Chou v Minister for Immigration
[2019] FCCA 2709
•8 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHOU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2709 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a partner visa – failure to inform the Minister’s Department of the cessation of the relationship on which the visa was based – whether the Tribunal review was procedurally fair, whether the Tribunal gave proper consideration to supportive evidence, whether the Tribunal erred in considering the requirements of State law for the registration of births, whether the Tribunal was biased and whether the Tribunal erred in cancelling the visa of the second applicant as a consequence of the cancellation of the first applicant’s visa considered – no jurisdictional error. |
| Legislation: Births, Deaths and Marriages Registration Act 1995 (NSW), ss.15, 18, 57 Migration Regulations 1994 (Cth) |
| Cases cited: Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Galea v Galea (1990) 19 NSWLR 263 |
| First Applicant: | CHANDY CHOU |
| Second Applicant: | SEBASTIAN CHOU |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 693 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 September 2019 |
| Date of last submission: | 15 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2019 |
REPRESENTATION
| Counsel for the Applicants: | Mr P Knowles |
| Solicitors for the Applicants: | Kinslor Prince Lawyers |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application as amended on 15 May 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 693 of 2018
| CHANDY CHOU |
First Applicant
SEBASTIAN CHOU
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of decisions of the Administrative Appeals Tribunal (Tribunal) made on 8 February 2018 and 9 March 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel the first applicant’s (Ms Chou) subclass 801 partner visa. In consequence, but decided separately,[1] the Tribunal also cancelled the subclass 820 partner visa of the second applicant, her son (Sebastian).
[1] Chou (Migration) [2018] AATA 1055
The following statement of background facts is derived from the submissions of the parties.
Ms Chou is a citizen of Cambodia.
On 11 April 2012, Ms Chou was granted a prospective marriage (subclass 300) visa, for which she was sponsored by her prospective husband, Mr Luis Alberto Munoz Benavides, who was an Australian citizen.
Ms Chou entered Australia on 12 May 2012.[2] She and Mr Benavides were married on 26 May 2012.[3]
[2] Court Book (CB) 11
[3] CB 2
On 15 June 2012 Ms Chou applied for a partner (Class UK/BS) visa based upon her relationship with her sponsor.[4] In her visa application form, Ms Chou declared that her relationship with Mr Benavides had commenced on 26 May 2012[5] and had not ceased.[6]On 21 June 2012 a delegate of the Minister granted Ms Chou a partner (Temporary)(Class UK) visa.[7] On 28 May 2014, Ms Chou provided further evidence of her ongoing relationship with Mr Benavides.[8] This included a statutory declaration dated 26 May 2014.
[4] CB 19
[5] Q13; CB 1
[6] Q77; CB 22
[7] CB 224.1
[8] CB 34-51
The additional evidence provided by Ms Chou on 28 May 2014 to the Minister’s Department to demonstrate that her relationship with Mr Benavides was ongoing and continuing included a statutory declaration.[9] Ms Chou declared that:
a)she had a mutual commitment to a shared life as husband and wife, to the exclusion of all others, with Mr Benavides;
b)she was five months pregnant;
c)she and Mr Benavides were “now preparing for our new member is a baby boy [coming] in September”;
d)she and Mr Benavides were “both still finding the name for our baby boy”; and
e)she and Mr Benavides were “trying to save up for a deposit to purchase [their] first family home before having another child”.
[9] CB 46
On 29 August 2014 Sebastian was born. He is the son of Ms Chou. He was born in Australia and is a citizen of Cambodia.[10] Upon his birth, by virtue of the fact that his mother held a subclass 820 visa, he was taken to have been granted a subclass 820 visa.[11]
[10] CB 83
[11] see s.78 of the Migration Act 1958 (Cth) (Migration Act)
On 9 September 2014 a delegate of the Minister granted Ms Chou a partner (Permanent)(Class BS) visa.[12]
[12] CB 224.5
On Ms Chou’s account, in December 2014 she separated from Mr Benavides.
On 21 January 2016 Ms Chou submitted to the Minister’s Department a Form 1022 Notification of Change of Circumstances requesting that Sebastian be granted a visa.[13] In support of the request, Ms Chou provided a certified copy of Sebastian’s birth certificate, indicating his father was Mr Phoumearith Ben.[14]
[13] CB 82-85
[14] CB 86
On 4 April 2016, Ms Chou and Mr Benavides were divorced.[15]
[15] CB 53, 68
On 3 May 2016, Ms Chou and Mr Ben were married.[16]
[16] CB 52, 68, 88
On 21 June 2016, Ms Chou and Mr Ben lodged an application for a partner (Class UF/BC) visa.[17] In his application Mr Ben stated that he and Ms Chou, from 14 December 2013, were committed to a shared life together to the exclusion of all others.[18] In a statutory declaration in support of Mr Ben’s application for a partner visa, Ms Chou declared that she and Mr Ben did not develop a relationship until after her son was born (that is, late in 2014) but that she was happy to have found Mr Ben, wished to live with him and wished to build a family with him, including by having more children.[19]
[17] CB 51
[18] Q58; CB 68
[19] CB 88-89
On 9 May 2017 a delegate issued Ms Chou with a Notice of Intention to Consider Cancellation (NOICC) of her partner visa pursuant to s.107 of the Migration Act.[20] The NOICC stated that the delegate considered that Ms Chou did not comply with s.101(1)(b) and s.104 of the Migration Act, and invited Ms Chou to respond. Specifically, the NOICC alleged that Ms Chou:
a)failed to notify the Minister’s Department of a relevant change in circumstances, namely that Ms Chou and Mr Benavides ceased to be in a relationship in December 2013; and
b)provided incorrect information in her statutory declaration dated 26 May 2014 which indicated that she was in an ongoing relationship with Mr Benavides.
[20] CB 91-97
Ms Chou responded by emails dated 1 and 2 June 2017.[21]
[21] CB 103-218
On 28 July 2017 the delegate cancelled Ms Chou’s partner visa.[22] The delegate noted that Sebastian’s visa would be cancelled as a consequence of Ms Chou’s visa being cancelled.[23]
[22] CB 219
[23] CB 235
On 1 August 2017 Ms Chou and Sebastian applied to the Tribunal for review of the delegate’s decision.[24] The applicants’ migration agent was advised by the Tribunal that Sebastian would require his own review application.[25] The applications ultimately were heard by the same Tribunal member.
[24] CB 238
[25] CB 251
On 8 February 2018 the Tribunal affirmed the delegate’s decision to cancel Ms Chou’s partner visa.[26] The Tribunal was satisfied that the cancellation power in s.109 was engaged in that it was satisfied there was non-compliance by Ms Chou in the way described in the NOICC. In particular the Tribunal found at [36] that Ms Chou had ceased to be in a spousal relationship with Mr Benavides before she was granted the permanent visa, and that her failure to inform the Minister’s Department about these changes was a breach of s.104 of the Migration Act. Further, the fact that Ms Chou’s spousal relationship with Mr Benavides ended by the time she provided her declaration in May 2014 meant that she therefore gave incorrect information to the Minister’s Department contrary to s.101 of the Migration Act.[27] The Tribunal by reference to the matters prescribed in regulation 2.41 of the Migration Regulations 1994 (Cth) (Regulations) decided to exercise its discretion to cancel Ms Chou’s visa under s.109 of the Migration Act.
[26] CB 385
[27] [37]
On 9 March 2018 the Tribunal affirmed the delegate’s decision to cancel Sebastian’s visa by operation of s.140(2) of the Migration Act.[28]
[28] Annexure B to the affidavit of David John Prince
The present proceedings
These proceedings began with a show cause application filed on 15 March 2018. The applicants now rely upon an amended application filed on 15 May 2018. The grounds in that amended application are:
The First Decision – The First Applicant
2.In forming an adverse finding on the credibility of the First Applicant the Tribunal fell into jurisdictional error by misunderstanding the applicable law, or by misapplying the applicable law or by denying the First Applicant procedural fairness. [Refer to paragraph 20 of the Tribunal's decision.]
a.The Tribunal held that the failure of the First Applicant to advise the First Respondent of changes in her relationship with her then second husband bore adversely upon her credibility.
b.There is no obligation under the Act for an Australian citizen or permanent resident sponsor to notify the First Respondent or his department of any change in circumstances. Instead that obligation is limited to a visa applicant under section 104 of the Act.
c.The Tribunal denied the First Applicant procedural fairness in relation to this by telling her that there was nothing adverse to her concerning her subsequent behaviour in relation to her obligations under the Migration Act
Particulars
Transcript, pp 39.20-40.01
3.The Tribunal failed to give proper genuine and realistic consideration to the third party and other supporting evidence provided by the First Applicant to the Tribunal. [Refer to paragraph 24 of the Tribunal decision]
Particulars
a.It was a critical finding of the Tribunal that Ms Chou's relationship with Mr Benavides ended before May 2014: at [37];
b.The Tribunal's consideration of third party evidence proceeded on the basis that "such evidence does not address the applicant's motivations and commitments" in relation to the genuineness of her relationship with Mr Benavides: at [24];
c.However, the 31 May 2017 letter from Ms Chou's sister, Chanda, did address Ms Chou's motivations and commitments as follows:
I have been witness to Chandy and Luis's relationship from the beginning, because I introduced Chandy to Luis. I believe their marriage was sincere and genuine. Chandy gave birth to her son Sebastian in 29th [August] 2014. They were both very happy when he was born. But soon after the birth their marriage fell apart. Chandy was very upset at this time ...
d. It can be inferred that the Tribunal did not give proper, genuine and realistic consideration to Chanda’s statement (and by further inference, the other material dealt with compendiously at [24]).
3A The Tribunal found that it was an offence against the Births, Deaths and Marriages Act 1996 (NSW) (BDM Act) for the First Applicant to have identified Mr Benavides as a parent of her child upon the registration of the birth (at [57], see also at [22], [73]) and thereby:
(a) breached s.359A or s.360(1) of the Act or otherwise denied the First Applicant procedural fairness; and
Particulars
i. The First Applicant was denied the opportunity to present arguments to the effect that "parent" within the BDM Act does not mean biological parent and that it was not an offence to identify Mr Benavides as the child's parent because at the time the First Applicant and Mr Benavides intended that Mr Benavides would be the parent of the child;
ii. The First Applicant was denied the opportunity to present arguments to the effect that the meaning of “parent” within the BDM Act was sufficiently unclear as a matter of law that the Tribunal should in its discretion not determine one way or the other whether it was an offence to identify Mr Benavides as the child’s parent;
iii. It was necessary for the Tribunal to put to the First Applicant not only that she breached the law, but that she committed an offence because the Tribunal expressly considered not only whether the First Applicant breached the law but also the seriousness of those breaches ( at [57])
(b) alternatively, committed a material error of law by acting on a wrong construction of the BDM Act.
Particulars
i. On the proper construction of the BDM Act the First Applicant was not required to register the child’s biological father as the parent and was entitled to register her husband as the parent
3B The First Applicant was not afforded a hearing as required by law because the Tribunal member conducted the hearing in a manner giving rise to apprehended bias or that was otherwise procedurally unfair.
Particulars
a. The Tribunal’s questioning of the First Applicant on the critical matter of the nature of her relationship with Mr Ben (see Reasons at [18]) was unfair.
b. The questions proceeded upon an unreasonable mischaracterisation of the First Applicant’s evidence, which was repeated several times despite the First Applicant denying the premise of the questions: Transcript 24, 51
c. The questioning ultimately resulted in the First Applicant being overborne: Transcript 51-52
d. A fair-minded lay observer might apprehend that there was nothing the First Applicant could say or do to change the Tribunal’s preconceived view that she was dishonest;
e. The inference is supported by the whole Transcript evidencing the Tribunal member’s repeated statements she disbelieved the First Applicant.
The Second Decision – The Second Applicant
4.The Tribunal fell into jurisdictional error by affirming the decision of a delegate of the First Respondent to cancel the visa held by the Second Applicant under section 140(2) of the Act.
Particulars
a.The Second Applicant was granted a Partner (Temporary) (Class UK), subclass 820 Partner (provisional) visa at the time of his birth on 29 August 2014 by operation of section 78 of the Act.
b.Pursuant to Reg 2.08 of the Migration Regulations 1994 the Second Applicant was also deemed by operation of law to have been included in the First Applicant's outstanding application for a Partner (Residence) (Class BS), subclass 801 Partner (permanent) visa as at the time of his birth on 29 August 2014.
c.On 9 September 2014 a delegate of the First Respondent approved the Partner (Residence) (Class BS), subclass 801 Partner (permanent) visa for the First Applicant but failed to make any decision in relation to the Second Applicant. As such, from that time the Second Applicant continued to hold a Partner (Temporary) (Class UK), subclass 820 Partner (provisional) visa.
d.On 28 July 2017 a delegate of the First Respondent cancelled the Partner (Residence) (Class BS), subclass 801 Partner (permanent) visa held by the First Applicant under section 109 of the Act. On that same day a delegate of the First Respondent purported to cancel "the visa" held by the Second Applicant under section 140(2) of the Act.
e. Section 140(2) of the Act had no application to the circumstances of the Second Applicant given that he did not hold the Partner (Temporary) (Class UK), subclass 820 Partner (Provisional) visa only because the First Applicant held a Partner (Residence) (Class BS), subclass 801 Partner (permanent) visa.
5. The Tribunal fell into jurisdictional error by proceeding on the basis that the First Applicant’s visa had been cancelled when, on the Grounds set out above at 2, 3, 3A and 3B, that was a legally erroneous basis.
In addition to the court book lodged on 2 May 2018, I have before me as evidence the affidavit of Mr Prince made on 15 March 2018, to which is annexed the two decisions of the Tribunal and a second affidavit by Mr Prince made on 14 May 2018, to which is annexed a transcript of the hearing conducted by the Tribunal on 18 January 2018.
Both the applicants and the Minister filed pre-hearing written submissions and made helpful submissions through their counsel at the trial on 24 September 2019. I provided the parties with the opportunity to file post hearing submissions in relation to issues arising in oral argument at the trial. Both the applicants and the Minister took up that opportunity.
Consideration
Ground 2 – did the Tribunal err in finding that Ms Chou failed to notify a change in her relationship?
Applicants’ contentions
In reaching an adverse conclusion in relation to Ms Chou’s credit, the Tribunal found that she had failed to inform the Minister’s Department about changes in her circumstances, namely the claimed deterioration of her relationship with Mr Ben in late 2016.[29] The Tribunal’s reasoning in this regard is premised on Ms Chou’s being under a legal obligation to notify such a change in circumstances.
[29] CB 391 at [20]
That premise is said to involve an error of law. The applicants contend that there was no such obligation. Section 104 of the Migration Act, in its terms, imposes obligations on visa applicants. It does not impose any obligation on visa sponsors to notify the Minister’s Department of any change in circumstance. It is no answer to say that Ms Chou, the holder of a visa herself, was under an obligation under s.104 of the Migration Act. This is said to be because the relevant change in circumstance was said to have occurred in late 2016. That was after the grant of Ms Chou’s subclass 801 visa and Ms Chou was, in the applicants’ submission therefore, under no duty to notify the Minister’s Department of the change in circumstance.[30]
[30] see s.104(2) of the Migration Act
The applicants contend that the Tribunal therefore made a decision premised on a misunderstanding of Ms Chou’s legal obligations. That error was material in the sense that it supported the Tribunal’s overall adverse credit finding. It is not unrealistic to think that, but for the error, the Tribunal might have reached a different conclusion. In those circumstances, the error can be considered as one which goes to jurisdiction.[31]
[31] Minister for Immigration v SZMTA (2019) 93 ALJR 252 at [45]
The applicants submit that an alternative manner in which the error could be expressed is a denial of procedural fairness constituting a failure to comply with s.360 of the Migration Act. It was put to Ms Chou during the Tribunal hearing that she failed to inform the Minister’s Department of the deterioration of her relationship with Mr Ben, and that she had an obligation to do so.[32] However, later in the hearing the Tribunal said to Ms Chou that there was nothing adverse concerning her behaviour subsequent to the grant of her visa in relation to her obligations under the Migration Act.[33]
[32] Transcript (T) 26.04, T 26.38-41, T 27.14-15
[33] T 39.27-T 40.1
The applicants submit that, based on that assurance, Ms Chou was entitled to assume that there was no issue in the review concerning her supposed failure to disclose to the Minister’s Department any change in her relationship with Mr Ben after she was granted the subclass 801 visa.[34] She was justified in assuming that no further submission was required in respect of that issue. For the Tribunal to depart from the assurance given is said to have been a denial of procedural fairness and a failure to comply with the obligation in s.360 of the Migration Act because Ms Chou lost an opportunity to make submissions in support of her case.[35]
[34] Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 at 12-13 [34]-[35]; SZBEL v Minister for Immigration(2006) 228 CLR 152 at [36]
[35] Minister for Immigration v WZARH (2015) 256 CLR 326 at [57]
Minister’s contentions
As confirmed by the Full Federal Court in ARG15 v Minister for Immigration[36] at [83], in focussing upon a credibility finding for the purposes of identifying jurisdictional error, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred. The Minister contends that the Tribunal’s findings at [20], when read in context, were one part of a broader assessment of concerns identified by the Tribunal emanating from Ms Chou’s written and oral evidence that, in the Tribunal’s assessment at [18], was variable and changed and shifted depending on what Ms Chou perceived would be beneficial to her case. Ms Chou is said to misconceive, in her challenge to the decision based on the findings at [20], that the Tribunal was suggesting there was any statutory obligation on her to notify the Tribunal about the deterioration in her relationship with Mr Ben. Rather, read fairly and in context, the Minister submits that the Tribunal’s concern as expressed was that Ms Chou for the purposes of Mr Ben’s visa application was prepared to permit the Minister’s Department to believe that her relationship with Mr Ben was a genuine and mutually committed relationship, but she also asserted for the purposes of resisting the cancellation of her visa (and for the first time) that the relationship with Mr Ben had deteriorated in 2016.
[36] [2016] FCAFC 174
It is said to have been open to the Tribunal to reason in the way that it did. The basis of the credibility concern identified at [20] went to the variation in Ms Chou’s representations about the nature of her relationship with Mr Ben. The concern, at [20], was not that Ms Chou had failed to comply with a statutory obligation to notify of a change in circumstance.
In relation to the asserted denial of procedural fairness, the Minister submits that this cannot be made out. The Tribunal’s remarks at T 39.20 – T 40.01 arise in relation to “obligations under the Migration Act”. As noted above, the credibility concern expressed by the Tribunal at [20] was not directed to a discrete breach of a statutory obligation, but to Ms Chou’s variability in her evidence as to the state of her relationship with Mr Ben. Ms Chou raised the issue the Tribunal referred to at [20] in discussion with her during the hearing.[37]
[37] T 15.35 – T 19.24
Resolution
Ms Chou contends that the Tribunal fell into error in making an adverse credibility finding against her based on a misunderstanding or misapplication of the Migration Act. Ms Chou asserts further in this respect that she was denied procedural fairness. Ms Chou submits that the Tribunal’s misunderstanding or misapprehension arose from its finding at [20] that she had failed to inform the Minister’s Department about changes in her circumstances, being the claimed deterioration of her relationship with Mr Ben in late 2016.
The Tribunal stated at [20] of its reasons:[38]
Further, if the applicant’s evidence concerning her relationship with Mr Ben was true, the applicant told the Tribunal that she never informed the Department about these changes in the relationship while sponsoring Mr Ben for the partner visa. Such an application implies the existence of a mutually committed relationship and the applicant suggests that neither she nor Mr Ben have any commitment to each other. That would be highly relevant to the processing of Mr Ben’s visa. The applicant said that she hoped he would change his relationship but she also claims that did not happen before his visa was refused in July 2017. That is, the applicant now claims her relationship with Mr Ben deteriorated by the end of 2016 yet she failed to inform the Department about the changes in the circumstances and continued to rely on the existence of a genuine and mutually committed relationship with Mr Ben in order to obtain the visa for him. Now when dealing with the cancellation of her own visa, and when the applicant determined that having no relationship with Mr Ben was of benefit to her, the applicant revealed for the first time that the relationship deteriorated in 2016. When the Tribunal questioned the veracity of the applicant’s evidence, she said that their relationship did not end, but her own evidence is that by the end of 2016 her relationship with Mr Ben was no longer of the nature she previously described to the Department. The Tribunal finds that on the applicant’s own evidence, she was willing to provide false or misleading information to the Department, and not inform the Department about significant changes in the circumstances, when she believed it better suited her circumstances.
[38] CB 391
It is necessary at this point to refer to Ms Chou’s explanation of the circumstances of Sebastian’s conception and birth. These matters are set out in statutory declarations made by Ms Chou on 8 June 2016,[39] 31 May 2017[40] and 31 January 2018.[41] Ms Chou claimed that during a visit to Cambodia in December 2013 - January 2014 she reunited with former work colleagues, including Mr Ben. One evening, whilst intoxicated, she had intercourse with Mr Ben. Ms Chou did not intend to have a continuing relationship with Mr Ben. Ms Chou returned to Australia on 18 January 2014 and continued to live with her husband Mr Benavides. Soon after, she discovered that she was pregnant and, because of the timing of the pregnancy, knew that Mr Benavides was not the father of the child. Mr Benavides was, however, originally named as Sebastian’s father on the birth certificate and Ms Chou desired at that point in time for Mr Benavides to raise the child. Approximately two or three months after Sebastian’s birth, Ms Chou told Mr Benavides the truth of the events that occurred during her trip to Cambodia. Mr Benavides left the marital home soon thereafter. The couple separated in December 2014, and divorced on 4 April 2016. After the separation, Ms Chou claimed that she developed a closer relationship with Mr Ben and, in October 2015, a DNA test established that Mr Ben was Sebastian’s father. Ms Chou and Mr Ben were married in Cambodia in May 2016.
[39] CB 88-89
[40] CB 133-142
[41] CB 363-372
It is true that, as the holder of a permanent partner visa, Ms Chou was not under an obligation to inform the Minister’s Department of changes in her relationship with Mr Benavides. Neither did an obligation to notify changes to circumstances arising from her status as the sponsor of Mr Ben. Further, I accept that some of the language used by the Tribunal, including at the Tribunal hearing[42] is suggestive of at least a moral obligation on Ms Chou. The material point here, however, is not the failure to notify changes to circumstances but, rather, the changeability of Ms Chou’s claims about her relationships, depending on her assessments of what best suited her interests. This impacted adversely on her credibility. I accept the Minister’s submissions in that regard.
[42] see T 26.14, T 26.38-41 and T 27.14-15
The reality appears to be that Ms Chou acted too quickly in sponsoring the visa application by Mr Ben. In my view the Tribunal was entitled to reason as it did at [20] of its decision. Read fairly, and in the context of the varying statements made by Ms Chou, the Tribunal did not err in making that adverse credibility finding.
Ground 3 – did the Tribunal fail to give proper, genuine and realistic consideration to the evidence?
Ms Chou contends that the Tribunal failed to give proper, genuine and realistic consideration to supporting evidence given by the applicant concerning the nature of her relationship with Mr Benavides. The Tribunal took the evidence into account as submitted, finding at [24] that it accepted that those who provided statements may genuinely believe the information they supplied, but that such evidence did not address Ms Chou’s motivations and commitments.
A critical plank of the Tribunal’s reasoning process was that Ms Chou’s relationship with Mr Benavides ended before May 2014.[43] It was this finding that justified a conclusion that Ms Chou did not comply with s.101 of the Migration Act.
[43] CB 395 at [37]
In reaching this decision, the Tribunal proceeded on the basis that the evidence of third parties adduced in support of the applicants’ case “does not address [Ms Chou’s] motivations and commitments”.[44] The applicants contend that that conclusion was not correct. Ms Chou’s sister gave a statement addressing Ms Chou’s commitment, in which the sister stated:[45]
I have been witness to Chandy and Luis’s relationship from the beginning, because I introduced Chandy to Luis. I believe their marriage was sincere and genuine. Chandy gave birth to her son Sebastian in 29th august 2014. They were both very happy when he was born. But soon after the birth, their marriage fell apart. Chandy was very upset at this time…
[44] CB 392 at [24]
[45] CB 147
The Tribunal will commit jurisdictional error if it fails to take into account a relevant, cogent and important piece of evidence.[46] Whilst being mindful of the need to observe the distinction between judicial review and merits review, it remains the position that the Tribunal is required to engage in a proper, genuine and realistic manner with the evidence.[47] The Tribunal’s reasons in this case at [24] dismissed in brief terms the relevance of the evidence from third parties because it did not address Ms Chou’s motivations and commitments. On this matter, the applicants submit that the Tribunal was simply incorrect or, at best, betrayed an incomplete understanding of the evidence. The Tribunal’s dismissive approach is said to suggest that it did not engage in the required manner with the factual material advanced by Ms Chou in support of her case.
[46] See Minister for Immigration v SZRKT[2013] FCA 317; (2013) 212 FCR 99 at [111]- [112]; Minister for Immigration v SZSRS[2014] FCAFC 16; (2014) 309 ALR 67 at [50], Minister for Immigration v MZYTS[2013] FCAFC 114; (2013) 230 FCR 431 at [70]
[47] Singh v Minister for Home Affairs [2019] FCAFC 3 at [36]
I prefer the Minister’s submissions on this ground.
Ms Chou identifies the statement from her sister as going directly to the question of her motivations and commitments. She submits that the Tribunal was either incorrect in appraising this particular statement as not going directed to the question of Ms Chou’s motivations and commitments, or at least betrayed an incomplete understanding of the evidence.
Mindful of the trite caution that the language of “proper, genuine and realistic consideration”, when those words are taken out of context and without understanding their original provenance, are epithets apt to encourage a slide into impermissible merits review,[48] Ms Chou’s argument invites the Court to take a different view of the characterisation of certain evidence that was before the Tribunal. In circumstances where the Tribunal’s dismissal of the third party evidence was on the basis that it did not go “directly” to the question of Ms Chou’s motivations and commitments, the Tribunal’s characterisation of Ms Chou’s sister’s statement was open to it. The sister’s evidence, as extracted in the grounds of the amended application, merely offered an opinion as to the sincerity of the marriage with Mr Benavides, and an observation of their happiness when Sebastian was born. The statement did not, on its face, go directly to the question of Ms Chou’s motivations and commitments.
[48] Swift v SAS Trustee Corporation [2010] NSWCA 182, [45] (Basten JA), cited by the High Court in Minister for Immigration v SZJSS & Ors (2010) 243 CLR 164 at [30]
Further, the Tribunal at various points throughout its decision record referred to the applicant’s supporting evidence, including medical evidence from Dr Kwok, indicating an engagement with that material. Relevantly, the Tribunal referred elsewhere to Ms Chou’s sister’s statement at [59] and [71]. In any event, it was open to the Tribunal to address the evidence as it did at [24].
Ground 3A – registration of Sebastian’s birth
Applicants’ contentions
The applicants complain that the Tribunal found that Ms Chou “breached the law” and committed an offence under s.57 of the Births, Deaths and Marriages Registration Act 1995 (NSW) (the BDM Act).[49] This is a reference to Ms Chou naming Mr Benavides as Sebastian’s father on Sebastian’s birth certificate.
[49] CB 399 at [57], see also at [22] and [73]
This conclusion is said to have involved an error of law. Section 57 prohibits the making of a representation known to be false in a material particular in relation to an “application, notice or document” under the BDM Act. Section 15 of the BDM Act makes the parents of a child responsible for the registration of its birth. Section 18 permits the Registrar to record information about the identity of a child’s parent in the Register in certain circumstances.
Importantly, registration of parentage under the BDM Act is not limited to biological parents. The concept of legal parentage is wider than that of biological parentage.[50] In any event, Ms Chou was entitled to rely upon, and the Registrar entitled to act upon, a legal presumption that Ms Chou was Sebastian’s parent.[51] In those circumstances, there was no offence in naming Mr Benavides as Sebastian’s parent. The applicants contend that the Tribunal’s conclusion that Ms Chou had committed an offence was, therefore, based on a misapprehension of the definition of “parent” in the BDM Act and involved a material error.
[50] see LU v Registrar of Births Deaths and Marriages (No.2) [2013] NSWDC 123 at [31]-[32]
[51] section 9 of the Status of Children Act 1996 (NSW) (Status of Children Act) and s.18(f) of the BDM Act
Alternatively, the applicants submit that the Tribunal failed to comply with s.360 of the Migration Act in respect of this issue. It was put to Ms Chou that she had been untruthful in naming Sebastian’s father as Mr Benavides and, at one point, this may be a breach of the law.[52] However, the Tribunal never informed Ms Chou that an issue in the review was whether she had committed a criminal offence. This is said to have been a serious matter which, in fairness, should have been raised. Had it been raised, it would have been open for Ms Chou to make the submission (made above) that “parent” within the meaning of the BDM Act is not limited to biological parent. She was deprived of this opportunity.
[52] T 12.40-45, T 13.12-13, T 40.29-31, T 41.24-26
Minister’s contentions
Ms Chou contends that the Tribunal breached s.359A or s.360 of the Migration Act, or alternatively acted on a wrong construction of the BDM Act in finding that it was an offence under the BDM Act for Ms Chou to have identified Mr Benavides as a parent of her child upon the registration of the birth.
Ms Chou conceded in her evidence to the Tribunal that she had provided incorrect information on the birth certificate by letting Mr Benavides “sign the certificate as the father”.[53] The Tribunal acknowledged the concession at [57]. It was upon this footing that the Tribunal found that Ms Chou had “breached”, that is, failed to comply with, s.57 of the BDM Act[54] which provides that:
A person who makes a representation in an application, notice or document under this Act or in response to a notice under section 44 of this Act (Registrar’s powers of inquiry), knowing the representation to be false or misleading in a material particular, is guilty of an offence.
[53] applicant’s statutory declaration made on 31 January 2018: CB 370
[54] erroneously referred to by the Tribunal as s.53
The false or misleading representation was, as conceded by Ms Chou in her evidence, that Mr Benavides was the father of Sebastian, and Ms Chou knew this not to be the case at the time of the representation.
In relation to Ms Chou’s denial of procedural fairness allegation, Ms Chou was put on notice by the Tribunal about its concerns with her having given a false and misleading representation to the Registry of Births, Deaths and Marriages.[55] The Tribunal later informed Ms Chou that it would consider her provision of false information to a government agency, being the Registry of Births, Deaths and Marriages.[56] Further, Ms Chou was given the opportunity, of which she appears not to have taken advantage in her several submissions, to make further submissions regarding the issue of providing false information to the Registry of Births, Deaths and Marriages.[57] At no point did Ms Chou, represented by a migration agent, advance any argument to the Tribunal that she had not, or might not have, provided false and misleading information contrary to s.57 of the BDM Act. Ms Chou seeks to advance that contention before the Court, for the first time. The Minister contends that Ms Chou had every opportunity before the Tribunal to make this point. The forensic context in which Ms Chou, through her representatives, ran the case before the Tribunal cannot be ignored.[58] The Tribunal did not breach s.360 of the Migration Act, or otherwise deny Ms Chou procedural fairness.
[55] T 12.23–T 13.34
[56] T 40.26–T 41.37
[57] CB 354-376
[58] Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 at [1] (Gleeson CJ)
Ms Chou contends further that the Tribunal acted on a wrong construction of the BDM Act, and that there was no offence in naming her husband as Sebastian’s parent because the Registrar was entitled to act upon a legal presumption that Ms Chou’s husband was the parent of Sebastian. However, the presumptions to parentage under Division 1 of Part 3 of the Status of Children Act are generally rebuttable presumptions.[59] The Minister submits that in the present case, not only did Ms Chou know at the time she registered the birth that Mr Benavides was not the biological father of Sebastian, but a DNA test was conducted at around the time of the issue of the birth certificate proving Mr Ben’s parentage.
[59] see s.15
In the circumstances, and having regard to Ms Chou’s concessions, the Minister contends that the Tribunal did not misconstrue the BDM Act.
Resolution
In my view, the timing of the DNA test and the registration of the birth of Sebastian are important. Sebastian was born on 29 August 2014. The birth was registered shortly thereafter. The results of the DNA test became available on 6 October 2015.[60] The register was corrected on 18 November 2015.[61] The Tribunal stated at [57]:
The applicant told the Tribunal that she obtained the initial birth certificate for the child which identified the sponsor as the father of that child. She knew that information was incorrect. The Tribunal finds that the applicant has given false or misleading information to the Registry of Births, Deaths and Marriages. It is an offence under s.53 of the Births, Deaths and Marriages Registration Act 1996. The applicant explained to the Tribunal that she could not disclose the paternity information to her husband but the Tribunal does not consider that the applicant’s marital concerns justify the breach of the law.
[60] CB 94.2
[61] CB 86
In was in my view unnecessary and inappropriate for the Tribunal to accuse Ms Chou of committing an offence under the BDM Act. It may be accepted that Ms Chou had a better idea that either Mr Benavides or Mr Ben about the parentage of Sebastian. When Sebastian was born, however, Ms Chou was still married to Mr Benavides and it is unremarkable that Ms Chou chose not to raise the issue of parentage with him at that time. The issue was likely to impact upon their relationship, as indeed it did when it was raised. The suspicions of a mother, however well informed, remain just that in the absence of DNA evidence. Once the results of the DNA test were known, Ms Chou acted promptly to correct the register. If circumstances had been different, and Mr Benavides (rather than Mr Ben) had been willing to accept Sebastian as his son, then it may not have been necessary to alter the register, given the broad legal concept of parentage.
It was not for the Tribunal to brand Ms Chou as a criminal. It should not have done so. The issue for the Tribunal, however, was whether Ms Chou had misled the Minister’s Department. On Ms Chou’s own evidence, the Tribunal was entitled to find as it did at [34]-[35] of its reasons that she had done so:
Further, the applicant provided a declaration to the delegate in May 2014 in which she referred to having a baby with the sponsor, implying the sponsor was the father of the child. There is no suggestion in that declaration that anyone other than the sponsor was the father of the child and a reasonable reading of the statement evidences the applicant's intention to identify the sponsor as the father of the unborn child. That information was incorrect and the applicant concedes that in her response to the NOICC. In her submissions to the Tribunal of 16 January 2018 and 2 February 2018 the applicant argues that the information was not incorrect but reflected her intention to raise the child with the sponsor. The applicant refers to the ordinary use of the word 'our' as 'belonging to or associated with the speaker and one or more other people mentioned or easily identified'. She claims the reference to 'our baby boy' can be interpreted in many ways and may refer to non-biological children. The Tribunal acknowledges that this may be so but in the circumstances of this case, the Tribunal is of the view that the meaning of the word 'our' which the applicant intended in her declaration and which any reasonable person reading that declaration would apply, is that the child was the child of the applicant and the sponsor. This is because the declaration was provided in the context of a partner visa application. It was a requirement for that application that the applicant and the sponsor have a mutually committed relationship that is to the exclusion of all others. The applicant and the sponsor had been residing together and there is no suggestion that the applicant made any mention in her dealings with the Department of having a relationship, including a sexual relationship, with any other person, so the presumption of paternity would be in favour of the sponsor. A clear implication of the applicant's statement is that the child is the child of the applicant and the sponsor. In many other circumstances the reference to 'our baby' could have been a reference to a non biological child but in the circumstances of seeking a partner visa on the basis of an exclusive relationship with no mention of any other relationship or sexual contact, the most obvious implication of the applicant's statement is that the child was the child of the applicant and the sponsor. Thus, the Tribunal does not accept that the applicant referred to 'our baby' because she intended to raise the child with the sponsor. The Tribunal is of the view that the applicant referred to having 'our baby' with the biological father of the child.
The applicant's evidence is that she knew from the start that the child was not the sponsor's, so the information was intentionally misleading, but in any case, s.100 provides that an answer is incorrect even if the applicant was unaware that it was incorrect. Again, the information the applicant gave about the paternity of the child is taken to be an answer under s.99 of the Act and that answer is incorrect. That in itself is sufficient to give rise to grounds for cancelling the visa because the applicant did not comply with s.101(b) of the Act.
I accept the Minister’s submissions that Ms Chou was not denied procedural fairness by the Tribunal in relation to this issue. Ms Chou was plainly on notice that the genuineness of her relationship with Mr Benavides was an issue in the review, as was the parentage of Sebastian, and Ms Chou’s own statements concerning that parentage. Ms Chou was given a fair opportunity to deal with that issue. Paragraph [57] of the Tribunal’s reasons is an unfortunate diversion but does not, of itself, invalidate the Tribunal’s decision.
Ground 3B – apprehended bias and procedural fairness
The applicants contend that the Tribunal conducted the hearing in a manner which gave rise to a reasonable apprehension of bias or which otherwise involved a departure from the procedural fairness requirements incorporated within s.360 of the Migration Act. Ms Chou seeks to bolster her contention by reference to the transcript of the Tribunal hearing.[62]
[62] T 13.3-5, T 17.36-40; T 51.30-34; T 59.42-54; T 60.6-10 and T 60.30-34
The test of apprehended bias is whether a fair minded lay observer with knowledge of the material objective facts might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question at hand.[63] It may be accepted that the Tribunal is entitled to entitled to test an applicant’s evidence vigorously. However, if the effect of the questioning is that an applicant is “overborne or intimidated”, then “a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view”.[64]
[63] Isbester v Knox City Council (2015) 255 CLR 135 at [20]-[28]
[64] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [31]
It may be accepted that questions of apprehended bias involve questions of degree. It is important to look at the manner in which the hearing was conducted as a whole, rather than isolate particular statements taken out of their relevant context. However, the applicants contend that the Tribunal’s approach in this case went beyond legitimate, vigorous questioning; the Tribunal’s approach was suggestive of a closed mind.
In particular, the applicants complain that the Tribunal drew a dichotomy between “a wonderful, loving, relationship” and an indifferent or obligatory relationship. It pressed Ms Chou to identify when her relationship with Mr Ben changed from the former to the latter.[65] Ms Chou’s evidence was to the effect that there was no material change in circumstance; her relationship with Mr Ben had always been one of obligation arising from their shared parenthood, but that her happiness varied over time due to Mr Ben’s distance and participation in the relationship. The questioning is said to have miscarried because of the Tribunal’s insistence on the “false dichotomy” it posited.[66] Moreover, the Tribunal’s repeated insistence that Ms Chou had told the Minister’s Department in June 2016 that she had a “wonderful, loving relationship” with Mr Ben is said to have been simply inaccurate.[67] Regrettably, that was no more than the Tribunal “putting words in Ms Chou’s mouth”. What Ms Chou in fact said in June 2016 was that after Mr Benavides left her, she began to “rely on [Mr Ben] more and more” and that the relationship developed to a point where she knew Mr Ben loved her.
[65] T 24, see also T 51.13-35
[66] Minister for Immigration v Angkawijaya (2016) 236 FCR 303 at [3]
[67] T 22.18, T 23.17, T 27.12-13, T 64.35
More generally, the applicants submit that, reading the transcript as a whole, an impression arises that the Tribunal disbelieved Ms Chou at every turn and repeatedly said so. The applicants contends that, by the end of the hearing, the reader of the transcript is left with the impression that Ms Chou is so overborne that she was resigned to the fact that there was nothing she could say which would alter the position taken by the Tribunal.[68] In the circumstances, they contend that the reasonable lay observer appraised of the relevant facts, might reasonably apprehend that the Tribunal had already made up its mind and might not bring an impartial and unprejudiced mind to the decision before it.
[68] e.g. T 51.37, 51.41-42, T 52.04, T 52.13, T 52.20, T 52.26, 52.31
I reject Ms Chou’s contention that the Tribunal’s decision was affected by an apprehension of bias. The principles relevant to apprehended bias are not in dispute. I accept the Minister’s submissions in respect of this ground.
An aspect of Ms Chou’s contention is that the Tribunal member relied on a false dichotomy between a loving relationship and an obligatory relationship. The Tribunal posited no dichotomy. Rather, the Tribunal member throughout the hearing expressed (in no uncertain terms) the difficulty she was having in reconciling Ms Chou having sponsored Mr Ben for a partner visa (thus, having represented to the Minister’s Department that she was in a continuing and genuine relationship with him) and Ms Chou’s evidence in response to the cancellation of her visa where she represented that she had not been in such a relationship.
Further, the Tribunal did not fall into the kind of error identified by the Full Federal Court in Angkawijaya. The Tribunal’s reference during the hearing to Ms Chou’s “wonderful, loving relationship” was not an attempt by the Tribunal to quote Ms Chou, but was the impression the Tribunal took from her evidence. For instance at T 22.15 the Tribunal member said that:
I’m looking at your statutory declaration which you have given with your husband’s visa – partner visa application in which you are suggesting you have a wonderful, loving relationship. You do want to be together. You are very happy together and everybody supports your relationship.
(emphasis added)
A reasonable apprehension of bias does not arise from the Tribunal’s use of language to describe the effect of Ms Chou’s evidence. The Tribunal’s remarks based upon Ms Chou’ statutory declaration[69] were open to it and not indicative of perceived pre-judgment.
[69] at CB 88-89
The other aspect of the apprehended bias argument is that the transcript of the Tribunal hearing suggests that the Tribunal member “disbelieved Ms Chou at every turn”. There is however no difficulty with a Tribunal member expressing disbelief with an applicant’s account, perhaps even all of an applicant’s account. In some cases, procedural fairness will require a decision-maker to state in clear terms the concerns the decision-maker is having with a person’s evidence. The applicant must establish that a fair-minded lay observer might perceive that the Tribunal might not have brought an impartial mind to the consideration of the matter. The Tribunal is under no obligation to refrain from forming a view on the evidence as it unfolds. The question is whether on a consideration of all of the relevant circumstances, the Tribunal might be perceived to have had a closed mind.
The transcript references pinpointed by the applicants in their supplementary submissions do not, taken together with the factors referred to above, result in a conclusion that the Tribunal’s decision was affected by apprehended bias.
The transcript references set out by the applicants must be read in context of the hearing as a whole. That the Tribunal member might be perceived to have been closed minded about the truthfulness of Ms Chou’s evidence, or the evidence of other witnesses, is inconsistent (in the first instance) with the Tribunal having convened a lengthy hearing during which Ms Chou, and other witnesses, were given the opportunity to present their case. That the Tribunal expressed during the hearing its difficulty in believing aspects of Ms Chou’s account does not point to an apprehension of bias. As Flick J remarked in SZRUI v Minister for Immigration[70] “robust and forthright testing of the [applicant's] claims by the Tribunal ... does not sustain a finding of apprehended bias”.
[70] [2013] FCAFC 80
Further, at [27] Flick J highlighted the line between an indication of pre‑judgment and the requirement to afford procedural fairness to an applicant in a Tribunal member expressing concerns with the evidence given. This is important, because a Tribunal member may have real concerns that an applicant is not telling the truth, and it may be necessary in a particular case that an applicant be given an opportunity to address that concern. In the present case, a prominent concern of the Tribunal was that Ms Chou had at various times varied her representations to the Minister’s Department in order to suit her circumstances. This concern was raised on a number of occasions, including at T 22.35. It was appropriate for the Tribunal in this context to put those concerns to Ms Chou. This does not support a finding of apprehended bias.
The same may be said in relation to the Tribunal’s questioning of Mr Ben.[71] As the transcript reveals, having expressed its concerns with the truthfulness of the evidence, the Tribunal does not stop there, but goes on to ask further questions about the subject matter. This demonstrates that the Tribunal was open to be satisfied of the truthfulness of the evidence being given, and further, engaged in detailed questioning of the witness in order to procure additional evidence.
[71] for instance at T.60.6-10 and T.60.30-34
In the present case, what the reasonable lay observer would also take into account is that the Tribunal:
a)conducted a five hour hearing at which evidence was taken from Ms Chou and from Mr Ben;
b)invited Ms Chou to comment on certain adverse information under s.359AA of the Migration Act;
c)conducted the hearing in the presence of Ms Chou’s migration agent;
d)took into account in its decision written submissions and statements from Ms Chou, given both before and after the hearing; and
e)allowed breaks throughout the hearing to permit Ms Chou to confer with her representatives.
Ms Chou made no allegation to the Tribunal of any perceived unfairness in the manner in which the Tribunal member conducted the hearing, notwithstanding the presence of the migration agent. Further, a passing display of bad temper by a Tribunal member will not give rise to a reasonable apprehension of bias.[72] In VFAB v Minister for Immigration[73] at 126–7 Kenny J opined that:
if a Member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error.
[72] Galea v Galea (1990) 19 NSWLR 263 at 279–80 (Kirby ACJ)
[73] [2003] FCA 872; (2003) 131 FCR 102
In all of the circumstances no apprehended bias is identified.
Ground 4 – operation of s.140(2) of the Migration Act
The Tribunal affirmed the decision of the delegate to cancel Sebastian’s subclass 820 visa. As noted above, by reason of s.78 of the Migration Act, Sebastian was taken to have been granted a subclass 820 visa because his mother held the same type of visa at the time of his birth.
The applicants contend that by reason of regulation 2.08 of the Regulations, Sebastian was deemed to have been included in his mother’s pending application for a subclass 801 visa. However, for some reason that is not explained in the relevant materials, Sebastian was not granted a subclass 801 visa at the time when his mother was granted that a subclass 801 visa. On that basis, Sebastian continues to have an unfinalised application for a subclass 801 visa and, pending the determination of that application, continues to hold a subclass 820 visa.
Section 140 of the Migration Act relevantly provides:
(1) If a person’s visa is cancelled under section 109 (incorrect information) … a visa held by another person because of being a member of the family unit of the person is also cancelled.
(2) If:
(a) a person’s visa is cancelled under section 109 (incorrect information) …; and
(b) another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;
the Minister may, without notice to the other person, cancel the other person’s visa.
(3) If:
(a) a person’s visa (the cancelled visa) is cancelled under any provision of this Act; and
(b) the person is a parent of another person; and
(c) the other person holds a particular visa (the other visa), that was granted under section 78 (child born in Australia) because the parent held the cancelled visa;
the other visa is also cancelled.
The applicants submit that the Tribunal correctly held that s.140(1) did not apply to Ms Chou. Rather, it held that there was a power to cancel the visa under s.140(2). For two separate reasons, that conclusion is said to have been incorrect.
First, the applicants submit that, in its terms, the power in s.140(2) is triggered where “a person’s visa” is cancelled and “another person …holds a visa only because the person whose visa is cancelled held a visa”. It is said to be tolerably clear from the language of the provision that the visa that is cancelled must be the same visa that was “held” by the first person and which gave rise to “another person” coming to hold a visa. That is, there is a necessary connection between the cancelled visa and the visa of “another person” which can be cancelled by operation of s.140. That was not the case here because the “cancelled visa”, Ms Chou’s subclass 801 visa, was not the visa which was held at the time of Sebastian’s birth and which triggered the operation of s.78 of the Migration Act.
Secondly, the applicants submit that there was no power to cancel Sebastian’s visa under s.140(2), because s.140(3) created a specific mechanism for the cancellation of visas granted by operation of s.78 of the Migration Act. That mechanism had certain express limitations including that the “cancelled visa” must be the visa held by the parent at the time of birth and which gave rise to the grant of visa by operation of s.78. In this case, s.140(3) was not available because the “cancelled visa”, Ms Chou’s subclass 801 visa, was not the visa which was held at the time of Sebastian’s birth. Given the presence of a specific mechanism in s.140(3) of the Migration Act dealing with the consequential cancellations of visas granted by operation of s.78, it is said not to have been open for the Tribunal to rely on the general power in s.140(2).[74]
[74] Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7; Minister for Immigration v Nystrom (2006) 228 CLR 566 at [59]
I prefer the Minister’s submissions in relation to this ground.
Ms Chou asserts that by virtue of the fact that at the time of the cancellation of her subclass 801 visa, Sebastian held a different visa (a subclass 820 visa), it was not open to the Tribunal to exercise power under s.140(2) to cancel Sebastian’s visa. It is not in dispute that s.78 had the effect that Sebastian was taken to have been granted a subclass 820 visa because Ms Chou held that type of visa at the time of Sebastian’s birth. It is also not in dispute that at the time of the cancellation of Ms Chou’s visa, the Minister had not granted Sebastian a subclass 801 visa, and he therefore remained on a subclass 820 visa.
Nevertheless, the Tribunal made no error. The Tribunal took into account at [5][75] a submission made on behalf of Sebastian that the delegate incorrectly identified the statutory provision under which he was granted a partner visa. The Tribunal acknowledged that the decision under review was a cancellation of a temporary visa. The Tribunal found, at [6], correctly, that Sebastian was a person who held a visa only because Ms Chou held a visa, and therefore the cancellation power under s.140(2) was enlivened.
[75] see annexure B to the affidavit of Mr Prince
As set out above, s.140(2) provides:
(2) If:
(a) a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas); and
(b) another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;
the Minister may, without notice to the other person, cancel the other person's visa.
The question posed by the subsection is whether Sebastian held his visa only because Ms Chou held a visa. Section 140(2)(b), by the use of the word “only because”, “should be understood to mean that the person holds a visa by reason of another person having held a visa, in the sense that another person holding a visa was, ‘a condition precedent to the grant of the visa”’.[76] The fact that Sebastian only held his subclass 820 visa by operation of s.78, which deemed him to be granted a visa because Ms Chou held a visa, results in a conclusion that Ms Chou’s holding a visa was a “condition precedent” to the grant of Sebastian’s visa. It matters not that Ms Chou was subsequently granted a permanent visa.
[76] Ara v Minister for Immigration [2017] FCA 130 at [7] (Jagot J), quoting with approval the primary judge
Ms Chou submits further that the power under s.140(2) was not available because s.140(3) made specific provision for the cancellation of visas granted pursuant to s.78 of the Migration Act. However, as Ms Chou acknowledges, the cancellation power under s.140(3) was not available in the present case because of the fact that her cancelled visa was not the visa she held at the time of Sebastian’s birth that resulted in the grant of his visa. By reference to the scope and purpose of the provision, there is not to be read into the provision any qualification or limitation that would prevent the engagement of the power in circumstances where the “first person” held a different visa from the “second person”. As is made clear by the express language in s.140(3), had the Parliament wished to constrain the availability of s.140(2) in the manner contended for by Ms Chou, it could have, and would have, used express language to achieve that end. No error is established.
Ground 5 – cancellation of Sebastian’s visa
Applicants’ contentions
Ground 5 is dependent on Grounds 2, 3, 3A and 3B above. In cancelling Sebastian’s visa, the Tribunal proceeded on the basis that Ms Chou’s visa had been cancelled, thus triggering the power in s.140(2). If, however, Ms Chou’s visa was not validly cancelled, it must follow that there was no basis for cancelling Sebastian’s visa.
Minister’s contentions
In relation to Ground 5 the Minister contests the proposition advanced that a necessary consequence of a finding of jurisdictional error in the Tribunal’s decision affirming the cancellation of Ms Chou’s visa would be the invalidation of the Tribunal’s decision in relation to Sebastian’s visa. If the first decision is affected by jurisdictional error, Ms Chou may be entitled to an order remitting the matter to the Tribunal for reconsideration. However, Ms Chou’s visa would remain cancelled because the delegate’s cancellation decision remains intact.
Resolution
The Minister’s submission is correct. In any event, no jurisdictional error having been established in the decision of the Tribunal, the point is moot.
Conclusion
I conclude that Ms Chou has not established that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 8 November 2019