such character that it negates any intention that the power in s107 is able to be exercised from time to time without due completion of the system thus established. Accordingly, I consider the exercise of power in the issue of the Second Notice under s107 on the same facts and circumstances would be an invalid exercise of power if the Minister has not resolved the prior notice pursuant to s108(b) cf Scarfe v Federal Commissioner of Taxation (1920) 28 CLR 271 at 275; Vella v Grey (1985) 61 ALR 210 at 213 (emphasis added). 
27.	I note that the decision in McDade went on appeal and that the decision was reversed, albeit on other grounds, and this topic was not addressed.  Mr Karp sought to add attraction to his argument that one could never reagitate the subject matter of a s.107 notice in a fresh deliberation by reason of the provisions of s.133A. Section 1331A does not have that effect.  In my opinion, s.112 must be read in the context of s.33 of the Acts Interpretation Act 1901 and 33(1) of the Acts Interpretation Act, which supports that the power may be exercised in relation to s.107 from time to time.
28.	The work done by s.112 in respect of another instance of possible non-compliance, is confined to the consideration and decision making in respect of an existing 107 notice.  Accordingly, the decision of McDade does not assist the applicant in this case.  I am satisfied that the notice under s.107 in this case was valid and I am satisfied that s.112 does not prevent the issue of the notice in respect of non-compliance in a fresh determination by the Minister and in these circumstances, there is no substance in ground 2 or ground 3, in relation to the challenge to the Minister’s decision.  
29.	Ground 4 sought to raise a reference by the Minister in para.[60] to s.48 of the Act, which it was suggested by the applicant, was incorrect because of the definition of unauthorised maritime arrival in s.5AA.  I agree with the first respondent’s submissions that the reference to s.48 was correct and that the applicant’s protection visa was cancelled under s.109, which meant that in the future, the type of visas for which she could apply would be limited (see reg. 2.12 of the Migration Regulations).  
30.	The fact that s.46A further restricts the applicant’s ability to make a visa application does not render the Minister’s statement irrelevant or misleading. This is particularly so in circumstances where the Minister was aware of the cancellation of the applicant’s protection visa and that it would likely lead to an indefinite detention of the applicant.  Accordingly, I am satisfied that there was no error in the understanding of the Minister as raised by ground 4.  
31.	Further, I am satisfied that the reference to s.48 was not, in any event, a material consideration by the Minister, in respect of his reasons read as a whole, as in this case it was the seriousness of the non-compliance by the applicant that was at the heart of the decision making process.  For these reasons, ground 4 is not made out.  
32.	In relation to ground 1, it was suggested that the Minister had failed to take into account the evidence of the applicant.  Relevantly, as follows:
4. She has never been close to her father though she cares deeply about her mother because she saw the way her mother was treated by her father and the hard life her mother lived because he was seldom at home and took other wives by whom he has other children.
5. She resents the way her father took control over her life when he refused to allow her to marry [X] in Indonesia even though he had never met [X].
6. She has never associated with her father for any lengthy period of time yet he controlled her life by making all the family decisions as to where they should live and when they should move.
7. Her father put her lives and those of her mother and siblings at risk when he forced them to enter Indonesia illegally from Malaysia and then to apply with a false story to the UNHCR.
8. Her father was the person who arranged for them to go by boat to Australia even though she would have been happy to apply to migrate because of her relationship with [X]. Her father denied her that chance by refusing to allow the pair to be together. 
9. She had no control over her life. Her parents, particularly her father, took the big decisions and [X], like her younger siblings at least, did as she was directed.   
10. She was forced to tell the fabricated story composed by her father and she could not refuse to do so as he directed her and the rest of the family.
33.	 The decision of the Minister, relevantly in para.[47] records as follows:
47. The non-compliance occurred at the time the visa holder applied for her XA866 Protection visa. She claims that, at this time, she was under the duress of her father, however no evidence has been provided in support of this.
34.	I am satisfied that the Minister had regard to the material before the Minister, including the assertions identified in para.[4] to [10] above on behalf of the applicant. I am satisfied that on a fair reading of the Minister’s decision, the Minister was referring to the fact that there was no compelling evidence to explain the lies told by the applicant in 2009 and not revealed until 2012.  It was open to the Minister, in my opinion, to make the finding that was made in para.[47]. The Minister had regard to the applicant’s asserted explanation in the Minister’s consideration in respect of the cancellation under s.109. Ground 1 is accordingly not made out.
35.	For these reasons, the further amended application is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street 

Associate:  

Date:  27 March 2015

CORRECTIONS
Paragraph 32 amended by deleting the names and substituting a pseudonym “X.”