Dare Undergarment Pty Ltd v Minister for Immigration
[2009] FMCA 921
•24 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DARE UNDERGARMENT PTY LTD v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 921 |
| MIGRATION – Alleged jurisdictional errors – attempted merits review – consideration of weight to be given to relevant document of unchallenged authenticity. |
| Migration Regulations 1994 |
| Shrestha & Minister for Immigration and Multicultural Affairs [2001] FCA 1578 Ejueyitsu v Minster for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 151 FCR 289 |
| Applicant: | DARE UNDERGARMENT PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 207 of 2009 |
| Judgment of: | Burchardt FM |
| Hearing date: | 3 August 2009 |
| Date of Last Submission: | 3 August 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 24 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Gibson |
| Solicitors for the Applicant: | FCG Legal Pty Ltd Lawyers |
| Counsel for the Respondents: | Mr R. Knowles |
| Solicitors for the Respondents: | DLA Phillips Fox Lawyers |
ORDERS
The application filed 19 February 2009 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 207 of 2009
| DARE UNDERGARMENT PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this matter, the applicant alleges three grounds of application, each of which is said to constitute jurisdictional error. These three grounds are articulated under the heading “Particulars” in the application and they can be paraphrased as follows:
a)the Migration Review Tribunal (“the Tribunal”) erred in finding that it was not satisfied that the visa applicant had personal attributes and an employment background relevant to and consistent with the nature of the role of importer, in view of the facts that the Tribunal did accept in relation to her claims;
b)the Tribunal erred by imposing a standard of proof in finding that it was not satisfied that the visa applicant had proved aspects of her case by “conclusive evidence”; and
c)the Tribunal failed to consider properly and give appropriate weight to a relevant consideration / material, namely the visa applicant’s reference (contained at CB66).
For the reasons that follow, I do not think that these criticisms are made out and it follows that the application must be dismissed.
Background facts
As the applicant’s facts and contentions accurately reveal at paragraph 8, “the applicant’s contentions are generally contentions of law. The facts are set out at CB245 to 250 of the decision”.
Some of the background facts are set out helpfully and uncontroversially in the first respondent’s contentions of fact and law, which I paraphrase hereunder.
On 29 June 2007, Ms Feng, who was the visa applicant, applied for a Temporary Business Entry (Class UC) visa, subclass 457.
She was sponsored by the applicant, which proposed to employ her in the position of importer / exporter, which position was said to fall within the terms of the Australian Standard Classification of Occupations (“ASCO”) Code, 1192-11.
The applicant, Dare Undergarments Pty Ltd, is owned and controlled by Ms Feng’s sister and that lady’s husband. For convenience, I will refer to the visa applicant as Ms Feng and the applicant for review as the applicant.
Ms Feng submitted supporting documentation in support of her application through her representative in Australia. She lodged with the Department various documents including the reference from her company at CB66, to which I have already referred.
On 18 October 2007, two officers of the Department visited Ms Feng’s place of employment in China and prepared thereafter a site report (CB109 to 110). The findings of that visit led one of the officers of the Department to conclude that Ms Feng’s claims were not genuine.
On 4 December 2007, a delegate of the first respondent refused to grant Ms Feng a temporary business visa because she did not meet the requirements of subclause 457.223(4) of Part 457 of schedule 2 to the Migration Regulations 1994 (“the Regulations”).
Thereafter, the applicant applied to the Tribunal for a review of the delegate’s decision, and in due course lodged written submissions and other material with the Tribunal (CB202 to 215). Among other things, the representative noted that the duration of the site visit was 40 minutes.
On 14 January 2009, the Tribunal conducted a hearing. Ms Feng and the two directors of the applicant gave oral evidence. Ms Feng’s representative was present and made submissions.
On 15 January 2009, Ms Feng’s representative lodged further written submissions and other material with the Tribunal (CB224 - 237) which, inter alia, submitted that the site visit report contained an inconsistency in its description of the activities of the visa applicant’s employer. That inconsistency is set out at CB224 and went to the question as to whether or not the company for which Ms Feng worked was indeed involved in import / export.
This was important because the offer of a job to Ms Feng from the applicant was as an importer (CB67).
On 23 January 2009, the Tribunal handed down its decision dated
22 January 2009 by which it affirmed the delegate’s decision.
On 19 February 2009, the applicant applied for judicial review of the Tribunal’s decision.
The first ground: Misconstruction and/or misunderstanding of time of decision criterion in Clause 457.223(4)(d)
What the applicant submits here in substance is that given some of the findings made by the Tribunal, the Tribunal’s failure to accept that Ms Feng met the requirement of clause 457.223(4)(d) demonstrated a jurisdictional error because of a misconstruction and/or mis-understanding of the sub-regulation.
Sub-regulation (d) reads as follows:
“The applicant has personal attributes and an employment background that are relevant to, and consistent with, the nature of the activity to be performed.”
At paragraphs 16 to 21 of the applicant’s contentions of fact and law, the argument is set out in a helpful summary.
It is true, as Ms Feng asserts, that the Tribunal accepted that:
a)the company for which Ms Feng had been working and engaged in import and export activity in the past;
b)the responsible person recorded on the expired licence, which licence specifically referred to the engagement in processing imported materials, was Ms Feng; and
c)Ms Feng was and is in a senior management position with the company.
While there is force in this submission, it is important to remember also those aspects of the Tribunal’s decision to which the first respondent’s written submissions drew attention.
The Tribunal accepted that the visa applicant had provided assistance in China to her sister and the applicant but did not accept that this assistance demonstrated on the part of Ms Feng an employment background relevant to or consistent with the activity of an importer (CB251).
The Tribunal also considered the visa applicant’s claimed involvement in her own business, but did not accept it (CB251).
The Tribunal noted that in relation to the visa applicant’s employment duties in China, her oral evidence was inconsistent with the written submissions of her representative. At the time of giving oral evidence before the Tribunal, Ms Feng stated that she spent half of her time at work dealing with matters relating to customs, import or export (CB249). To the opposite effect, however, the representative’s submission suggested that her involvement in such activity had been in the past (CB209).
The Tribunal referred to documents concerning the involvement of the visa applicant’s Chinese employer in import and export activities and noted that these all related to dates between 1999 and 2004.
In the upshot, the Tribunal accepted that the documents relating to the activities of Ms Feng’s Chinese employer indicated that the company had engaged in import and export activity in the past and that the visa applicant was recorded as the responsible person on the expired licence. Nonetheless, the Tribunal did not accept that this was “conclusive evidence” that Ms Feng was personally involved in these activities.
The Tribunal also considered and accepted the argument of the visa applicant’s representative that the site visit report contained the inconsistency complained of, but said that it did not consider that the inconsistency rendered the whole report unreliable.
The Tribunal also noted the correspondence from Ms Feng’s Chinese employer (CB66) and stated at CB252:
“On balance, having regard to all of the evidence in relation to this issue, I do not accept the work reference to be reliable evidence that the visa applicant’s work history includes relevant activity to the nominated position.”
It is the Tribunal’s obligation to examine the evidence and come to conclusions upon it. The decision of the Tribunal clearly shows that the Tribunal understood the test it was obliged to address.
In substance, the applicant’s application seeks to review the merits of the Tribunal’s finding and this, in my view, is not permissible.
It follows therefore that the Tribunal did not fall into jurisdictional error in this regard.
Ground 2: The imposition of an impermissible standard of burden and standard of proof
This ground springs from paragraph 55 of the Tribunal’s reasons for decision (CB252). Having referred to the documents earlier described, the Tribunal said:
“I accept these documents indicate that the company where the visa applicant has been working engaged in import and export activity in the past; and the ‘responsible person’ recorded on the expired licence is the visa applicant. However, I do not accept this to be conclusive evidence that the visa applicant was personally involved in these activities.”
The applicant submits that it is clear that a burden of proof cannot be imposed in migration review cases. So much was common cause between the parties.
The applicant submitted that the use of the phrase “conclusive evidence” shows not only that a burden of proof had been imposed, but a burden at a higher level than the balance of probabilities in any event.
In this regard, reference was made to the observations of Gray J in Shrestha & Minister for Immigration and Multicultural Affairs [2001] FCA 1578 at [22], where his Honour said:
“It must be remembered that s116(1) of the Migration Act provides a power to cancel a visa if the Minister is “satisfied” that one or more of the grounds specified in that subsection has been made out. In exercising its power of review, the Tribunal stands in the same position as a delegate of the Minister, with all the powers and discretions conferred on that person. See s349 of the Migration Act. In the context of a statutory provision requiring that a decision-maker be “satisfied” of a state of facts, it is not unreasonable to apply the standard of balance of probabilities. All that this means is that the decision-maker is satisfied that it is more probable than not that a certain state of affairs existed. I note that, in the context of non-adversarial administrative decision making, the provision in s120(4) of the Veterans Entitlements Act 1986 (Cth) requiring a decision-maker to decide according to its “reasonable satisfaction”, has been held to require the adoption of the standard of proof described as the balance of probabilities.”
In Ejueyitsu v Minster for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 151 FCR 289, at [36] Weinberg J quoted the following extract from a decision of Drummond J:
“To say that notions of onus of proof are irrelevant is not, however, to say that it is not in some circumstances appropriate for the Tribunal to have regard to common law standards of proof, as opposed to the incidence of the burden of proof, and to reach conclusions of fact on some matters only if satisfied as to the existence of those facts “on the balance of probabilities arising from the available information before the decision maker.”
What I would, with respect, take from those passages is that, while it is impermissible to apply a burden of proof to an applicant in proceedings of this sort, nonetheless, in considering whether or not a state of satisfaction has been reached, it may, at least in cases such as these, be appropriate to approach the matter on the balance of probabilities.
It is clear therefore that if what the Tribunal really meant was that
Ms Feng needed to prove anything, let alone on the basis of a standard of proof described as conclusive, it fell into error.
The real argument between the parties here is what the decision of the Tribunal can be taken to mean. The applicant, as I have said, pointed to the terms of paragraph 55 of the decision and said, in effect, that it meant what it said.
Counsel for the first respondent, on the contrary, said that all the Tribunal meant was that an affirmative finding in respect of the matters to which it referred did not necessarily immediately lead to a conclusive triumph on the part of the applicant. It was put that, taken as a whole, the reasons showed that that was what the Tribunal meant.
I think that the submission of counsel for the first respondent is correct. What the Tribunal seems to me to have been doing in paragraph 55 was evaluating a particular part of the evidence. The Tribunal plainly accepted that the documents were valid documents (ie not forged or otherwise false), but did not accept that that was the end of the matter. The Tribunal said in the same paragraph:
“On balance, having regard to all of the evidence in relation to this issue, I do not accept the work reference to be reliable evidence that the visa applicant’s work history includes relevant activity to the nominated position. I do not accept the visa applicant’s claim that she described her work to include as much relevant activity to the investigating officers and that it would all be omitted from the report”.
Although perhaps that paragraph is not as well expressed as it might be, taken with the reasons as a whole, it seems clear to me that the Tribunal was not imposing a burden of proof upon the applicant; still less imposing a burden of proof at a level requiring conclusive evidence. Rather, the Tribunal was evaluating the totality of the evidence, as it was entitled to do. Any inadequacies of expression of the reasoning (a matter I would be the last to be in a position properly to complain about) does not, in my opinion, produce the result for which the applicant contends.
Ground 3: Improper disregard of corroborative evidence
It is true that the letters from Ms Feng’s employer (CB66) specifically referred to aspects of the task that Ms Feng was said to have conducted, including those of importer or exporter. The Tribunal, as I have set out, did not accept that that reference was reliable evidence that the visa applicant’s work history included relevant activity to the nominated position.
The complaint made here, in short, by the applicant is that given that the document was not impugned as to its authenticity or the genuineness of its contents, the Tribunal nonetheless simply dismissed it.
At paragraph 35 of the applicant’s written submissions, it was said that:
“In the light of what is accepted by the Tribunal and the document on its face it is difficult if not impossible to see how the best evidence available of what the Visa Applicant did was genuinely considered and that the tribunal intellectually turned its mind to its contents.”
Debate turned to the authorities on this issue and both parties noted cases in which either another member of this Court or members of the Federal Court of Australia had found against an applicant without adequately dealing with unchallenged material before it.
With the greatest of respect, I have no difficulty in accepting the force of the case as set out at paragraphs 37 to 41 of the applicant’s contentions of fact and law. I also accept that this is not a case where the witness’s credit has been so badly destroyed in cross-examination that it was possible to make findings of fact on that evidence alone and simply disregard any corroborative evidence.
Here, however, the difficulty is that there was other evidence. I have referred to it earlier in my extracts from the first respondent’s contentions of fact and law.
It is true that the Tribunal did not make any finding to the effect that the letter from the employer was forged or otherwise simply wrong.
Rather, however, it seems to me that in an essentially fact-finding situation such as this, the letter was one thing that the Tribunal had to consider, and it did so.
It cannot, in my view, be the case that in every instance where an applicant produces a document (bearing in mind that the author of the document is, for obvious reasons, not available to give evidence and/or be cross-examined) a failure to find that the document is forged or fraudulent inevitably leads to the proposition that it must be accepted.
The Tribunal had available to it the evidence of Ms Feng and of her sister. It had inconsistencies to which it referred between Ms Feng’s evidence and the representations made by her representative. It had evidence of the site report, bearing in mind that the Tribunal accepted that there was an inconsistency in the report.
In my view, the Tribunal was obliged to take into consideration the employer’s letter, but was not bound as a matter of law to accept it.
Conclusion
For the reasons I have given, I do not think that the applicant’s position is made out and the application must be dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B. Evans
Date: 24 September 2009
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