Interpreting sections 104, 114, 140 & more

The First Appellant (Ms Chou) was the holder of a subclass 801 visa. Her son (Sebastian), who was the Second Appellant, was the holder of a subclass 820 visa. The Full Court of the Federal Court (FCAFC) described Sebastian's immigration status as follows at [67]:

by operation of s 78(1) of the Migration Act, Sebastian was taken to have been granted a subclass 820 visa because Ms Chou held that type of visa at the time of his birth ... The primary judge also noted the appellants’ submissions that by reason of reg 2.08 of the Migration Regulations, Sebastian was deemed to have been included in Ms Chou’s pending application for a subclass 801 visa. But for some unexplained reason Sebastian was not granted such a visa when his mother was granted that visa ...

The Department cancelled the subclass 801 visa of Ms Chou under s 109 of the Migration Act 1958 (Cth). As a consequence, it cancelled under s 140(2) the subclass 820 visa held by Sebastian.

Section 109 of the Migration Act 1958 (Cth) provided as follows:

109    Cancellation of visa if information incorrect

(1)    The Minister, after:

(a)    deciding under section 108 that there was non-compliance by the holder of a visa; and

(b)      considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

(c)      having regard to any prescribed circumstances;

may cancel the visa.

(2)      If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

For the purpose of s 109(1)(c), r 2.41 of the Migration Regulations 1994 (Cth) provided that the following circumstances are prescribed:

...

(j)    any breaches of the law since the non-compliance and the seriousness of those breaches;

...

Section 140 of the Migration Act 1958 (Cth) provided as follows:

140    Cancellation of visa results in other cancellation

(1)    If a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.

(2)    If:

(a)    a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas); and

(b)    another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;

the Minister may, without notice to the other person, cancel the other person’s visa.

(3)    If:

(a)    a person’s visa (the cancelled visa) is cancelled under any provision of this Act; and

(b)    the person is a parent of another person; and

(c)    the other person holds a particular visa (the other visa), that was granted under section 78 (child born in Australia) because the parent held the cancelled visa;

the other visa is also cancelled

Section 15(1) of the Births, Deaths and Marriages Registration Act 1995 (NSW) (BDMR Act) obliged both parents of a child to have the child’s birth registered:

15    Responsibility to have birth registered

(1)    The parents of a child are jointly responsible for having the child’s birth registered under this Act (and must both sign the birth registration statement) but the Registrar may accept a birth registration statement from one of the parents if satisfied that it is not practicable to obtain the signatures of both parents on the birth registration statement.

Section 57 of the BDMR Act provided as follows:

57    False representation

A person who makes a representation in an application, notice or document under this Act or in response to a notice under section 44 of this Act (Registrar’s powers of inquiry), knowing the representation to be false or misleading in a material particular, is guilty of an offence.

Maximum penalty—100 penalty units or 2 years imprisonment, or both.

Section 9 of the Status of Children Act 1996 (NSW) provided that "a child born to a woman during a marriage to which she is a party is presumed to be a child of the woman and her spouse".

In exercising its discretion to affirm the cancellation of the First Applicant's visa, the Tribunal found that she had breached s 57 of the BDRM Act:

The applicant told the Tribunal that she obtained the initial birth certificate for the child which identified the sponsor as the father of that child. She knew that information was incorrect, [because the Tribunal is of the view that she knew that the sponsor was not her son's biological father]. The Tribunal finds that the applicant has given false or misleading information to the Registry of Births, Deaths and Marriages. It is an offence under s.[57] of the Births, Deaths and Marriages Registration Act 1996. The applicant explained to the Tribunal that she could not disclose the paternity information to her husband but the Tribunal does not consider that the applicant's marital concerns justify the breach of the law.

The Tribunal affirmed the original decisions.

Some of the questions to the FCAFC were as follows:

Question 1: Should the term "only because" in s 140(2)(a) of the Migration Act 1958 (Cth) be "understood to mean that the person holds a visa by reason of another person having held a visa, in the sense that another person holding a visa was, ‘a condition precedent to the grant of the visa’"?

Question 2: Section 114(1) of the Migration Act 1958 (Cth) provided as follows: "If the Federal Court, the Federal Circuit Court or the Administrative Appeals Tribunal sets aside a decision under section 109 to cancel a person’s visa, the visa is taken never to have been cancelled". If the FCA sets aside the Tribunal's decision to affirm the cancellation of Ms Chou's visa, is her visa "taken never to have been cancelled", by reason of s 114(1)?

Question 3: Section 109 of the Migration Act 1958 (Cth) provided that the Minister may cancel a visa after "deciding under section 108 that there was non-compliance by the holder of a visa; and considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and having regard to any prescribed circumstances". One of such circumstances was prescribed under r 2.41(j) of the Migration Regulations 1994 (Cth), which provided as follows: "any breaches of the law since the non-compliance and the seriousness of those breaches". Was the circumstances described under r 2.41(j) a mandatory relevant consideration?

Question 4: Did the Tribunal err in finding that the meaning of "parent" in s 15 of the BDMR Act was confined to "biological parent"?

Question 5: Did the Tribunal fail to have regard to the statutory presumption of parentage arising from s 9 of the Status of Children Act?

Question 6: Can it be said that, "even if it was proved Ms Chou did know for certain, through a DNA test or otherwise, that Mr Ben was the biological parent of her unborn child, unless the evidence also established with certainty that Mr Benavides would not accept the child as his own if he knew it was not his biological child, then Ms Chou cannot be said to have provided a false or misleading representation to the Registrar"?

Question 7: In Australian law, is there a "general legal duty to disclose infidelity, including the biological parentage of children resulting from infidelity"?

Question 8: If the answer to Question 6 is "yes", can it be said that, "without a legal duty to inform Mr Benavides of her infidelity, nor her suspicions about the biological parentage of Sebastian, it is very difficult to see how Ms Chou could have provided a false or misleading representation to the Registrar unless and until Mr Benavides was aware of such suspicions and decided he did not want to be Sebastian’s parent"?

Question 9: In circumstances where "the AAT did not make a finding as to whether Mr Benavides was actually misled when he consented to being named as a parent on the information provided to the Registrar", was it "open to the AAT to find that she had committed an offence by misleading the Registrar" without first considering the issue?

Question 10: Did s 57 of the BDMR Act impose an objective test, namely whether Ms Chou knowingly make an objectively false or misleading representation in providing the required particulars under s 15?

Question 11: Was the Tribunal "vested with a discretion [under s 109(1)] whether or not to affirm the cancellation of Ms Chou’s visa, even if it found there had been a non-compliance with ss 101(b) or 104"?

Question 12: If the answer to Question 10 is "yes", was the Tribunal under a duty to consider the prescribed circumstances in r 2.41?

Question 13: If the answer to Question 11 is "yes", did that duty include an obligation to consider the submissions and evidence provided in response to the notice of intention to consider cancellation?

Question 14: Is a visa sponsor obliged under s 104 to notify the Department about a change in circumstance concerning the visa application in question?

Question 15: Would it be "wrong to give primacy to what is recorded in the transcript over what is stated in the reasons for decision"?

Question 16: If the answer to Question 14 is "yes", can a transcript reference simply reinforce what otherwise would be a fair and reasonable reading of the reasons for decision?

Question 17: Can it be said that the power under s 140(2) of the Migration Act 1958 (Cth) is discretionary and that ss 140(1) and 140(3) impose an obligation to cancel a visa?

Question 18: Can it be said that, at the time of Sebastian's birth he held a visa subclass 820 but not a visa subclass 801 (as his mother's application for visa subclass 801 still had not been decided), with the result that, pursuant to s 140(3) of the Migration Act 1958 (Cth), Sebastian's subclass 820 was "granted under section 78 (child born in Australia) because the parent held the cancelled visa"?

Question 19: Is s 140(3) a "power" in the relevant sense?

Question 20: Can it be said that the Tribunal did not have the power to cancel Sebastian's visa under s 140(2), "premised on the contention that as s 140(3) of the Migration Act provided a specific mechanism through which visas reliant upon the statutory presumption in s 78 were to be cancelled with certain express limitations, the more general power in s 140(2) was not available to the AAT, relying upon cases such as Anthony Hordern"?

Question 21: Can it be said that the Tribunal's decision concerning the cancellation of Sebastian's visa depended for its validity upon the validity of its decision concerning the cancellation of Ms Chou's visa, with the result that, if the latter decision was affected by jurisdictional error and is invalid, so was the former?

The FCAFC answered those questions as follows: