Chen v Minister for Immigration

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1151
MIGRATION – Visa – refusal – review of Administrative Appeals Tribunal decision – allegation of apprehended bias – AAT member had heard and determined previous proceedings concerning applicant’s migration agent – disclosure by AAT – waiver by agent in absence of applicant – whether necessary to make disclosure to applicant personally – whether waiver by migration agent can bind applicant – whether AAT member needed parties’ consent to her hearing matter.
Migration Act 1958, ss.134, 303, 417, 474
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Hope v Bathurst City Council (1980) 144 CLR 1
Shi v Migration Agents Registration Authority [2005] AATA 904
Shi v Migration Agents Registration Authority [2005] AATA 851
Re JRL; Ex parte CJL (1986) 161 CLR 342
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168
Vakauta v Kelly (1989) 167 CLR 568
Najjar v Haines (1991) 25 NSWLR 224
Shi v Migration Agents Registration Authority [2008] HCA 31
Jia v Minister for Immigration & Multicultural Affairs (1999) 93 FCR 556
R v Birks (1990) 19 NSWLR 677
White v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 511
Minister for Immigration & Multicultural Affairs v Jia; Minister for Immigration & Multicultural Affairs v White (2001) 205 CLR 507
Barton v Walker [1979] 2 NSWLR 740
Bainton v Rajski (1992) 29 NSWLR 539
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Applicant: HAIBO CHEN
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 3358 of 2008
Judgment of: Cameron FM
Hearing date: 5 May 2009
Date of Last Submission: 5 May 2009
Delivered at: Sydney
Delivered on: 24 November 2009

REPRESENTATION

Counsel for the Applicant: Mr I.G.A Archibald
Solicitors for the Applicant: Hugh Solicitors
Counsel for the Respondents: Mr P.  Reynolds
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3358 of 2008

HAIBO CHEN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. The applicant, Haibo Chen, is a citizen of China. On 5 November 2003 Mr Chen was granted a Business Skills (Migrant) (Class AD) (Subclass 127 – Business Owner) visa. That visa was cancelled by a delegate of the first respondent (“Minister”) on 10 July 2007 pursuant to s.134 of the Migration Act 1958 (“Act”).  Mr Chen applied to the Administrative Appeals Tribunal (“AAT”) for a review of that departmental decision.  He was unsuccessful before the AAT and has applied to this Court for judicial review of the AAT’s decision.

  2. In these judicial review proceedings the Court’s task is to determine whether the AAT’s decision is affected by…

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Details
Case
[2009] FMCA 1151
Decision Date

CaseChat Overview and Summary

In the case of Chen v Minister for Immigration, Mr Chen contested the accuracy of a disclosure statement made by Senior Member Kelly during proceedings before the Administrative Appeals Tribunal (AAT). The issue at hand was whether Senior Member Kelly’s disclosure about Mr Shi’s previous AAT proceedings was accurate and adequate. Specifically, Mr Chen argued that the disclosure mischaracterised the nature of Mr Shi’s earlier proceedings, suggesting they were about the interpretation of the Migration Act rather than the registration of Mr Shi as a tax agent. The dispute also involved whether Messrs Shi and Su were correctly identified as tax agents in the transcript, with Mr Chen asserting an error in this regard.

The central legal issues were whether Senior Member Kelly’s disclosure was inaccurate or inadequate and whether such inaccuracy or inadequacies, if any, had any practical significance given that Mr Chen’s representatives were already aware of the true facts. The court examined the transcript and the context of Senior Member Kelly’s disclosure to determine if there was a mischaracterisation of the proceedings. The court also considered whether Mr Shi’s representatives were already aware of the true nature of the proceedings, thereby rendering any alleged inaccuracy in the disclosure inconsequential.

The court found that the disclosure was not erroneous as alleged by Mr Chen. The description of Mr Shi’s proceedings related to the appeal in the High Court, which was accurately referenced. Additionally, it was clear that Mr Shi and Mr Su, through their representatives, were already aware of the true facts, making any inaccuracy in the disclosure irrelevant. Therefore, the court concluded that Senior Member Kelly’s disclosure was neither inaccurate nor inadequate.

ORDERS:
1. The application be dismissed.

Orders

Orders of the court

1.

The application be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Mr Chen’s first submission was that in her disclosure statement Senior Member Kelly described Mr Shi’s previous AAT proceedings as ones concerning the latter’s registration as a tax agent. It should be noted that the disputed accuracy of the transcript is an important issue on this question in that the transcript appears to incorrectly record what was said about what sort of agents Messrs Shi and Su were. Senior Member Kelly’s disclosure commences at p.2 of the AAT transcript. It is worth quoting it for a second time here: … it’s just appropriate that everybody know that Mr Shi, who is a tax agent, I had a case where I was considering his registration as a tax agent, which is currently – it’s gone to the High Court and the issues there are legal issues about the interpretation obviously a provision of the Migration Act, but I just thought that you should know that. I mean, Mr Shi knows that but if that causes anybody any difficult, my hearing a case in which he is involved as a tax agent. I don’t think it should because it’s a question of my making a decision about Mr Chen on the facts of his case and I don’t think that really should be seen as being anything that’s going to affect my consideration of that question, but I thought you should know in case you became are of – well, you should know those sorts of things. (emphasis added) Earlier on the same page of the transcript the following appears: In circumstances where Messrs Shi and Su were principals of Southern Hemisphere Consulting and were migration agents, it cannot be doubted that the question by the AAT “[y]our’re both tax agents?” has been erroneously transcribed or that a similar error was made in the transcription of Senior Member Kelly’s disclosure. For this reason, I am not willing to find that the disclosure was erroneous in the first respect alleged by Mr Chen. Mr Chen secondly submitted that Senior Member Kelly had mischaracterized Mr Shi’s earlier proceedings before her by stating that they were concerned with the interpretation of the Migration Act. This submission misunderstands what Senior Member Kelly said. Her description of Mr Shi’s proceedings as being ones relating to the interpretation of the Migration Act was a reference to the appeal in the High Court, not to the entirety of the issues which had been before her in the AAT. Senior Member Kelly’s description of the High Court proceedings was, in fact, accurate: Shi v Migration Agents Registration Authority [2008] HCA 31 at [3], [24], [81] and [116]. For these reasons, I find that Senior Member Kelly’s disclosure was not inaccurate or inadequate in this respect. In any event, it is obvious and was conceded by Mr Chen’s counsel that Mr Shi would have known what Senior Member Kelly was talking about and it is inconceivable that Mr Su did not also know. For these reasons, even if Senior Member Kelly’s disclosure had been deficient in the ways alleged by Mr Chen, that would be of no practical significance because his representatives were already aware of the true facts.