Chen v Minister for Immigration

[2014] FCCA 497

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 497

Catchwords:
MIGRATION – Spouse visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal applied an incorrect test, failed to make enquiries, failed to take a child’s best interests into account and failed to apply a test correctly.

EVIDENCE – Question of foreign law is a question of fact.

Legislation:

Migration Act 1958, ss.101, 107, 108, 109, 474

Migration Regulations 1994, regs.1.15A, 2.41

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZOAU v Minister for Immigration & Citizenship (2012) 199 FCR 448

Applicant: XIAOQING CHEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1642 of 2013

Judgment of: Judge Cameron

Hearing date: 6 March 2014

Date of Last Submission: 6 March 2014

Delivered at: Sydney

Delivered on: 25 March 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1642 of 2013

XIAOQING CHEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant was granted a Partner (Residence) (Class BS) subclass 801 visa on 10 December 2007. On 3 May 2012 that visa was cancelled pursuant to s.109 of the Migration Act1958 (“Act”) because the delegate of the first respondent (“Minister”) considered that the applicant had given incorrect information about the status of her relationship with her sponsor.  On 7 May 2012 the applicant applied to the second respondent (“Tribunal”) for a review of that departmental decision.  The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. Sub-division C of div.3 of pt.2 of the Act imposes obligations on non-citizens to provide accurate information in visa application forms. Section 101 of the Act is found in that sub-division and provides:

   101   Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)     all questions on it are answered; and

   (b)     no incorrect answers are given or provided.

2. Section 107 of the Act allows the Minister to give a visa holder who has not complied with the provisions of sub-div.C of div.3 of pt.2 of the Act a notice of intention to consider cancelling his or her visa. It relevantly provides:

   107   Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)     giving particulars of the possible non‑compliance; and

   (b)stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice …

   …

   (c)stating that the Minister will consider cancelling the visa:

   …

   (d)setting out the effect of sections 108, 109, 111 and 112; and

   (e)informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; …

   …

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

3. Section 108 of the Act provides:

   108   Decision about non‑compliance

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

4. Section 109 of the Act allows the Minister to cancel a visa if an applicant fails to comply with the provisions of sub-div.C of div.3 of pt.2 of the Act. It provides:

   109   Cancellation of visa if information incorrect

   (1)    The Minister, after:

   (a)deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)     having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

5. There are no circumstances declared by the Migration Regulations 1994 (“Regulations”) for the purposes of s.109(2). The prescribed circumstances for the purposes of s.109(1)(c) are found in reg.2.41 of the Regulations which provides:

   2.41  Whether to cancel visa—incorrect information or bogus document (Act, s 109(1)(c))

   For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:

   (a)     the correct information;

   (b)     the content of the genuine document (if any);

   (c)the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;

   (d)the circumstances in which the non‑compliance occurred;

   (e)     the present circumstances of the visa holder;

   (f)the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

   (g)any other instances of non‑compliance by the visa holder known to the Minister;

   (h)     the time that has elapsed since the non‑compliance;

   (j)any breaches of the law since the non‑compliance and the seriousness of those breaches;

   (k)     any contribution made by the holder to the community.

Background facts

Department

1. The applicant first arrived in Australia on 19 February 2004 as the holder of a student visa.  On 28 September 2005 she married an Australian citizen, Mr Shi, and applied for a partner visa.  She was granted a subclass 820 provisional spouse visa on 19 October 2006 and a subclass 801 permanent spouse visa on 10 December 2007.  On 17 August 2009 the applicant and Mr Shi divorced.  The applicant subsequently married another man, Mr Xia, and on 10 December 2009 Mr Xia lodged a partner visa application which was sponsored by the applicant.

2. On 16 February 2012 the delegate wrote to the applicant advising her of his intention to consider cancelling her permanent spouse visa obtained through her marriage to Mr Shi on the basis that she had not complied with s.101 of the Act. The delegate noted that although the applicant had declared on her own partner visa application that she had been living at an address in Birrong, a suburb of Sydney, for over two years prior to the application with her then husband Mr Shi, there was information which suggested that from May 2007 she had lived in Homebush West, another suburb of Sydney, and had been in a relationship with Mr Xia. The delegate noted that a residential tenancy agreement for a property in Homebush West indicated that Mr Xia was the tenant of the property from 14 November 2006 until 9 September 2008 and that the applicant was a witness to the agreement. He also noted that the applicant and Mr Xia had travelled together on the same flight on 16 December 2006 and that Mr Xia had nominated an “Annie Chen” as his emergency contact on an incoming passenger card dated 23 November 2007. The delegate inferred that the applicant had been in a spousal relationship with Mr Xia since at least November 2006.

3. In a statutory declaration declared on 9 March 2012 in response to the delegate’s letter, the applicant maintained that she had been in a genuine relationship with Mr Shi at the time of her application for a partner visa.  She stated that she had not formed a relationship with Mr Xia until 25 August 2008 and had not lived with him at any time before 25 August 2008.  She noted that her daughter with Mr Xia had been born on 26 April 2010 and was an Australian citizen.  The applicant essentially denied all the allegations put to her by the delegate.

4. On 3 May 2012 the delegate decided to cancel the applicant’s visa.  The delegate did not accept the applicant’s submissions and concluded that she and Mr Shi had never been in a genuine spousal relationship.

Tribunal

1. In a submission to the Tribunal dated 11 April 2013 the applicant’s representatives submitted that:

   a)the applicant admitted that from May 2007 until June 2008 she had lived in Homebush West with Mr Xia and that the witness signature on the residential tenancy agreement was hers.  She had not resided with Mr Shi during that period and they had been separated but she had not disclosed this to the Minister’s department (“Department”);

   b)the applicant admitted that she had travelled with Mr Xia on 16 December 2006 and that the “Annie Chen” recorded on Mr Xia’s incoming passenger card dated 23 November 2007 was her;

   c)the applicant acknowledged that she had failed to give genuine information to the Department.  She had done so because she had been misled by her previous migration agents into believing that lying could help her to retain her visa;

   d)the applicant was pregnant and also had a daughter born in Australia who was an Australian citizen.  Her daughter would not be able to obtain a hukou in China.  As she was then pregnant, the applicant would also face a penalty due to China’s one child policy;

   e)the applicant’s parents were Australian permanent residents;

   f)the applicant had been in Australia for nine years and had made contributions to Australian society; and

   g)the applicant would face financial hardship if she and Mr Xia returned to China.

2. At a Tribunal hearing on 12 April 2013 the applicant made the following claims:

   a)her relationship with Mr Shi had been genuine but she had left him in March 2006;

   b)she met Mr Xia in January 2006 and initially they were just friends.  After separating from Mr Shi she went to live with Mr Xia;

   c)she and Mr Shi had long separated when she stated in her “Statement on Partner Relationship” dated 13 November 2007 in support of her spouse visa application that they were still married and living together in Birrong;

   d)her statutory declaration dated 9 March 2012 had been prepared by her migration agent.  Although she had told her agent that she had separated from Mr Shi, her agent had told her that it was better for her to say that she had not.  She had been aware that the contents of the statutory declaration were incorrect but had followed her migration agent’s advice;

   e)if she returned to China she would not have a job or a place to stay.  She and Mr Xia had previously stayed at her father-in-law’s home in China but he had told them that there would not be enough room for them if they returned with a second child.  Her parents were Australian permanent residents and, although they were in China at the time, they usually lived in Australia.  Her younger brother lived in China but did not have full-time work;

   f)she and Mr Xia had worked and purchased a property in Australia;

   g)as an Australian citizen her daughter would not be entitled to a hukou in China.  They would have to pay high education costs for her to attend an international school as well as high medical costs.  When she had taken her daughter to China her daughter had had an allergic reaction, perhaps to the air or the environment; and

   h)if she returned to China while she was pregnant she would be forced to have an abortion.  If she returned after her second child was born she would have to pay a fine for having a second child.

3. Following the Tribunal hearing the applicant’s representative sent to the Tribunal a submission dated 23 May 2013 in which it was said that:

   a)the applicant did not have a strong academic record and would only be able to obtain a cleaning job with a salary of about 12,000 RMB whereas her daughter’s primary school tuition as a non-local student would be about 10,700 RMB.  The applicant would not be able to afford the tuition and as a result her daughter would not be able to receive a proper education;

   b)without a hukou the applicant’s daughter would have to access higher private health care which was about four times the cost of public health care; and

   c)if the applicant returned to China with a second child she would have to pay a fine of 475,264 RMB and, when she obtained employment, would have twenty per cent of her salary deducted as a contribution to a “social foster fund”.  If she did not pay the fine her second child would be unable to obtain a hukou which would have a negative effect on his or her ability to access education and medical services.

4. Included in that submission was:

   a)a statutory declaration from an employee of the applicant’s representatives who claimed to have attended the Chinese Consulate in Sydney and requested information concerning the consequences of a child giving up their Australian citizenship and whether or not that child would be able to acquire Chinese citizenship.  The Chinse Consulate advised that it did not deal with citizenship applications and that such enquires should be directed to the Chinese Ministry of Public Security; and

   b)a statutory declaration declared by Mr Xia in which he stated that he had returned to China and spoken to various authorities about the penalties for violating the one child policy and the education and medical costs for Australian children in China.

The Tribunal’s decision and reasons

1. The Tribunal found that the delegate’s notice of intention to consider cancellation of the applicant’s visa contained sufficient particulars to enable her to identify and address the issues with respect to her alleged non-compliance with s.101 of the Act. It noted the applicant’s evidence that her relationship with Mr Shi had ended in 2006 and they had not lived together in 2007 when she provided the various forms saying they did. The Tribunal therefore found that the applicant had not complied with s.101. It found that the delegate had not only considered that the applicant had breached certain provisions of the Act, but had also reached the requisite state of mind to engage s.107.

2. The Tribunal went on to consider the circumstances prescribed in reg.2.41 of the Regulations for cancelling a visa and the further circumstances found in departmental policy PAM3 “General visa cancellation powers”. After considering all the circumstances, the Tribunal was satisfied that the applicant’s visa should be cancelled. Its decision was based on the following findings and reasons:

   a)it found that the applicant and Mr Shi were not living together at the Birrong address in November 2007 as suggested in the forms supplied by the applicant in connection with her application for the spouse visa.  The Tribunal found that by the time her non-compliance occurred the applicant had no longer been in a spousal relationship with Mr Shi and had already been in a relationship with Mr Xia and living with him;

   b)it found that the applicant’s relationship with Mr Shi had ended by March 2006 and therefore that at the time the decision was made on her visa application the applicant was not the spouse of her sponsor within the meaning of r.1.15A of the Regulations. The Tribunal found that none of the exemptions to the usual requirement for an ongoing relationship applied to the applicant. It found that if the applicant had provided correct information in her application the Department would probably have refused to grant her the visa;

   c)it accepted that neither the applicant nor Mr Xia owned any significant assets in China and that if the applicant were to return to China there would be expenses necessarily associated with relocating to a different country.  The Tribunal accepted that the applicant might have a period of adjustment after spending nine years in Australia but noted that she was a Chinese citizen who was fluent in Mandarin, that her brother was still in China and that her parents had been there since December 2012;

   d)it noted that when issued with the notice of intention to consider cancellation of her visa the applicant had initially maintained that the information she had provided was correct before conceding in April 2013 that she had in fact separated from Mr Shi in 2006.  The Tribunal was satisfied that the applicant had been fully aware in her response to the notice that she had been providing false information to the Department in order to prevent her visa being cancelled;

   e)it found that the applicant’s daughter’s Australian citizenship and her parents’ visas had been obtained as a result of the false information she had provided for her own permanent visa application.  The Tribunal found that it was unlikely that the applicant’s daughter would remain in Australia if her parents returned to China and placed little weight on the fact that the applicant’s parents were Australian permanent residents.  It also noted that as Mr Xia was on a bridging visa, presumably pending the outcome of the applicant’s application, if the applicant’s visa was cancelled he would have no basis to remain in Australia;

   f)it accepted that if the applicant’s daughter remained an Australian citizen she would be unable to acquire Chinese citizenship because China did not recognise dual citizenship.  The Tribunal noted that country information indicated that there was a process which allowed children of Chinese nationals to acquire citizenship provided they did not retain the citizenship of another country and were willing to abide by China’s laws.  The Tribunal further noted that unless the Department revoked the applicant’s daughter’s citizenship, ultimately it was up to the applicant and Mr Xia to decide to acquire Chinese citizenship for their daughter and it was therefore not prepared to place much weight on the daughter’s relocation to China.  However, it accepted that there might be costs associated with the applicant’s daughter acquiring Chinese citizenship and subsequently registering on a hukou;

   g)it noted the applicant’s evidence that her daughter had been sick on a visit to China and found that while the child might have had an allergic reaction in China, there was no evidence before it to suggest that if she returned to China her health would necessarily be adversely affected;

   h)given that the applicant had been heavily pregnant at its hearing, the Tribunal gave no weight to the applicant’s claim that she would be forced to have an abortion in China because it found that it was unlikely that its decision would be implemented prior to the birth of her second child.  In relation to her claim that she would be fined for violating China’s one child policy, the Tribunal found that country information suggested that the policy was not enforced on Chinese nationals returning from foreign countries.  Although it accepted that a substantial fine was likely to be imposed on the applicant, the Tribunal found that the policy was implemented differently in each province or district and on that basis was not prepared to place a specific figure on the fine the applicant might be required to pay.  It was also not prepared to accept that the imposition of a fine on the applicant amounted to persecution;

   i)after considering the applicant’s claims that she would face significant financial burden in terms of a fine for a second child, relocation costs and a possibility that she would not obtain a suitable income in China, the Tribunal was not satisfied that any such financial detriment was sufficient grounds for it to exercise its discretion not to cancel the applicant’s visa; and

   j)it accepted that the applicant had been in Australia since 2004, had worked and presumably paid tax and had attended church but found that any integration into the Australian community which she had achieved had only been possible through her fraud in obtaining her visa.  Although the Tribunal accepted that the applicant might be emotionally devastated by the prospect of returning to China, it did not accept that any financial costs or psychological readjustment flowing from her and her family returning to China warranted the exercise of its discretion to not cancel the visa.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The decision was affected by jurisdictional error.

   a.There are errors of law.  The Member misinterpreted Regulation 2.41.  In paragraph 101 of his decision, he states that “but to return to the beginning, any ‘integration’ was only possible through Ms Chen’s fraud in obtaining permanent residency in the first place.”  He held the view that “integration” shall not be taken into account if there is a fraud in my application.

   b.The Member made decision only upon his own understanding of one Article of the Nationality Law of the People’s Republic of China 1980 and did not search for any other relevant legislation.  He is not an expert in Chinese law nor a qualified Chinese lawyer.  He did not seek any advice from an expert of Chinese Law nor request me to provide expert advice regarding the interpretation of legislation.

   c.The Member failed to take into account the best interest of a child who is an Australian Citizen and the international obligation of Australia to protect children.

2. At the hearing of this application the applicant raised further asserted grounds of review.

Ground 1

1. The first ground of the application implied that the applicant’s integration into Australian society and the events by which she was able to achieve any such integration were matters which reg.2.41, which was set out earlier in these reasons, required the Tribunal to take into account. The applicant also alleged that the Tribunal had misapplied the regulation when considering those issues.

2. This argument appears to arise out of the applicant’s written submissions to the Tribunal of 11 April 2013 where, referring to section 12 of the Department’s Procedures Advice Manual, it is recorded that the Minister (and thus also the Tribunal) may grant a visa in a case involving unique or exceptional circumstances such as:

   (2)The length of time the person has been present in Australia (including time spent in detention) and their level of integration into the Australian community.

3. The applicant did not suggest either in those submissions or in this proceeding that her circumstances were unique or exceptional by reason of her integration into the Australian community and the Tribunal clearly did not think that they were because, as the applicant observed in this allegation, it was of the view that:

   … any “integration” was only possible through Ms Chen’s fraud in obtaining permanent residency in the first place.

   The Tribunal’s rejection of the applicant’s integration claim was open to it, as was its implicit rejection of her claim to special consideration, because her circumstances were not unique and exceptional for the purposes of the Procedures Advice Manual.

4. Returning to the allegation as made, reg.2.41 makes no express or implied reference to a person’s integration into Australian society and thus any approach which the Tribunal took to that issue does not amount to a misapplication of that regulation or jurisdictional error on that account.

5. If, contrary to that conclusion, the question of the applicant’s integration into Australian society was a matter relevant to the consideration of “the present circumstances of the visa holder”, referred to in reg.2.41(e), or of “any contribution made by the holder to the community”, referred to in reg.2.41(k), the summary of the Tribunal’s decision record appearing earlier in these reasons demonstrates that it undertook a comprehensive consideration of the applicant’s circumstances by reference to both Australia and China and also considered what contribution she may have made to the Australian community. The applicant’s purported integration into Australian society did not require separate analysis and discussion in either context, particularly as she had raised it in her submissions in a different one.

6. Finally, the fact that the Tribunal was of the view that no weight was to be accorded to the applicant’s purported integration into Australian society because that circumstance only came about as a result of her own fraud was unexceptionable as it manifested an approach which echoed the substance of the maxim ex turpi causa non oritur actio.

Ground 2

1. As observed by the Minister in his written submissions citing SZOAU v Minister for Immigration & Citizenship (2012) 199 FCR 448, a question of foreign law is a question of fact (at 458 [57]). Consequently, much of this allegation is no more than an impermissible challenge to a fact which was open to the Tribunal to find.

2. This ground also alleged that the Tribunal should have made additional enquiries.  However, the applicant did not suggest to the Tribunal that it should make such enquiries and the narrow circumstances necessary to oblige the Tribunal to do so on its own initiative were not present in this case.  For these reasons, the second ground of the application does not disclose error on the Tribunal’s part.

Ground 3

1. The applicant alleged in the third ground of the application that the Tribunal failed to take her daughter’s best interests into account.  However, that is exactly what the Tribunal did do in paras.81-89 of its decision record which commenced with the words:

   In terms of the best interest of the child ….

2. This ground is not made out.

Submissions at hearing

1. The applicant made additional allegations at the hearing of this application.  To the extent that they made arguable claims of jurisdictional error, they were that the Tribunal failed to consider the following matters forming part of the circumstances of the applicant, her husband and their children:

   a)the punishment under the one child policy which the applicant would face having fallen pregnant with her first child while unmarried;

   b)the fact that the applicant’s first child would not have the same entitlements as other Australian children were she to go to live in China;

   c)the fact that both of the applicant’s children would be treated unfairly in China in terms of access to education, health care and employment;

   d)the situation of the applicant’s husband;

   e)the fact that the applicant and her husband had been in Australia for more than ten years and that soon all the applicant’s family would be in Australia; and

   f)the fact that the applicant had been somewhat involved in a church in Australia.

2. The applicant did not make a claim to the Tribunal of the sort raised in para.(a) above.  As to para.(b), the applicant did not make a claim to that effect but the Tribunal did consider the possibility that the applicant’s first child might not be afforded access to public services in China on a basis as advantageous as that afforded to Chinese citizens, that being a claim which the applicant had made.  As to para.(c), the Tribunal did consider whether the applicant’s first child would be treated unfairly in China in terms of access to education and health care and a similar claim concerning the second child was addressed in paras.93 and 94 of the Tribunal’s reasons.  No claim was made in respect of either child regarding their future access to employment in China.  The matter referred to in para.(d) above was not one which the applicant raised with the Tribunal or at any earlier point.  At para.79 of its reasons, the Tribunal noted that a consequence of cancelling the applicant’s visa would be that her husband would have no basis to remain in Australia and in the absence of any particular matters raised by the applicant with the Tribunal in connection with her husband’s situation, the Tribunal did not need to do more than make that observation.  As to para.(e), the Tribunal did observe that relocation to China would require readjustment after the applicant’s lengthy time in Australia.  Further, the applicant did not say to the Tribunal that her brother was going to move to Australia and as far as the Tribunal knew the applicant’s parents were still in China, although it did acknowledge evidence that they usually resided in Australia.  The Tribunal also obliquely noted the possibility that the parents could lose their permanent residency visas because of the circumstances in which they had been obtained.  The matter raised in para.(f) was considered in para.74 of the Tribunal’s reasons. 

3. It can therefore be seen that the matters raised by the applicant at the hearing of this application were either ones which had not been raised with the Tribunal or, having been raised, were considered by it.  Consequently, the allegations made at the hearing do not disclose jurisdictional error on the Tribunal’s part.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 25 March 2014