BAI v Minister for Immigration
[2016] FCCA 2688
•19 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAI v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2688 |
| Catchwords: MIGRATION – Review of former Migration Review Tribunal decision – whether Tribunal breached s.359A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.101, 104, 109, 359AA, 359A, 424A, 476 |
| Cases cited: SZNKO v Minister for Immigration and Citizenship [2010] FCA 297; (2010) 184 FCR 505 Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 |
| Applicant: | FAN BAI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2419 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 7 July 2016 |
| Date of Last Submission: | 7 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms A Mitchelmore |
| Solicitors for the Applicant: | Kinslor Prince |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 28 August 2014 and amended on 7 July 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2419 of 2014
| FAN BAI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 28 August 2014 and amended on 7 July 2016 seeking review of the decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 31 July 2014, which affirmed the decision of the delegate of the Minister to cancel the applicant’s Subclass 100 (Spouse) visa.
In evidence before the Court is the bundle of relevant documents filed, and tendered, by the Minister (“the Court Book” – “CB”, “RE1”) and the affidavit of David John Prince, solicitor, made on 27 June 2016 annexing a copy of the transcript (“T”) of the hearing before the Tribunal.
Background
The applicant is a citizen of the People’s Republic of China (“China”). On 4 January 2011 she was granted a Partner (Migrant) (Class BC) visa as the dependent of her mother in her mother’s partner visa application. She first entered Australia on that visa on 3 April 2011.
By letter dated 28 January 2014, a delegate of the Minister notified the applicant that her visa had been cancelled pursuant to s.109 of the Act (CB 27 to CB 33). Her visa was cancelled on the basis that she had not complied with ss.101 and 104 of the Act (CB 27). The applicant has filed written submissions in this matter which provide a fair summary of the delegate’s decision, I will rely on it here ([6] – [8] of the applicant’s written submissions):
“[6]…
a. On 7 July 2010, the applicant’s mother submitted a Partner (Migrant) (Class BC) visa application (Mother’s Spouse Visa Application). The applicant was described in that application as neither engaged nor in a de facto relationship; the form further advised that the applicant had never been married or in a de facto relationship. Responses to the same effect were provided in the Form 47A that accompanied the application.
b. On 28 September 2011, the applicant was named as the sponsor in a Partner (Migrant) (Class BC) visa application, for her husband, Mr Xin Zhang (Husband’s Spouse Visa Application). Documents which accompanied that application, including statements from the applicant, her husband and her stepfather, indicated that the applicant and Mr Zhang:
i. first met on 24 March 2009;
ii. decided that they wanted to commit to a long-term spouse or de facto relationship, and intended to marry, on 19 June 2010;
iii. lived in the home of the applicant’s grandmother from October 2010; and
iv. married in Beijing on 10 June 2011.
[7] On the basis of the information in the Husband’s Spouse Visa Application, the delegate found that the applicant and Mr Zhang were engaged from 19 June 2010. It followed, in the delegate’s view, that the information in the Mother’s Spouse Visa Application as to the applicant not being engaged at the time that Application was submitted was incorrect, and that the applicant had not complied with s 101(b) (CB 34).
[8] The delegate also found that the applicant had commenced a de facto relationship in October 2010, but had failed to update a departmental officer of the change in her circumstances before she first entered Australia. Accordingly, the delegate was satisfied that the applicant had not complied with s 104(1) of the Migration Act (CB 35). Having regard to the circumstances prescribed in reg 2.41 of the Migration Regulations 1994 (Cth), the delegate concluded that the reasons to cancel the applicant’s visa outweighed the reasons not to cancel her visa (CB 38).”
The applicant applied for review to the Tribunal on 3 February 2014. She was assisted and represented by a registered migration agent. She attended a hearing before the Tribunal on 21 May 2014.
The applicant’s representative submitted “supporting material” on 20 May 2014, which was described as material that “represents a significantly new case than the Tribunal has been aware of” (CB 94). Included in the material were statements from the applicant, her husband (“Mr Zhang”), and her stepfather. These statements advanced a different timeline regarding the relationship between the applicant and Mr Zhang to that set out in the spouse visa application.
The statements from the applicant, Mr Zhang and her stepfather stated that the differences between the timeline in Mr Zhang’s spouse application and the applicant’s initial application were due to “exaggerations” or “incorrect statements” (see CB 109 to CB 110, CB 145 and CB 162 to CB 163). They stated that they were the result of advice received from a “Mr Lin Tan”, a solicitor and migration agent, who had assisted the applicant and Mr Zhang in the making of the spouse visa application. The applicant stated that an assistant of Mr Tan told her it was necessary to make the application “as strong as possible”.
By letter dated 19 June 2014, the Tribunal invited the applicant to comment on or respond to information that it considered would be the reason, or part of the reason, for affirming the decision under review (CB 535). Relevantly, the Tribunal stated (CB 539):
“The Tribunal may find that you were represented in relation to both applications by a registered migration agent who is also a lawyer. The Tribunal may also find that the evidence before it indicates that the representative, Mr Lin Tang, a Migration Agent registered in Australia, with offices in both Sydney and Beijing. The Tribunal may find that information obtained from the Internet indicates that Mr Tang is a reputable lawyer from an established legal practise and that you and your family are now attempting to present him as providing you with advice to make false statements and statutory declarations to the Department. The Tribunal may find that it is not credible that he did so and that he presented your case based on the instructions that were given to him.”
The applicant’s representative subsequently requested that the Tribunal provide the actual information to which it referred (CB 551). In particular, the representative requested the material because “when the information is obtained from the Internet” it would be presumed that it was from “websites of which the Tribunal would not be in possession of details of who created those websites nor be in a position to independently verify the accuracy of the claims made on those sites” (CB 551). There is no indication in the evidence before the Court that the Tribunal responded to the request.
The Tribunal affirmed the delegate’s decision on 31 July 2014. Relevantly, while the Tribunal found that the applicant’s husband’s application was “accurate and truthful”, the subsequent version of events from the applicant, her husband and her immediate family was “not truthful” and had been “manufactured” in an attempt to establish that the applicant was a dependent of her mother at the time she was included in the mother’s spouse visa application ([57] at CB 612).
The Tribunal did not accept that the former migration agents (Mr Tan and Co) “who have offices in both Beijing and Sydney” and were “of Chinese ethnicity” would have “considered it necessary to provide false evidence to the [Minister’s] Department to ‘embellish’ the application” ([59] at CB 613). Further, the Tribunal did not accept that the agent, or his assistant, would have considered the case to be “weak”, or that they would have advised the applicant and her family that they “provide an entirely different set of dates, which may have then been tested by the Department if an interview was deemed necessary” ([60] at CB 613).
Relevant to the matter before the Court, the Tribunal referred earlier in its decision record to the request from the representative for the information ([48] at CB 610):
“It was also submitted that the Tribunal’s invitation to comment or respond on information from the Internet indicating that Mr Lin Tang is from a reputable firm, is information that the Tribunal is required to put to the applicant for comment and the ‘inference from the Tribunal is not rational or logical’ and if the Tribunal is suggesting that as a reputable lawyer he would not have been a party to suggesting false claims it has been pointed out orally to the Tribunal at the hearing that there are only two concrete facts which have already been established in relation to Mr Tang. He states that these are that Mr Tang was listed and acted on both the applicant’s mother’s application for a Partner visa in July 2010 and Mr Zhang’s application in September 2011 and he therefore acted on two applications in which he presented wholly contradictory information as to the relationship history. ‘That is, it is our very strong submission that the only reasonable and lawful inference that could be drawn from these facts is that Mr Tang is not a competent/lawyer/agent and that it would be ‘unreasonable’ for the Tribunal to come to the conclusion suggested in its letter in both the sense of ‘Wednesbury unreasonableness’ and legal unreasonableness’. The representative concludes by stating that whilst the Tribunal may well have serious doubts and suspicions about this case, the Tribunal would not be able to come to a ‘high level of satisfaction’ required to make a positive finding of fact, that the claims presented in Mr Zhang’s September 2011 Partner visa application are correct.”
Application Before the Court
The application before the Court, as amended on 7 July 2016, contains the following sole ground:
“In deciding to affirm the decision of the First Respondent, the Second Respondent (‘the Tribunal’) committed an error of law amounting to a jurisdictional error by failing to comply with the mandatory provisions of section 359A of the Act.
Particulars
(a) By letter dated 19 June 2014, the Tribunal invited the applicant to comment on, or respond to, information that it considered would, subject to her comments or response, be the reason, or part of the reason, for affirming the decision under review. That letter referred to ‘information obtained from the Internet indicates that Mr Tang (sic) is a reputable lawyer from an established legal practice and that you and your family are now attempting to present him as providing you with advice to make false statements and statutory declarations to the Department. The Tribunal may find that it is not credible that he did so and that he presented your case based on the instructions that were given to him’.
(b) The Tribunal did not raise the information with the applicant in the course of the oral hearing held on 21 May 2014.
(c) Section 359A(1)(a) of the Act required the Tribunal to give the applicant clear particulars of the information it considered would be the reason, or a part of the reason, for affirming the decision under review.
(d) The source of the information on the internet, and the content on the relevant website that indicated that the applicant's former agent was a reputable lawyer from an established legal practice, formed part of the information to which the Tribunal referred.
(e) In comply with its obligation in s 359A(1)(a) of the Act, the Tribunal was required to give the applicant details as to the source of the information and its content.
(f) Despite a request by the applicant, the Tribunal failed to comply with the obligation in paragraph (e).
(g) The Tribunal relied upon the information in affirming the decision of the First Respondent to cancel the applicant's visa under section 109 of the Act.”
Consideration
As is set out above in the outline of relevant background, the Tribunal was presented with two “versions of events” which it found to be “incompatible” ([57] at CB 612). There is no dispute between the parties concerning that finding by the Tribunal.
As part of the applicant’s mother’s application for a partner visa in 2010, the applicant claimed not to have been engaged to be married, nor contemplating marriage at that time. In 2011, the applicant, now a resident of Australia, was named as the sponsor in a partner visa application made by her husband. In that application, the applicant, and others, claimed that she was in a long term relationship at the time she had previously claimed not to be in such a relationship.
The applicant’s visa was cancelled by the delegate because the applicant had been found to have provided incorrect information in her visa application, in breach of s.101(b) of the Act and that she had failed to correct incorrect information in her application form in breach of s.104(1) of the Act. These findings formed the basis of the delegate’s decision to cancel the applicant’s visa pursuant to s.109 of the Act.
However, before the Tribunal, the issue was the incompatibility of the timelines she had provided (as explained at [15] above). In short, as stated above, the incompatibility is between the evidence provided in support of the applicant’s husband’s partner visa application in which she was his sponsor, and what the Tribunal found was “an entirely different version of events” provided to the Tribunal as to when the applicant and her husband met and formed the intention to marry.
The applicant’s representative before the Tribunal (in relation to the review of the cancellation of her visa) submitted that “the more persuasive version of events” was that provided by the applicant to the Tribunal, rather than the timeline provided to the Minister’s department.
The Tribunal found that the “accurate and truthful” version was that given to the Minister’s department in relation to the partner visa application by the applicant’s husband. It found that the subsequent version given to it was “not truthful”, and was “manufactured” in an “attempt to establish that she was a dependent of her mother at the time she was included in her mother’s Partner visa application which was lodged on 7 July 2010” ([57] at CB 612).
The Tribunal set out its consideration and reasons for reaching this conclusion. A part of the Tribunal’s consideration was that the Tribunal considered that the visa application “was prepared and presented by a registered migration agent, Mr Lin Tang & Co lawyers”. The Tribunal found that that application was “detailed and supported by considerable documentary evidence” ([58] at CB 612).
In their submissions to the Tribunal, the applicant’s representatives in relation to the matter of the cancellation of her visa, and relevant to the ground now before the Court, raised various matters in support of the applicant’s view as to which version should be favoured. In particular, they raised questions as to the “competence” of the migration agent (Mr Tan).
This was not the only matter raised by the applicant’s representatives, nor was it the only matter considered by the Tribunal. The following extracts from the Tribunal’s reasoning, therefore, should not be taken to be exhaustive of the totality of the Tribunal’s analysis in affirming the delegate’s decision to cancel the applicant’s visa. However, it is relevant background in understanding the applicant’s case now before the Court ([59] at CB 612 to [61] at CB 613):
“[59] The Tribunal considers that the evidence in the September 2011 application clearly establishes that the applicant and Mr Zhang had formed a relationship in June 2009 and that relationship had progressed from that time to one where they had travelled together with friends, travelled together to Beijing to meet the applicant’s family members, began living together and finally registered their marriage in June 2011. The Tribunal does not accept that the migration agents, who have offices in both Beijing and Sydney and are of Chinese ethnicity, would have considered it necessary to provide false evidence to the Department to ‘embellish’ the application. The applicant’s own evidence is that her current migration agent informed her that the application was ‘strong’ and did not need to be embellished. The Tribunal accepts that the application was strong and was supported by considerable documentary evidence which established that the applicant and Mr Zhang, a young couple, had met and developed their relationship, committed to the relationship, it was recognised and accepted by family members and they had a strong commitment to each other, evidenced by their decision to live together, marry and the applicant’s resignation from her job and travel to Malaysia to care for Mr Zhang following his accident.
[60] The Tribunal does not accept that the migration agent, or his assistant, would have considered the case ‘weak’ and does not accept that the applicant and her family members would have been advised that they provide an entirely different set of dates, which may have then been tested by the Department if an interview was deemed necessary, thereby making it likely that the applicant and her husband would make mistakes when asked about the dates. The Tribunal also considers that the submissions that the alternative version has the ‘ring of truth’ and more in accordance with Chinese custom than the version put forward in the initial application does not accord with the claim that it was the Chinese person from the migration agent’s who suggested that they change their version of events because it was not strong enough. The Tribunal does not accept that the former representative or his assistant would consider that the ‘true version’ of events, which it is now claimed is in accordance with Chinese custom, would need to be changed to one which it has since been claimed is not in accordance with Chinese custom. The Tribunal considers that persons from the firm, which is based in Beijing and Sydney, would be aware of Chinese customs and would not consider it necessary to alter a version of events which has the ‘ring of truth’ to it, to one which purportedly, as it is now claimed, does not. The Tribunal also does not accept that the applicant, her husband, or her stepfather, or her mother, who had relied on the agent in relation to a previous application, would have considered it necessary to fabricate evidence in circumstances where the relationship was clearly genuine. The Tribunal considers that the migration agents, having dealt with the applicant’s family on a previous occasion in relation to the first application, simply presented the version of events which was provided by the applicant and her family members.
[61] The Tribunal does not accept the submissions by the representative that the representative was ‘incompetent’ because he did not tell the applicants that there would be a problem with the visa because she had previously claimed to be a dependent of her mother. The Tribunal considers that these submissions are nonsensical. The application for the first Partner visa was made by the applicant’s mother in July 2010 and the application for the next visa was made by the applicant and Mr Zhang over a year later in September 2011. As stated above, the Tribunal considers that the former representative would have obtained the evidence as to the relationship and, having done so acted on his instructions, rather than fabricating a version of events which would then result in the applicant and Mr Zhang being exposed to difficulties in recalling those facts if questioned by a Department officer at an interview and also resulting in potential problems in relation to the grant of the previous visa. The Tribunal considers that the representative acted on instructions and provided dates given to him and the extent of his ‘incompetence’ was his failure to advise the applicant that the instructions given by her and her family meant that the Subclass 100 visa previously granted her may be jeopardised by the information in Mr Zhang’s visa application.”
The applicant’s ground directs attention to the Tribunal’s letter of 19 June 2014 where the Tribunal invited the applicant to comment on, or respond to, certain information (CB 535 to CB 541).
The letter included the following (CB 539):
“The Tribunal may also find that the evidence before it indicates that the representative, Mr Lin Tang, a Migration Agent registered in Australia, with offices in both Sydney and Beijing. The Tribunal may find that information obtained from the Internet indicates that Mr Tang is a reputable lawyer from an established legal practise and that you and your family are not attempting to present him as providing you with advice to make false statements and statutory declarations to the Department. The Tribunal may find that it is not credible that he did so and that he presented your case based on the instructions that were given to him. The Tribunal may find that you have done this in an attempt to establish that you did not provide incorrect information when you were included as a dependent of your mother in relation to her application for a Subclass 100 visa and that you did not fail to notify the Department of a change in your circumstances. The Tribunal may find that your failure to respond to the Department’s Notice of Intention to Consider Cancellation (NOICC), despite having a registered migration agent and appointed two other agents, was due to your desire to provide time to manufacture an alternative account of events. The Tribunal may find that the dates and timing in relation to your relationship with Mr Zhang Xin in the alternative account of events are conveniently all after the date of application and the date that you entered Australia on 3 April 2011.”
[Emphasis added.]
The applicant’s case is that the information that the Tribunal obtained from the Internet was “information” for the purposes of s.359A of the Act, and the Tribunal failed to give the applicant “clear particulars” of this information as required by s.359A(1)(a) of the Act.
The applicant also alleges that when regard is had to the transcript of the Tribunal hearing, the Tribunal did not utilise s.359AA of the Act at the hearing to discharge its obligation.
The applicant relied on SZNKO v Minister for Immigration and Citizenship [2010] FCA 297; (2010) 184 FCR 505 (“SZNKO”) particularly at [23] – [27] to argue that the information that the Tribunal gave to the applicant in its letter was of such generality, and lacking in detail, that the applicant was denied a fair opportunity to interrogate, or test, the information. That is, the Tribunal should have given the applicant further information as to the actual source from the Internet, or the actual content of the information, such that the applicant would have been given a meaningful opportunity to comment on, or respond to it.
However, it is not necessary to pursue the question of whether the Tribunal orally discharged any obligation at the hearing, or whether the information referred to in the letter was of sufficient clarity. That is because I do not agree with the initial premise on which the applicant’s case is based, in that the Tribunal’s impugned reference in its letter is “information” caught by the obligation in s.359A of the Act.
I do agree with the Minister that the direction provided by the High Court in Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 (“SZLFX”) concerning s.424A of the Act, which is analogous to s.359A of the Act, is directly relevant to the circumstances of this case and provides, in those circumstances, the answer to the applicant’s ground.
In SZLFX, which in my respectful view is also to be read with the High Court’s judgement in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”), the High Court stated at [24]‑[25]:
“[24] As a Full Court of the Federal Court of Australia (Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration and Citizenship, s 424A depends on the RRT's ‘consideration’, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had ‘considered’ or had any opinion about the file note.
[25] As observed equally correctly by Heerey J in MZXBQ v Minister for Immigration and Citizenship, s 424A speaks of information which ‘would’, not which ‘could’ or ‘might’ be the reason or part of the reason for affirming the decision under review.”
The reference (as set out above) in the Tribunal’s letter of 19 June 2014 to the information from the Internet does not of itself lead to the conclusion that the obligation in s.359A of the Act was engaged. As was, in my respectful view, made clear in SZLFX, the relevant test is one which involves information which “would be”, not “could” or “might” be, the reason, or a part of the reason, for affirming the delegate’s decision.
The Tribunal’s language in the relevant paragraph from the letter as extracted above (at [24]) is consistent in its use of the word “may”. I respectfully understand the point being made in SZLFX as being the distinction between the certainty, implied in the use of the phrase “would be”, and the possibility, implied in the use of the phrases “could be” or “might be”.
As was stated at [21] in SZLFX, the High Court in SZBYR stated at [15]:
“This then requires close attention to the circumstances in which s 424A is engaged. Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal's obligation is limited to the written provision of ‘particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’. What, then, was the ‘information’ that the appellants say the Tribunal should have provided? In their written submissions, the appellants appeared to focus on the requisite ‘information’ as being the ‘inconsistencies’ between their statutory declaration and oral evidence. However, in oral argument they focused on the provision of the relevant passages in the statutory declaration itself, from which the inconsistencies were later said to arise.”
The Minister submitted that the language used by the Tribunal at the impugned part of the letter was not expressive of a “concluded view” by the Tribunal as to what “would be” the reason, or a part of the reason, for affirming the delegate’s decision.
Rather the Tribunal was seeking to convey that it may find that information obtained from the Internet indicated that the migration agent was a reputable lawyer from a legal practice in Sydney and Beijing. The inference was that this “may be” indicative of a contrary or inconsistent view to the position that the applicant was seeking to promote that the agent had provided her with advice to make false statements.
It is important to note what the High Court stated in SZBYR at [17] (see also SZBYR at [15] as set out above):
“the use of the future conditional tense (‘would be’) rather than the indicative strongly suggests that the operation of s.424A(1)(a) of the Act is to be determined in advance - and independently - of the Tribunal’s particular reasoning on the facts of the case”.
It is clear that the Tribunal’s letter of 19 June 2014 was in advance of, and independent of, the Tribunal’s reasoning in the circumstances of this case. The Tribunal did refer in its letter to information from the Internet. However the letter must be looked at holistically.
In this light, in its “introduction” in the letter, the Tribunal does state (CB 535):
“In conducting its review, the tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.”
This is immediately followed by (CB 535):
“Please note, however, that the tribunal has not made up its mind about the information.”
Further it is clear that the purpose of the letter was to invite comment on, or response to, the matters raised. To assume that the Tribunal had formed a concluded view that the information would be the reason or a part of the reason for affirming the delegate’s decision, despite the language used after its initial and introductory statement of the law, would be to suggest that the Tribunal was not open to persuasion by whatever comments or response the applicant might give.
In SZLFX, the High Court did have regard to the Tribunal’s reasons (see at [26]). The relevant item said by the applicant in that case to contain information caught by s.424A was a “file note” on the Tribunal’s file. The primary judge, amongst other things, found that “no inference that the file note was not material to the decision should be drawn from the RRT’s failure to mention the file note” (at [22]). The High Court found this approach was “flawed” (at [23]).
In the current case, while the Tribunal made reference to the information from the Internet in its letter of 19 June 2014, there was no reference to this in its analysis in its decision record. However, in the current case, the applicant says that the Tribunal referred to the information from the Internet in its letter. That fact is distinguishable from the circumstances in SZLFX where the Tribunal made no reference whatsoever to the file note in any letter to the applicant or its published reasons.
The Minister’s argument was that there was no reference to “information” from the Internet concerning the applicant’s former migration agent in the Tribunal’s decision record. Further, in contrast to what was said in the letter, the Tribunal’s reasons make no reference as to whether the former agent was a reputable lawyer from an established legal practice.
Rather, the Tribunal rejected the applicant’s claim with its finding that the former agent followed the instructions from the applicant, and her mother, when preparing the earlier 2010 visa application. The Tribunal also rejected the applicant’s submission, as “nonsensical”, that the former agent was “incompetent” because he did not tell the applicant that there would be a problem with the visa because she had previously claimed to be a dependent of her mother.
The applicant’s argument was that the absence of any express references to the Internet “information” in the Tribunal’s reasons for decision is not determinative of the issue of whether the obligation in s.359A of the Act was enlivened in relation to that matter. That is accepted.
The Tribunal’s published reasons may assist in the determination of the Tribunal’s “opinion” as at an antecedent time as to whether it considered a certain matter as information that would be the reason or a part of the reason, for affirming the delegate’s decision (SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890, SZMPT v Minister for Immigration and Citizenship [2009] FCA 99; (2009) 107 ALD 121, SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 60; (2009) 177 FCR 29, SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198; (2007) 164 FCR 578, SZTPY v Minister for Immigration and Border Protection [2015] FCA 565 at [18] per Davies J (see also SZTPW v Minister for Immigration and Border Protection [2015] FCA 564 at [24] per Davies J), MZYIA v Minister for Immigration and Citizenship [2011] FCA 642; (2011) 121 ALD 291 at [26] per Gray J and SZRCG v Minister for Immigration and Citizenship [2013] FCA 483 at [17] per Rares J).
In the current case the language used by the Tribunal in its letter, when seen in light of the Tribunal’s subsequent reasoning, leaves the reference to the Internet in the Tribunal’s letter as a possibility (“might” or “could”) not the certainty required by the statute (“would be”).
For the sake of completeness I note that the mere fact that the Tribunal sent its letter, with the reference to the “Internet”, is not determinative or decisive of whether that material constituted “information” for the purposes of s.359A of the Act (see SZTNLv Minister for Immigration and Border Protection [2015] FCA 463 at [49]).
The sole ground of the amended application is not made out because the Tribunal cannot be said to have erred in the exercise of its jurisdiction in relation to s.359A of the Act when that section was not engaged.
Although that is sufficient to dismiss the application it is appropriate to also consider the other matters which were the subject of submissions.
The Minister submitted that a second, and separate, basis on which to reject the applicant’s ground is that the reference to the Internet was not of such character as to be caught by s.359A(1) of the Act as it did not in its terms “constitute a rejection, denial or undermining of the applicant’s claims”. Noting that relevantly the applicant’s claims were directed to the central issue for the Tribunal to determine, that is, whether the visa should or should not be cancelled.
In SZBYR at [17] the High Court relevantly stated (see also SZLFX at [22]):
“Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration ‘would be the reason, or a part of the reason, for affirming the decision that is under review’. The statutory criterion does not, for example, turn on ‘the reasoning process of the Tribunal’, or ‘the Tribunal's published reasons’. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (‘would be’) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The ‘reason, or a part of the reason, for affirming the decision that is under review’ was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be ‘information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.”
The Minister’s argument was that general information from the Internet about the migration agent indicating that he was a reputable lawyer from an established legal practice did not in its terms constitute a rejection denial or undermining of the applicant’s claim that the agent had advised her to provide false claims.
The Minister relied on various authorities to argue that the general information from the Internet was not of “dispositive relevance” to the applicant’s claim as required as follows:
1)SZTNL v Minister for Immigration and Border Protection [2015] FCA 463 (“SZTNL”) at [52]:
“Neither of the two relevant pieces of information constituted ‘information’ for the purposes of s 424A(1). Neither Mr X’s letter nor the appellant’s evidence in relation to it given to the delegate comprised a rejection, denial or undermining of the appellant’s claim to be a person to whom Australia owed protection obligations. The relevant information was not, of itself, of ‘dispositive relevance’ to the appellant’s claims for protection, nor did that information, by itself, undermine his claims. Rather, the information, when viewed against other statements made by the appellant, cast doubt on the appellant’s credibility. I accept the Minister’s submission that information merely going to credibility does not fall within s 424A. As Heerey J observed in MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483 at [29]:
It can also be noted that the section speaks of information that ‘would’ be the reason etc, not ‘could’ or ‘might’. This is another indication that information merely going to credibility is not within the section. An applicant may be disbelieved on some issues, but believed on others, or the application may be determined one way or the other by issues unrelated to credibility. Lack of credibility in itself does not necessarily involve rejection, denial or undermining of an applicant's claims.”
2)Minister for Immigration and Border Projection v SZTJF [2015] FCA 1052; (2015) 149 ALD 552 (“SZTJF”) at [31]:
“There are two matters to note concerning the information referred to in [21] of the decision record. First, it is not information which contains a rejection, denial or undermining of the first respondent’s claims to protection as summarised in [7] above. Put another way, the information was not of ‘dispositive relevance’ to the Convention claims advanced by the first respondent: MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483 at [27]-[29]; SZMDS v Minister for Immigration and Citizenship [2009] FCA 210; (2009) 107 ALD 361 at [14]. It was simply information about the first respondent’s travel arrangements and travel to Australia and her living arrangements in Australia. Secondly, as the Minister submits, the information itself is ‘mere inconsistency’ or ‘evidence that [came to be] relied upon to find inconsistency’. I reject the first respondent’s submissions to the contrary.”
3)ATP15 v Minister for Immigration and Border Protection [2016] FCAFC 53 (“ATP15”) per Tracey, Flick and Griffiths JJ at [42]:
“It is well settled that, for s 424A(1)(a) of the Act to be engaged, the material in question must in its terms contain a ‘rejection, denial or undermining’ of the review applicant’s claims (see SZBYR & Anor v Minister for Immigration and Citizenship [2007] HCA 26;(2007) 96 ALD 1 at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 at [22] per French CJ, Heydon, Crennan, Kiefel and Bell JJ). The information provided in Mrs B’s response was largely information about her travel arrangements, travel to Australia and living arrangements in Australia and was not of a character which was caught by s 424A(1) (see, in not dissimilar circumstances, the observations of Yates J in Minister for Immigration and Border Projection v SZTJF [2015] FCA 1052 at [31]- [32]).”
The applicant argued that the information from the Internet was information that went to the agent’s reputation and directly undermined the applicant’s claim as to the “correct” timeline.
The applicant sought to distinguish ATP15 (the majority judgment) from the circumstances of this case as follows. In ATP15 the relevant question before the Tribunal was whether the applicant had fabricated her claims to protection. In that case, the issue of s.424A of the Act arose in circumstances where the applicant’s claims to protection were in similar format to another protection claimant who arrived in Australia on the same flight as the applicant. That applicant said she did not know this other person was travelling to Australia to seek protection. The relevant ground of review before the FCCA was whether the applicant had been provided with “clear particulars” about the “other person’s application” which the Tribunal said was in similar format and contained similar claims.
As set out above, the Minister relied on ATP15 at [42]. In the current case, the applicant submitted that in ATP15 the information did not go to the applicant’s claims. The information went to another person’s claims that bore on the assessment of the applicant’s credibility. In the current case, however, the information went to the finding that the migration agent presented her case based on her instructions, and not, as she claimed, presented her case on advice to her to embellish her claims. In essence, the applicant now says that was a positive finding by the Tribunal that directly undermined her claims. The applicant made a similar submission in relation to SZTJF and emphasised the finding in that case at [31] (see above and see also SZTNL).
In short, the applicant’s position is that the information in this case, as opposed to all the authorities on which the Minister relied, was “central” in its terms as to whether the claim made by the applicant was to be accepted. That is, the undermining of the applicant’s explanation that the migration agent told her to embellish, and that this led to the provision of “incorrect information”.
I agree with the Minister’s submission that the information does not, in its terms, constitute an undermining or rejection or denial of the applicant’s claims.
The Tribunal’s letter refers to information from the Internet that the migration agent was a “reputable lawyer from an established legal practice”. To determine whether this falls within the description of “information” in s.359A of the Act, attention must be given to the applicant’s relevant claims and the issue before the Tribunal.
The issue for determination by the Tribunal was whether the decision to cancel the applicant’s visa should be affirmed or not. The applicant had presented two inconsistent chronologies (timelines) as to when she formed the intention to enter into the relationship with the person whom she was seeking to sponsor for a visa as her spouse. One was given in connection to the application for the applicant’s husband’s application for a spouse visa, and the other was given to the Tribunal in connection to the matter of the cancellation of her visa, which she had obtained as a dependent in her mother’s application for a visa.
Part of her explanation for this inconsistency was that the migration agent’s office regarded the application for the husband’s spouse visa as being “weak” and, therefore, advised her to provide a chronology which was not true. Thus, the chronology she subsequently provided to the Tribunal in relation to the cancellation of her visa was the “correct” chronology.
The information from the Internet does not directly dispose of the applicant’s claim. It was information about the migration agent, not directly about the applicant’s explanation for the inconsistency in her account. That is, that the applicant was advised to make claims that were not true.
As the Minister submitted, it may be that the information from the Internet “could have” or “might have” led to a chain of reasoning that led to the rejection of the applicant’s claim, or explanation. However, the focus must be on whether, “in its terms”, the information constitutes a rejection, denial or undermining of the applicant’s claims. In this light, the information from the Internet lacks the immediate specificity to be said to have “dispositive relevance” to the applicant’s claim.
I should note that, as set out above, in relation to this particular matter the applicant sought to distinguish the facts of this case from the facts presented in the authorities relied on by the Minister. However, I did not understand the Minister to argue that the facts were similar. Rather the Minister’s reference to these authorities was to illustrate the repeated application of the legal principle enunciated in SZBYR. That principle, and its application, in my respectful view, does not derive from one set of facts, but can apply to any set of facts where the impugned information does not in its terms constitute a rejection, denial, or undermining of the applicant’s claims. It does not do so in this case. This is a second and separate reason for finding that the Internet information was not caught by s.359A of the Act.
The Minister also submitted that a third, separate and independent, basis on which the application may be dismissed was that even if the Internet information was caught by s.359A of the Act, the Tribunal discharged its obligation when it wrote to the applicant on 19 June 2014 and gave “clear particulars” to the applicant of that information. The Minister relies on ATP15 (at [38] – [39]) to assert that the particulars provided in the Tribunal’s letter were “clear particulars” for the purposes of s.359A of the Act.
I should also note, given the submissions made to the Court, that the question of the competence of the migration agent/lawyer was raised in submissions by the applicant’s “new” representatives before the Tribunal. The Tribunal addressed the submissions at [61] of its decision record (at CB 613).
These submissions were made on 14 July 2014 (CB 546 to CB 596). That is after the time of, and indeed in response to, the Tribunal’s letter of 19 June 2014 which contained the reference to the “information” from the Internet.
The relevant focus for current purposes must be on what the Tribunal considered to be the reason or a part of the reason for affirming the delegate’s decision. That, consistent with what was said in SZBYR, directs attention to a point antecedent to the Tribunal’s published reasons. However, what is relevant at that time is what the Tribunal, and not some other party, considered to be relevant to its decision.
In this light, what the Tribunal “considered” as at the time of its letter was not whether the agent was “incompetent” (that was subsequently raised by the applicant’s representative), but whether he was a reputable lawyer from an established legal practice.
The applicant now argues that the Tribunal should have provided the source of that information, and its “content”, such as to provide a meaningful opportunity to the applicant to respond to the information (with reference to SZNKO at [23] and SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90 at [23]). Although the Tribunal provided the source of the information as being from the Internet, I understood the applicant’s complaint now to be that that was not of sufficient description to enable a meaningful response. As stated above, the argument appeared to be that the Tribunal should have provided details of the website, or sites, it accessed and the actual content.
In the circumstances, I do not agree with the applicant’s submission. The essence of what was said in the Tribunal’s letter was that the information obtained from the Internet was information that indicated that the migration agent who formerly assisted the applicant was a reputable lawyer from an established legal firm.
This is not a case where the Tribunal referred to information without disclosing its source. With that disclosure the applicant, or her representatives, could have interrogated the Internet, for example, with a “google” search using the agent’s name, or his firm’s name, and locations, which were all plainly known to the applicant and her then representatives. While there may be circumstances, given the amorphous and transient nature of information found on the Internet, where such a reference would not be sufficient (see for example SZRTP v Minister for Immigration & Anor [2013] FCCA 449), in the current circumstances the identity of the lawyer/agent and his firm was known. There is nothing to indicate that the applicant was prevented from conducting any relevant Internet search using those particulars.
In the circumstances, the Tribunal’s reference to the “Internet”, as opposed to having received the information from another (non‑Internet) or anonymous source, was sufficient to provide the applicant with a meaningful opportunity to comment.
The essence of what the Tribunal said was “indicated” about the former agent/lawyer was clear in its terms. If the applicant had contrary information there was no reason not to provide it. Nor was there any reason not to interrogate the Internet, as the Tribunal had done, to see if any such contrary information was available.
Conclusion
The application to the Court should be dismissed as the sole ground is not made out. I will make an order accordingly.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 19 October 2016
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