Du v Minister for Home Affairs
[2019] FCCA 2210
•18 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DU v MINISTER FOR HOME AFFAIRS | [2019] FCCA 2210 |
| Catchwords: MIGRATION – Review of a decision of a delegate of the Minister – refusal of a visitor visa – delegate not satisfied that the applicant was a genuine temporary visitor – whether the delegate identified a wrong issue, ignored relevant material, made a legally unreasonable decision or was biased considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.29, 55, 57, 338, 474, 477, 501CA Migration Regulations 1994 (Cth) |
| Cases cited: ALA15 v Minister for Immigration [2016] FCAFC 30 DAO16 v Minister for Immigration (2018) 258 FCR 175 Minister for Immigration v AMA16 (2017) 254 FCR 534 Minister for Immigration v Li (2013) 249 CLR 332 |
| Applicant: | JING DU |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 139 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 13 August 2019 |
| Date of Last Submission: | 20 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 18 September 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr G Lu of Cowise Solicitors |
| Counsel for the Respondent: | Ms R Graycar |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application as amended on 16 April 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 139 of 2018
| JING DU |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Ms Du, seeks judicial review of a decision of a delegate of the Minister (delegate) made on 12 December 2017. The delegate refused to grant Ms Du a tourist visa.
The following statement of background facts is derived from the submissions of the parties.
When the visa was refused, Ms Du was advised[1] that no merits review was available. This is because s.338 of the Migration Act 1958 (Cth) (Migration Act), which sets out the decisions that can be reviewed pursuant to Part 5 of the Migration Act, excludes from review decisions made when a person is outside the migration zone.[2] As Ms Du was outside the migration zone, merits review pursuant to Part 5 is not available.
[1] see Court Book (CB) 129
[2] see s.338(2)(b)
The background is somewhat complicated, particularly in light of the fact that Ms Du, while formally seeking review of the decision made in relation to a visa application made on 30 May 2017[3] appears to be contending in her submissions that the application that the decision maker ought to have decided was an earlier application lodged on 13 April 2017.[4]
[3] see CB 74ff
[4] see Ms Du’s submissions at [19]
A brief chronology is as follows:
a)Ms Du applied for a visa on 13 April 2017 (April application);[5]
b)the April application was refused by decision made on 25 April 2017;[6]
c)Ms Du sought judicial review of that decision and by consent, this Court set aside that decision by orders made on 22 September 2017, remitting it to the decision maker and directing her to remake the decision according to law.[7] That order identified the errors to which the parties agreed, namely, that the decision maker had before it prejudicial information that had not been put to Ms Du;
d)in the meantime, Ms Du had lodged a further application for a visa on 30 May 2017 (May application).[8] One of the reasons given in the May application for seeking to come temporarily to Australia was that she had judicial review proceedings pending;[9]
e)Ms Du was notified on 6 September 2017 that the May application had been refused on the basis that, among other things, she had not satisfied the decision maker that she intended to stay in Australia temporarily for the reason the visa was granted;
f)Ms Du’s representative then provided the decision maker with a number of documents (although it is not clear to which application they related) including evidence of her admission to a course of study in the UK,[10] and a number of other documents;[11]
g)during the same period, the Minister was also (re)considering the decision that had been remitted in relation to the April application, the subject of this Court’s September 2017 consent orders;[12]
h)on 13 December 2017, Ms Du was notified that a decision had been made on 12 December 2017 (which was a further decision by the delegate, a different decision maker than the person who made the 6 September 2017 decision). By that decision, the May application was refused.[13]
[5] CB 1-57
[6] CB 59-63
[7] CB 65
[8] see CB 77-121
[9] CB 82
[10] CB 127
[11] annexed to an affidavit of Guitang Lu made on 16 April 2018 and filed in these proceedings on that date
[12] at CB 65 and CB 67-71
[13] see CB 129ff
The application for judicial review annexes by way of affidavit the decision of 12 December 2017, made in response to the May application. Thus that is the application that is under review in this Court. It is also the only decision in relation to which, the Minister submits, this Court has jurisdiction.
The current proceedings
These proceedings began with a show cause application filed on 17 January 2018. Ms Du now relies upon an amended application filed on 16 April 2018. The grounds in both applications are somewhat discursive but are accurately summarised in the Minister’s submissions as follows:
Ground 1: The respondent committed jurisdictional error by identifying a wrong issue and ignoring relevant material: this ground is essentially particularised by the contention that the respondent had no power to review/remake the decision of 6 September 2017 as it was a privative clause decision. That ground also contends that the respondent failed to consider the court orders dealing with the April application, and failed to give proper, genuine and realistic consideration to the evidence.
Ground 2: the decision is illogical, irrational or unreasonable: this is effectively particularised (see particular a) by the argument that the decision could not be reviewed/revisited, and that it was “irrational” for the decision to be made without considering the court order in relation to the April application. It is further contended that the decision to refuse “would be unreasonable” and that there was no logical connection between the respondent’s finding and the evidence.
By ground 3, it is contended that there was a reasonable apprehension of bias. This is said to have arisen essentially from the fact that earlier decisions by the applicant had been refused.
In addition to the court book filed on 19 March 2018, I have before me two affidavits by Ms Du’s solicitor made on 16 January 2018 and 16 April 2018.[14] I also received, over the Minister’s objections, Exhibit A1, which establishes that Ms Du remains a student resident in the United Kingdom.
[14] I received both affidavits subject to relevance and that relevance is effectively limited to background information
Consideration
At the trial I raised with the parties the question whether granting relief would be futile, as the period of the proposed visit by Ms Du had passed. This question was addressed in post hearing submissions by the Minister, which I accept.
At the hearing, I sought clarification as to whether the visitor visa the subject of the application could only be granted for the dates requested in the visitor visa application. The relevant visa in question is a visitor (Tourist) (subclass 600) visa (visitor visa). The primary criteria for the grant of a subclass 600 visa in the Tourist stream are set out in the Migration Regulations 1994 (Cth) (Regulations) subdivisions 600.21 and 600.22.
Neither the Migration Act nor the Regulations expressly limits the power to grant the visitor visa to the particular period of stay sought by an applicant. Rather, for this particular visa it is the delegate who determines the period of the visa.[15] In so doing, the delegate may take into account why an applicant wants to visit and how long an applicant wants to stay. Ms Du contends that the Minister is also required to consider any other relevant matter under subclause 600.211(c).
[15] see s.29 of the Migration Act and subclause 600.512(1) of the Regulations
There does not appear to be any statutory prohibition on the delegate granting Ms Du a visitor visa for a different period of time to that sought in the visa application. However, it is open to a delegate to refuse to grant the visitor visa in circumstances where the purpose and period of the requested travel has passed. Ms Du contends that under s.55(1) of the Migration Act, the Minister must consider any further relevant information the applicant gives the Minister before the Minister has made a decision.
I conclude that the granting of relief would not be futile.
The circumstances surrounding the decision under review are curious. Ms Du has made various visa applications to come to Australia, apparently dating back as early as 2002. It appears that the Minister’s Department has concerns about Ms Du’s bona fides and that those concerns have never been allayed. Among other things, she owns an investment property in Victoria,[16] although she has never visited Australia. Three decisions on visitor visa applications by Ms Du were made in 2017. The first decision made on 25 April 2017 was set aside by orders made by consent in this Court on 22 September 2017. The reason for those orders was that the decision maker had failed to comply with s.57 of the Migration Act in relation to information before the Minister’s Department concerning false representations made by Ms Du in relation to previous visa applications. Nothing has been put before me to explain further what that adverse information is.
[16] CB 57
The second decision was notified on 6 September 2017 and related to a different visitor visa application made by Ms Du. That decision was purportedly vacated and replaced by the decision the subject of these proceedings. Although it is by no means clear, an inference is available that the Minister’s Department had a concern that the second decision was infected with the same error identified by this Court in its orders of 22 September 2017. The current decision appears to have been an attempt to make a decision on Ms Du’s most recent visitor visa application free from that error.
The present decision is notable for the facts that the delegate was not satisfied on information provided by Ms Du that she would only visit Australia temporarily. While it is apparent from the decision what material submitted by Ms Du the delegate was dissatisfied with, it is not apparent what gave rise to the delegate’s concerns. It is possible that those concerns were the same as those bearing upon the two prior decisions, although that is not stated. There is no evidence that the delegate went through any process of disclosure with Ms Du under s.57 of the Migration Act. On the other hand, there is nothing to indicate that that adverse information (whatever it is) had any bearing upon the current decision. The decision is simply silent in that respect.
On the basis of the grounds of review advanced and the evidence and submissions provided in relation to those grounds, I am not persuaded that jurisdictional error has been established. In that regard, I agree with the Minister’s submissions.
Ground 1
By this ground, Ms Du first submits that the delegate had no power to remake the decision made on 5 September 2017 because it was final and conclusive, referring to s.474 of the Migration Act. The Minister contends that if this argument is correct, the application to this Court is incompetent as, on this argument, the only relevant decision amenable to judicial review would have been the decision notified on 6 September 2017. For that decision to be properly the subject of judicial review, the applicant was required to file an application within 35 days of the decision.[17] No such application was filed. Nor has Ms Du sought from the Court an extension of time, pursuant to s.477(2) of the Migration Act, in which to make such an application. Thus this argument cannot assist her in seeking to have the decision (of 12 December 2017) set aside. That is, there could be no utility in Ms Du succeeding in relation to this contention as it would not assist her in any respect, at least until she had made and been granted an application for an extension of time in which to seek judicial review.
[17] see s.477(1) of the Migration Act
While a privative clause decision cannot generally be the subject of challenge, the Court retains jurisdiction to review a migration decision for jurisdictional error.[18] It appears from some aspects of the 5 September 2017 decision that there may have been concerns about the validity of that decision, particularly in relation to a potential denial of procedural fairness and/or a failure to comply with s.57 of the Migration Act.[19] In these circumstances it is arguable that the decision was considered to have been vitiated by a failure of procedural fairness, in which case it can be treated as not having been made.[20] Thus there would be no legal impediment that prevented the Minister from proceeding to (re)make the decision on the May application in December 2017.
[18] see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
[19] see reasons set out at CB 125 referring back to the reasons for refusal previously given and the fact that the delegate “still” has doubts
[20] see Minister for Immigration v Bhardwaj (2002) 209 CLR 597
In relation to the contention put at [19] of Ms Du’s submissions, she has not sought to challenge the re-made decision on the April application in these proceedings and thus the arguments put at [19]-[23] of her submissions cannot succeed.
There is no evidentiary basis for the assertion at [25] of Ms Du’s submissions that the Minister failed to consider the Court order that the April application be reassessed according to law. In any event, the proceedings in this Court do not concern that application.
As for the contentions at [27]-[30], there is no explanation of how it is said that the Minister has failed to give “proper, genuine and realistic consideration” to the merits of the case put in the May application. Nor does the decision in Buadromo v Minister for Immigration,[21] referred to by Ms Du at footnote 5, assist her. This is because the Full Federal Court allowed an appeal from that decision in Minister for Home Affairs v Buadromo,[22] holding, among other things, that it is not necessary for the decision maker to consider each individual statement made in a representation (that case concerned s.501CA(4)); it is sufficient for the decision maker to consider the representations (cf application) as a whole. In circumstances where the matters referred to (financial resources, travel records and information about studies) were all referred to by the delegate[23] and in the absence of any further particularisation as to what it is contended was not considered, this aspect of this ground must also fail.
[21] [2017] FCA 1592
[22] (2018) 362 ALR 48; [2018] FCAFC 151
[23] see CB 131-132
The same applies to the matters identified by Ms Du in her submissions at [31]-[52]. All of the matters identified in those paragraphs go to the merits of the decision, which the Court has no jurisdiction to review. With respect to Ms Du, it is hardly relevant to determining whether the decision maker in this case made a jurisdictional error to consider how the Minister publicly defended decisions made in other cases.
Ground 2
By this ground, Ms Du contends that the decision is “unreasonable, irrational or illogical”, relying on the decisions of the High Court in Minister for Immigration v SZMDS[24] and Minister for Immigration v Li.[25] In the former case, Crennan and Bell JJ set out the test for irrationality or illogicality at [131] as follows:
the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[24] (2010) 240 CLR 611
[25] (2013) 249 CLR 332
As that extract makes clear, SZMDS sets a very high threshold for findings of irrationality or illogically.[26] As Crennan and Bell JJ concluded in SZMDS at [135]:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here.
[26] and see also Gupta v Minister for Immigration (2017) 255 FCR 486 at [34]-[37]; DAO16 v Minister for Immigration (2018) 258 FCR 175 at [30]
The same can be said of the decision here. Moreover, as the Full Federal Court has made clear in Minister for Immigration v Singh[27] the process of review of legal unreasonableness “will inevitably be fact dependent”.[28] Aside from the assertions at [56] and [57] of Ms Du’s submissions, there is no particularisation of this ground, indicating why the decision made was not one that was open to be made, or why it was not a decision that another decision maker might have made. Thus Ground 2 also cannot succeed.
[27] (2014) 231 FCR 437
[28] Singh at [48]
Ground 3
By this ground, Ms Du asserts at [60] of her submissions that there is an apprehension of bias which is demonstrated by what is said at CB 62 in the decision of 25 April 2017, made in relation to the April application. This ground must also fail, for the following reasons:
a)those comments were made by a different decision maker dealing with a different application;
b)more fundamentally, that other decision (the first decision on the April application) was set aside by this Court (with the consent of the parties) on 22 September 2017.[29] The particular issue of which the applicant complains was expressly referred to by the Court in the Court’s orders;[30]
c)neither the 6 September 2017 decision on the May application, nor the decision under review in these proceedings (the December decision at CB 129-133) were made by the decision maker who considered the April application and whose decision was set aside by the Court; and
d)there is no evidence upon which this Court could find that the Minister had “closed his mind to probative evidence of the Applicant’s intention to temporarily visit Australia”.[31]
[29] see CB 65
[30] at CB 65
[31] Ms Du’s submissions at [64]
In ALA15 v Minister for Immigration[32] at [35] the Full Federal Court (Allsop CJ, Kenny and Griffiths JJ) set out the test for reasonable apprehension of bias as follows:
It is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits.
[32] [2016] FCAFC 30
The Full Court in ALA15 continued at [36] by setting out a number of relevant principles[33] which, among other things, included the following:
(a) at least the following two steps are involved in a case involving an allegation of apprehended bias:
(i) there must be an identification of what it has said might lead a [decision maker] to decide a case other than on its legal and factual merits; and
(ii) there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);
(b) an allegation of bias … made against an administrative officer… must be “distinctly made and clearly proved” (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and Gummow J);
[33] and see also Minister for Immigration v AMA16 (2017) 254 FCR 534 at [61]-[66]
Thus Ms Du has the onus of the allegation being “distinctly made and clearly proved”. Here, however, the Court is being asked to infer a reasonable apprehension of bias from the mere existence of previous decisions by which Ms Du has had visa applications declined. It is thus apparent that this ground also must fail.
Concluding observations
Although jurisdictional error has not been established in this case, it is troubling that the decision under review does not identify why the delegate held the expressed concerns about the genuineness of Ms Du’s visitor visa application. It is obvious from the court book that the Minister’s Department has serious concerns about Ms Du but I do not know what they are. It is obvious that those concerns have previously not been disclosed to Ms Du but I do not know whether they now have been. Ms Du has demonstrated a continuing determination to visit Australia through repeated applications. All have been refused. She appears to be a bona fide student in the United Kingdom, she appears to have plenty of financial resources and she is a well seasoned traveller. She does not appear to have ever overstayed any of the tourist or other visas she has obtained in respect of various countries. It is, in the circumstances, a mystery why the Minister’s Department has concerns about her. I have been unwilling to draw a conclusion of irrationality. On the contrary, I proceed on the basis there is a rational basis for this and earlier decisions made. If Ms Du wishes to make a further visa application, she would be well advised to deal with the Minister’s Department’s concerns in that application or, if she does not know what those concerns are, to request information so that she can deal with them. It seems to me that it is only by that process that the cycle of application and refusal could be brought to an end.
Conclusion
Ms Du has failed to establish that the decision of the delegate 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 thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 18 September 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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