Federal Court (Full Court). Do ss 100 or 111 of the Migration Act 1958 (Cth) "make the question of whether the appellant’s incorrect answers were deliberate or inadvertent legally irrelevant in the context of" the discretion to cancel a visa under s 109? Are the circumstances prescribed under r 2.41 of the Migration Regulations 1994 (Cth) for the purpose of s 109(1)(c) non-exhaustive? If so, what are the types of permissible considerations?
In her visa application forms, the Appellant answered the following questions in the negative:
have you, or any member of your family unit included in this application, ever:
• been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?
• been charged with any offence that is currently awaiting legal action?
The FCAFC stated as follows:
1. The appellant ... is a Mexican national. She is the former partner of an Australian citizen, with whom she has a child. The child is a minor and is referred to within as Child A. Child A is an Australian citizen. He resides with the appellant and spends time with and communicates with his father. That arrangement is reflected in parenting orders made by consent by the Federal Circuit Court (‘FCC’) under the Family Law Act 1975 (Cth) (‘Family Law Act’). Child A is also the subject of an airport watch list order which will prevent him leaving Australia while it is current. The appellant will likely be removed from Australia consequential on the cancellation of her partner visa.
13. The grounds of appeal brought by the appellant are as follows:
(3) The [FCC] erred by failing to find that the Tribunal erred or acted beyond power by making a decision which had the effect of:
(a) frustrating, or was otherwise contrary to, a pre-existing order of a court, namely the final parenting order of the [FCC]; and/or
(b) ignoring a finding of, or making an inconsistent finding with, the [FCC], as to what was in [the Appellant's] young son's best interests.
(4) The [FCC] erred by failing to find that the Tribunal erred by making an illogical decision having regard to the terms of the [FCC’s] order, especially the record of an 'Airport Watch List Order prohibiting [[the Appellant's] young son] from leaving the Commonwealth of Australia'.
53 Relevantly to the issues raised in grounds 3 and 4, and as we have already referred to above, the appellant and [her former partner] have joint custody of Child A, and that child is prohibited from departing Australia. The parenting orders relevantly provide (in addition to the specific custody orders as to the living arrangements and access):
THE COURT ORDERS, BY CONSENT, THAT:
16. In the event a dispute arises between the father and the mother in respect to these orders, their implementation and/or other significant parenting dispute relating to [Child A] that cannot be resolved between the parties, the father and the mother are to attend upon the Family Relationship Centre (“FRC”), or Relationships Australia, or any such accredited Family Dispute Resolution service such as Family Dispute Resolution Services “FDRS”) to participate in family dispute resolution mediation and both the father and the mother are to make a genuine effort to resolve any disputes and attempt come to an agreement about any issues in relation to[Child A] before any further application to the Family Law Courts.
AND IT IS NOTED THAT:
C. The parties did not agree to the issue relating to discharging the Airport Watch List Order, prohibiting [Child A] from leaving the Commonwealth of Australia.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said, in the context of s 101 of the Migration Act 1958 (Cth), "central to any decision as to whether an answer is ‘incorrect’ is an understanding of the question being asked and the context in which the question is being asked"?
Question 2: Can it be said, in the context of s 101 of the Migration Act 1958 (Cth), that "determining the meaning of the question should be undertaken with a practical bent, without any need for legal research or advice"? In other words, can it be said that "the ordinary meaning of the words or phrases in a visa application form should not be lightly departed from"?
Question 3: Would the phrase "currently awaiting legal action" in relation to an offence "include any legal process relevant to and in connection with the offence that remains extant at the time the question is answered"?
Question 4: Section 100 of the Migration Act 1958 (Cth) provided as follows: "For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect". Section 111 provided as follows: "To avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent". Do these provisions "make the question of whether the appellant’s incorrect answers were deliberate or inadvertent legally irrelevant in the context of" the discretion to cancel a visa under s 109?
Question 5: Does the fact that the FCC made parenting orders under the Family Law Act limit the discretion conferred by s 109 of the Migration Act 1958 (Cth)? In other words, is the Tribunal, in exercising the discretion under s 109, bound to accept what any parenting orders describe the best interests of a child to be?
Question 6: Are the circumstances prescribed under r 2.41 of the Migration Regulations 1994 (Cth) for the purpose of s 109(1)(c) of the Migration Act 1958 (Cth) non-exhaustive? If so, could the Tribunal lawfully consider the best interests of the person whose visa was cancelled under s 109?
If the answer to the first part of Question 6 is "yes":
Question 7: Can the Tribunal have regard to lawful government policy for the purpose of the exercise of the discretion in s 109(1)(c) of the Migration Act 1958 (Cth)?
Question 8: Can the Tribunal have regard to "whether the visa would have been granted if the correct information had been given" for the purpose of the exercise of the discretion in s 109(1)(c) of the Migration Act 1958 (Cth)?
Question 9: Can the Tribunal have regard to "whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act" for the purpose of the exercise of the discretion in s 109(1)(c) of the Migration Act 1958 (Cth)?
Question 10: Can the Tribunal have regard to "whether the visa cancellation may result in Australia breaching its international obligations" for the purpose of the exercise of the discretion in s 109(1)(c) of the Migration Act 1958 (Cth)?
Question 11: Is the exercise of a discretionary power of the kind found in s 109 of the Migration Act 1958 (Cth) infected with jurisdictional error if it is legally unreasonable, illogical or irrational?
The FCAFC answered those questions as follows:
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