Chang v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 824
•6 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chang v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 824
File number(s): SYG 698 of 2020 Judgment of: JUDGE KAUR - BAINS Date of judgment: 6 September 2024 Catchwords: MIGRATION – jurisdictional error – incorrect information in visa application – cancellation decision –Administrative Appeals Tribunal – alleged failure to give invitation to attend Tribunal hearing – application dismissed. Legislation: Migration Act 1958 (Cth) ss 99, 101, 107, 109, 338, 360, 360A, 362B, 379A, 379C, 476, 477
Migration Regulations 1994 (Cth) reg 2.41
Cases cited: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of hearing: 28 August 2024 Place: Sydney Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Ms M Teo of Australian Government Solicitor Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 698 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHANG LIP TEE
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR - BAINS
DATE OF ORDER:
6 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The Application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Kaur-Bains
On 11 August 2016 the Applicant was granted a TU subclass 572 Vocational Education and Training Sector visa (the visa). On 7 June 2017 the visa was cancelled by the delegate of the Minister under s 109(1) of the Migration Act 1958 (Cth) (Act). This was on the basis that the Applicant did not comply with s 101(b) of the Act and provided incorrect information in the application for a visa. That decision was affirmed by the Second Respondent (Tribunal) on
20 February 2020.
The Applicant seeks judicial review of the Tribunal’s decision. This Court has jurisdiction to determine this matter pursuant to s 476 of the Act. The application for review has been brought within the time set out in s 477 of the Act.
BACKGROUND
The Applicant is a citizen of Malaysia who relevantly first arrived in Australia on 30 May 2013 on an Electronic Travel Authority visa. The Electronic Travel Authority visa expired on
29 August 2013. The Applicant stayed unlawfully in Australia between 30 August 2013 and 10 December 2015. On 11 December 2015 he was granted a Bridging E visa and departed Australia on 17 December 2015.
On 24 May 2016 the Applicant re-entered Australia on a further Electronic Travel Authority visa. On 28 June 2016 the Applicant’s wife, Ms Ai Luan, lodged an onshore application for the visa with the Applicant included as her dependent. In the visa application form Ms Ai Luan provided the following information:
(a)The Applicant’s date of birth as 27 May 1979.
(b)Answered “no” to the question in the application “Has any applicant ever been removed or excluded from any country (including Australia)?”
(c)Answered “no” to the question in the application “Has any applicant overstayed a visa in any country (including Australia)?”
(the incorrect information)
In the application reference is made to a migration agent, Xiao Wang migration registration number 1466166, as being authorised to receive communications on behalf of Ms Ai Luan from the Department.
On 11 August 2016 the Applicant was granted the visa.
On 8 and 11 May 2017 emails were sent to the Applicant asking him to provide an address where “an important formal written notification about [the Applicant’s] TU572 visa” could be sent. By email dated 12 May 2017 the Applicant provided the email address [email protected].
By email dated 15 May 2017 sent to the email address [email protected], the Department sent the Applicant a Notice of Intention to Consider Cancellation (NOICC) under s 107 of the Act. The NOICC informed the Applicant that a delegate of the Minister considered that the Applicant had not complied with s 101(b) of the Act, which required that no incorrect answers be provided in the application form. The NOICC set out the following:
On 31 August 2016, your true identity came to the attention of the Department. On 7 April 2017 a facial image comparison was conducted by a Departmental specialist. The following photos were compared by the Department’s Identity Resolution Centre:
•Photo taken on 15 June 2016 for Lip Tee Chang’s (born 27 May 1979) subclass 572 visa application;
•Passport photo from Mr Lip Tee Chang’s (born 27 May 1979) Malaysian passport (number: A37685100); and
•Passport photo from Mr Lip Tee Chang’s (born 7 March 1979) Malaysian passport (number: A22666000).
The same Identity Number ‘790307075189’ was recorded on the biodata page for each of the Malaysian passports listed above (numbers: A37685100 and A22666000).
A Facial Image Comparison Specialist determined that Mr Lip Tee Chang (born 7 March 1979) and Mr Lip Tee CHANG (born 27 May 1979) ‘represent the same person’.
Departmental records show that on 30 May 2013 you first arrived in Australia as Mr Lip Tee Chang born 7 March 1979, holding a class UD subclass 601 Electronic Travel Authority visa. This visa expired on 29 August 2013. You held the status of unlawful non-citizen between 30 August 2013 and 10 December 2015. On 11 December 2015 you were granted a Bridging E visa. On 17 December 2015 you departed Australia. Since you had overstayed your visa you were subject to Public Interest Criterion 4014 which means that you were barred from making any further visa applications for three years from date of departure.
The NOICC further referred the Applicant to s 99 of the Act which provided that:
99 Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
The NOICC also noted the correct responses to the visa application were as follows:
•To answer ‘7 March 1979’ to the question ‘Details of family unit member – date of birth’.
•To answer ‘yes’ to the question ‘Has any applicant ever been removed, deported or excluded from any country (including Australia)?’ as you have been excluded from Australia for a three year period.
•To answer ‘yes’ to the question ‘Has any applicant ever overstayed a visa in any country (including Australia)?’ as you were an unlawful non-citizen between 30 August 2013 and 10 December 2015.
The Applicant was invited to give a written response concerning the matters raised in the NOICC.
On 25 May 2017 in an email from “Kathy Lee”, the Applicant responded to the invitation from the delegate and provided a response to the NOICC, in summary, as follows:
(a)Admitting he had overstayed his previous visa issued in May 2013.
(b)Admitting he knew he had changed his identity unlawfully but did so as he believed that he could have a better opportunity to restart his life in Australia with his partner.
On 7 June 2017 the Applicant was given a notification of cancellation under s 109 of the Act and sent a record of the decision by the delegate.
On 13 June 2017 the Applicant applied to the Tribunal for merits review of the delegate’s decision. The application for review noted correspondence details for the Applicant, as being the email address [email protected].
On 9 December 2019 the Tribunal emailed the Applicant at [email protected] inviting him to attend a hearing before it scheduled for 19 February 2020. In the Tribunal’s invitation, the Applicant was informed that any additional documents or information were to be provided by 12 February 2020. By email dated 13 January 2020, from the email address “Kathy Lee”, to the Tribunal, the email said: “I just made a decision that I won’t attend the hearing, and I wish you can kindly assess the application based on your current documents.”
By email letter dated 21 January 2020 addressed to the Applicant at [email protected], the Tribunal acknowledged receipt of the Applicant’s correspondence declining the Tribunal’s offer of attending a hearing. In that letter the Tribunal gave the Applicant a further invitation to attend a hearing. On 22 January 2020 the Applicant by way of response from the email address “Kathy Lee”, responded to the Tribunal as follows:
Dear officer, thank you very much for your email again to confirm with me. I am confirming not to attend the hearing and I have no document to submit at the stage.
TRIBUNAL’S DECISION
The Tribunal noted at [20] that on 9 December 2019, the Tribunal invited the Applicant to give oral evidence and present arguments at the hearing in relation to the cancellation decision. At [21] the Tribunal noted that on 13 January 2020, the Applicant advised the Tribunal in writing that he did not wish to attend the hearing and he consented to the Tribunal proceeding to make a decision on the information before it. At [23] the Tribunal noted that on 22 January 2020 the Applicant again confirmed he did not wish to attend a hearing and there was no further documents he had to submit.
The Tribunal proceeded to determine the matter on the material before it and affirmed the visa cancellation decision for the following reasons:
(a)The Tribunal noted the visa cancellation power under s 109 of the Act was conditional upon the Minister issuing a valid notice to the visa holder under s 107, which contained particulars of the alleged non-compliance.
(b)The Tribunal noted a NOICC had been issued under s 107 of the Act identifying the incorrect information.
(c)The Tribunal noted the Applicant’s response to the NOICC where the Applicant admitted that the incorrect information had been provided in the visa application and apologised.
(d)The Tribunal found there was non-compliance with s 101(b) of the Act in the way described in the NOICC and then considered whether the visa should be cancelled pursuant to s109(1). The Tribunal noted that cancellation was discretionary.
(e)The Tribunal considered the Applicant’s response to the NOICC and the prescribed circumstances set out in reg 2.41 of the Migration Regulations 1994 (Cth) (Regulations) at [33] to [62] of its Reasons.
GROUNDS IN THE APPLICATION
In the Application filed 20 March 2020, the following 4 grounds were raised:
1.The delegate did not disclose all relevant information to me before making decision.
2. AAT did not consider whether the delegate dealt with my case properly.
3. AAT made decision beyond its capacity.
4. AAT did not deal with my case fairly.
(errors as in original)
THE APPLICANT’S SUBMISSIONS
The Applicant appeared before the Court at the hearing unrepresented. The Applicant’s wife Ms Ai Luan also appeared and was told as she had been the primary applicant in relation to the visa, if she wished to be heard on any matter then she would be given an opportunity to be heard. The Applicant and his wife were assisted by a Mandarin interpreter.
The Applicant confirmed he was in possession of the Application for Review, the Court Book and Supplementary Court Book. Prior to the hearing commencing time was given for the interpreter to interpret to the Applicant the Minister’s written submissions filed
29 September 2020.
At the hearing the Applicant said he was aware his wife had applied for a student visa and she had put his name down in the application as a dependent. The Applicant confirmed the visa had been granted to both the Applicant and his wife. The Applicant said he understood his visa had been cancelled because the visa application contained the incorrect information. The Applicant also said before the visa was cancelled, he was asked by the Minister to provide information. The Applicant said his agent provided a response to the Minister, which accepted the Applicant had provided the incorrect information and acknowledged it was unlawful to change his identification documents. The Applicant agreed he had in fact provided the incorrect information.
CONSIDERATION
During the course of the hearing the Applicant raised a new ground of review which had not been raised in his application. The ground being that he did not receive notification of the hearing date for the Tribunal hearing. Given the Applicant was unrepresented, I informed the Minister the fairest approach was to examine this additional ground as a ground of review. The Minister accepted that approach.
I will first deal with the grounds in the Application and then I will deal with the additional ground raised at the hearing by the Applicant, being his allegation that he did not receive notification of the hearing date for the Tribunal hearing.
Grounds in the Application
The Applicant was invited to explain the alleged legal error committed by the Tribunal. The Applicant was unable to expand upon the Grounds in the Application. He said his agent had drafted the Grounds and he could not explain why the Tribunal’s decision was wrong.
Given the Applicant is unrepresented, I have reviewed each of the Grounds in the Application to see if jurisdictional error is disclosed. I have further considered whether there are any non-articulated jurisdictional errors.
Grounds 1 and 2
In relation to Grounds 1 and 2, the Minister correctly pointed out the Court does not have jurisdiction to review the delegate’s decision pursuant to s 476(2)(a) of the Act. Further, once the Applicant files an application for review with the Tribunal, the Tribunal conducts a de novo review which would in effect “cure” any error in the delegate’s decision (should any error arise): Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127 at [37] to [38]. No jurisdictional error is disclosed by this ground.
Ground 3
In relation to Ground 3, the Minister contended those grounds were difficult to understand and should be dismissed. The Minister made reference to WZAVW v Minister for Immigration and Border Protection [2016] FCA 760. Having examined the Tribunal’s decision, for the reasons set out at [18] of this judgment, I conclude the Tribunal had power to make the decision at which it arrived. No jurisdictional error is disclosed by this ground.
Ground 4
In relation to Ground 4, the Minister contended on a review of the Tribunal’s reasons, there was an evident intelligible justification for the Tribunal’s reasons.
The Applicant says the Tribunal did not deal with his case fairly. I take this as an allegation that the Tribunal failed to comply with its procedural fairness obligations. I note the following:
(a)The Applicant was given an opportunity to provide any supporting information and evidence explaining why his visa should not be cancelled.
(b)The Applicant provided an explanation to the Department admitting the incorrect information had been provided, apologised and explained why he wanted to stay in Australia. That information was considered by the Tribunal.
(c)The Applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments as required by s 360 of the Act. The Applicant declined this invitation.
(d)The findings made by the Tribunal were open to it on the evidence before it and those findings cannot be seen to be illogical, irrational or unreasonable. (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437)
No jurisdictional error is disclosed by Ground 4.
Additional Ground of Review - Failure to notify the Applicant of the hearing date
The Applicant’s wife Ms Ai Luan, wanted to be heard on the issue of the hearing notification and the Applicant confirmed he wanted his wife to speak. The Minister had no objection. The Applicant’s wife confirmed the following:
(a)That [email protected] was her email address and her English name was Kathy Lee.
(b)On the Applicant’s behalf, Ms Ai Luan received correspondence from the Tribunal to the above email address and forwarded the said correspondence to their agent.
(c)The agent wrote emails on behalf of the Applicant.
The Applicant also confirmed the email address [email protected] was his wife’s and any correspondence from the Tribunal was passed to the Agent.
The Applicant asserted if he had knowledge of the hearing date before the Tribunal, he would have attended the hearing before the Tribunal. When asked what he would have said to the Tribunal, the Applicant responded “I would say I hope I can be allowed to stay here [Australia], I hope I can go to work, because previously my visa did not allow me to work.”
The Minister contended the invitation to attend a hearing, with the date, time and place of the hearing, was emailed to the Applicant on 9 December 2019 at the email address [email protected]. The Minister also referred to the further letter that was emailed from the Tribunal on 21 January 2020, inviting the Applicant to the hearing, such letter was sent to the same email address as aforesaid.
I note the cancellation decision was a Part-5 reviewable decision under s 338(3) of the Act. Therefore, the Tribunal was required pursuant to s 360 and s 360A of the Act to invite the Applicant to appear before the hearing and give the Applicant notice of the day, time and place of the hearing. Section 379A(5)(b) of the Act permitted the Tribunal to give the invitation to attend a hearing at an email address which had been provided by the Applicant.
Section 379C(5) of the Act provided if the Tribunal gave a document to a person by an email address provided then “the person is taken to have received the document at the end of the day on which the document is transmitted.” The Tribunal emailed the notice of invitation dated 9 December 2019, with the day, time and place of the hearing to the email address as provided by the Applicant. Therefore, pursuant to s 362B(1A)(a) of the Act, the Tribunal was empowered to make a decision on the review without taking further action to allow or enable the Applicant to appear before it, which is the course the Tribunal took.I also note that given the submissions made on behalf of the Applicant at [32] and [33] of this judgment, it appears the documents sent by the Tribunal were received by the Applicant at that email address and were provided to the agent. Further, the Applicant’s agent sent responses to the Tribunal on 9 December 2019 and 22 January 2020 stating the Applicant would not appear at the Tribunal hearing. There is no suggestion the agent did not have the requisite authority to reply to the Tribunal as outlined at [15] and [16] of this judgment.
There is no evidence before this Court to support a finding of fraudulent conduct by the agent which caused the Applicant not to attend the hearing. As the Full Court said in SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40 (Perram, Robertson and Griffiths JJ) at [52]:
It is well settled that mere negligence, inadvertence or incompetence on the part of an agent representing a visa applicant will not constitute fraud so as to warrant judicial intervention. In Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 ; [2008] FCAFC 17, the Full Court (Tamberlin, Finn and Dowsett JJ) emphasised the necessity of demonstrating that an agent‘s fraud in dealing with a visa applicant has resulted directly in a fraud on the Tribunal in discharging its decision-making functions. In that case, a protection visa applicant complained that he had failed to attend an adjourned hearing of the Tribunal because his migration agent had not advised him of the hearing. The Full Court held that the evidence concerning the conduct of the agent could not support a finding of fraudulent conduct by that person which caused the visa applicant not to attend the adjourned hearing. The Full Court found that no inference could be drawn that it was the agent‘s dishonest failure that resulted in the applicant not being told about the adjourned hearing and that it was equally probable that the failure was due to an error or omission on the part of the agent. At [33], the Full Court said:
[A]n agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the tribunal in relation to the due discharge of its Div 4 of Pt 7 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects (sic) the tribunal‘s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the tribunal proceeds to make a decision under s 426A in the applicant‘s absence. But before that omission can properly be said to have occasioned a fraud on the tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-a-vis the visa applicant: SZDE at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 and 368 ; [1938] ALR 334; at 342–3 and 344–5 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.
No jurisdictional error has been disclosed by this additional ground.
CONCLUSION
For the above reasons the application is dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur - Bains. Associate:
Dated: 6 September 2024
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