Case: Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218 ; (2005) 149 FCR 1 
Outcome: cited
The second ground contended that the notice failed to comply with s 107 of the Act as it did not set out the purported non-compliance by the appellant. It was contended that the notice did not specify which subsection of s 101 of the Act was breached by the appellant and did not state the Minister was considering cancelling the visa. Instead, it was framed in terms of a possible breach coming to the Department's attention. Reliance was placed on the decision of Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218 ; (2005) 149 FCR 1 which concerned the requirements of a notice under s 119 of the Act. 60 The third ground complained that the Tribunal failed to take into account a relevant consideration, namely the appellant's contribution to the community. It was contended that s 109(1)(c) of the Act required the Tribunal to have regard to any prescribed circumstances which, by reason of reg 2.41, included the appellant's contribution to the community. 61 The Federal Magistrate considered each of the grounds but was of the view the Tribunal's decision did not disclose jurisdictional error. 62 His Honour found the notice complied with requirements of the Act and, in particular, s 107 by setting out particulars of the breach. The Federal Magistrate distinguished Uddin [2005] FCAFC 218 ; 149 FCR 1 and said that the requirements for a notice under s 119(1) differ from those for a notice under s 107(1). Because s 107(1)(a) of the Act required the Minister to give particulars "of the possible non-compliance", his Honour was of the view that the opening words of the notice that had been sent to the appellant formed part of the particulars of the possible non-compliance. The notice, appropriately, set out the whole of s 101 because there was a possibility that both paragraphs (a) and (b) of that section had been breached. The appellant was on notice that he would have breached ss 101(a) and 101 (b) of the Act by failing to disclose details of his de facto relationship and child. Consequently, the Federal Magistrate found that the notice provided a description of the possible non-compliance. 63 In relation to the alleged failure by the Tribunal to comply with s 359A of the Act, the Federal Magistrate found the Tribunal did not rely on the information given in the visa application. His Honour said that at the time of the application the answers given were correct. The Tribunal, he found, relied on the answers about the appellant's child in the 17 September 2001 interview and the other materials to show that those answers were incorrect. The appellant had given true answers at the time of application. However, because his circumstances had changed, his replies to the same questions on 17 September 2001 were untruthful. His Honour was of the view that the giving of the false information in 2001 was because of the provisions of s 99 and that this was sufficient to constitute a breach of s 101(b) of the Act. 64 The Federal Magistrate accepted that if the Tribunal had failed to take into account a relevant consideration that would amount to jurisdictional error if the decision maker was bound to take into account that matter in making the decision. 65 Regulation 2.41(k) requires the Tribunal, in considering the prescribed circumstances in s 109(1)(c) of the Act, to have regard to "any contribution made by a holder to the community". The Federal Magistrate observed the appellant's contribution to the community was generally referred to by the Tribunal. Although his contribution was not specifically mentioned by the Tribunal, his Honour did not consider it was necessary to do so. In any event, the Federal Magistrate noted the Tribunal found that any positive factors were outweighed by the adverse findings regarding the false evidence. 66 His Honour dismissed all three grounds in the application and dismissed the application. 67 The notice of appeal raises the same grounds argued before the Federal Magistrate. They are: 1. The Court erred in finding that a letter dated 2 June 2003 and said to be issued pursuant of s 107 of the Migration Act 1958 (Cth), complied with the requirements of that section. 2. The Court erred in finding that the second respondent complied with s 359A Migration Act 1958 (Cth) by failing to take give the requisite notice in relation to Q61 and Q67 of Form 47 completed by the Appellant. 3. The Court erred in finding that the second respondent took into account matters made relevant by Migration Regulation 2.41(k); being the Appellant's contributions to the community by: (i) taking part in some activities organized by the Chinese community, including the Chinese Migration Welfare Association; and (ii) joining some 'local party's functions'. 68 On appeal the appellant contended, as he had before the Federal Magistrate, that the notice purportedly issued under s 107 of the Act did not comply with the statutory obligations imposed by s 107. It did not, so it was contended, because the notice opened: "It has come to the Department's attention that you may not have complied with s 101." The notice did not, it was submitted, comply with s 107 and state that the Minister considered that the visa holder had not complied with ss 101, 102, 103, 104 or 105, or with subsection 107(2) in response to a notice under the section. 69 I should mention one complaint which was not made by the appellant. The appellant did not seek to rely upon the fact that the notice was given by a woman in the NSW Character Section of the Department of Immigration and Multicultural and Indigenous Affairs who did not claim to be a delegate of the Minister. In other words, the appellant did not rely upon the absence of proof of the author's delegated power. It was sufficient, it was conceded, if in fact the author was the delegate of the Minister. 70 The appellant contended before the Federal Magistrates Court, and again on appeal, that in construing s 107 the Court could have regard to the construction which has been given to s 119 in Uddin [2005] FCAFC 218 ; 149 FCR 1. 71 That decision is not directly on point because s 119 is not in pari materia with s 107. Section 119 obliges the Minister in giving notice to notify the visa holder "that there appears to be grounds for cancelling [the visa] and give particulars of those grounds and of the information ... because of which the grounds appear to exist." Section 107, on the other hand, obliges the Minister to give a notice "giving particulars of the possible non-compliance." There is in s 107 no obligation to state the grounds. However, some aspects of the Court's reasons in Uddin [2005] FCAFC 218 ; 149 FCR 1 are instructive. 72 In my opinion, s 107 is only engaged where the Minister, or relevantly a delegate of the Minister, has concluded that the holder of a visa has not complied with one of the sections or subsection mentioned in s 107(1). It is only in that case that the Minister or the delegate is entitled to give notice to the visa holder in accordance with that subsection. Section 107(1) is engaged because the Minister, or a delegate of the Minister, has reached a state of mind where they consider that the holder of a visa has not complied with a relevant section. Those words indicate the circumstances in which a notice may be given: Uddin [2005] FCAFC 218 ; 149 FCR 1 at [24] . 73 It follows therefore that if a notice is to be given under s 107 of the Act, the Minister or the Minister's delegate must have reached a state of mind whereby the Minister or the Minister's delegate considers that one or more of the sections or the subsection mentioned in s 107(1) has not been complied with. If the Minister or the Minister's delegate only had to be of a state of mind that (as this notice said) the appellant may have not complied with s 101, s 107(1) would read: If the Minister considers that the holder of a visa ... may not have complied with section 101 ... 74 Section 107(1)(a) does speak of "possible non-compliance". However, that, in my opinion, does not mean that the Minister or the Minister's delegate only has to suspect that there has been non-compliance. The Minister or the Minister's delegate must consider that there has actually been non-compliance before either one is entitled to give the notice.