Guo and Anor v Minister for Immigration and Anor
[2018] FCCA 1173
•28 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GUO & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1173 |
| Catchwords: PRACTICE AND PROCEDURE – Leave sought to amend application in order to rely upon correct version of regulation – leave granted. |
| Legislation: Migration Act 1958 (Cth), ss.101, 102, 103, 104, 105 107, 109, 140 Migration Amendment (2014 Measures No.2) Regulation 2014 (Cth), sch.3, item 4 Migration Regulations 1994 (Cth), reg.2.41 |
| Cases cited: Minister for Immigration & Citizenship v Khadgi (2010) 190 FCR 248; [2010] FCAFC 145 Salahuddin v Minister for Immigration & Border Protection (2013) 229 FCR 290; [2013] FCAFC 141 |
| First Applicant: | FENG GUO |
| Second Applicant: | YUCHEN GUO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1306 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 7 March 2018 |
| Date of Last Submission: | 7 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 28 May 2018 |
REPRESENTATION
| Counsel for the Applicants: | Mr N Poynder |
| Solicitors for the Applicants: | David Kam & Co Solicitors |
| Solicitors for the Respondents: | Ms D Watson, Australian Government Solicitor |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 29 March 2017.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 17 November 2016 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1306 of 2017
| FENG GUO |
First Applicant
| YUCHEN GUO |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first applicant (applicant) was the holder of a Subclass 100 (Spouse) visa. The second applicant is his son who came to Australia on the same visa. The applicant’s visa was cancelled by a delegate of the Minister for Immigration under s.109(1) of the Migration Act 1958 (Cth). The second applicant’s visa was cancelled as a consequence pursuant to the operation of s.140(1) of the Act.
Section 109(1) of the Act gives the Minister power to cancel a visa if the visa holder has failed to comply with a number of other provisions, namely ss.101, 102, 103, 104, 105 or 107(2) of the Act. Those provisions, in essence, require non-citizens to provide correct information in their visa information, passenger cards and not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in their circumstances.
There are three preconditions to the existence of the power to cancel under s.109(1): first, the Minister must have decided under s.108 “that there was non-compliance by the holder of a visa”; secondly, the Minister must have considered any response to the notice about non-compliance given in a way required by sub-s.107(1)(b); and thirdly, the Minister must have had regard to the prescribed circumstances.
Regulation 2.41 of the Migration Regulations 1994 (Cth) prescribes the circumstances required to be considered for the purposes of s.109(1) of the Act. At the relevant time, reg.2.41 prescribed the following circumstances:
…
(a)the correct information;
(b)the content of the genuine document (if any);
(c)whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d)the circumstances in which the non-compliance occurred;
(e)the present circumstances of the visa holder;
(f)the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g)any other instances of non-compliance by the visa holder known to the Minister;
(h)the time that has elapsed since the non-compliance;
(j)any breaches of the law since the non-compliance and the seriousness of those breaches;
(k)any contribution made by the holder to the community.
(Emphasis added)
In Minister for Immigration & Citizenship v Khadgi (2010) 190 FCR 248; [2010] FCAFC 145 the Full Court of the Federal Court explained, at 270 [57], that consideration of the circumstances prescribed in reg.2.41 was a jurisdictional prerequisite to the exercise of the Ministerial discretion to cancel a visa under s.109 of the Act.
The third prescribed circumstance in reg.2.41, prior to its amendment[1] provided:
…
(c)The likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;
[1] Migration Amendment (2014 Measures No.2) Regulation 2014 (Cth), sch.3, item 4 commencing on 12 December 2014.
…
On 29 March 2017, the Administrative Appeals Tribunal made a decision to affirm the delegate’s decision to cancel the applicant’s visa. The applicants now seek judicial review of that decision.
Initially, one of the grounds in the application relied upon the former version of reg.2.41(c) as set out at [6] above. However, at the hearing the applicant sought and was granted leave to amend his application in order to rely upon the correct version of the regulation.
The applicant’s grounds are essentially that the Tribunal failed to have regard to his evidence and that of his wife and, in addition, that it failed to properly address the consideration in reg.2.41(c). For the reasons that follow, the Tribunal did fail properly to apply reg.2.41(c) and, although it gave minimal weight to that factor, it nevertheless fell into jurisdictional error.
Factual background
The applicant is a citizen of China who first entered Australia on a Subclass 456 Business (Short Stay) visa. That visa was obtained by the applicant under the identity Sen Lin Guo with a date of birth given as 8 April 1965. Subsequently, the applicant unsuccessfully applied for a number of other visas using the same identity and also held bridging visas under that identity.
Eventually the applicant became unlawful before, on 7 April 2010, he was granted a Bridging E visa, again under the identity Sen Lin Guo. That visa enabled the applicant to return to China in April 2010.
On 14 April 2012 the applicant, while still in China, lodged an application for a Subclass 309/100 Partner visa sponsored by his spouse, Ms Thu. This application was lodged in the name Feng Guo whose date of birth was given as 7 March 1965. The second applicant, the applicant’s son, was included as a dependent child.
In the visa application forms the applicant answered the following questions as follows:
Q:Have you or any other person included in this application ever been refused an entry permit or visa to Australia?
A:No.
Q:Have you ever held or do you currently hold a Bridging visa E?
A:No.
Q:Have you or any dependent family members (migrating with you or not) previously been to Australia, held or currently hold a visa for travel to Australia?
A:No.
At the conclusion of the visa application the applicant declared that the information he supplied in the application was “complete, correct and up-to-date in every detail”.
On 12 October 2016 a facial image comparison was conducted for Feng Guo against Sen Lin Guo and it was determined that they were in fact the same person. In light of that, the applicant was, on 13 October 2016, sent a Notice of Intention to Consider Cancellation of Visa. This notice set out the three questions and answers set out above and also gave a reference to the final declaration in the visa application. This was a notice given under s.107 of the Act.
On 26 October 2016 the applicant’s representative emailed a response to the notice. Relevantly to the present case the response included the following:
a)the applicant was born Sen Lin Guo, but in 2011 he had changed his name and date of birth to Feng Guo. A copy of the applicant’s Chinese Resident ID card in the name of Feng Guo issued on 13 May 2011 was enclosed with the response;
b)it was submitted that the applicant’s date of birth had not been changed when his name changed, but rather the date of birth under the name Sen Lin Guo (8 April 1965) was a solar calendar date whereas the date under the name Feng Guo (7 March 1965) was the same date according to the lunar calendar. A copy of a Chinese lunisolar calendar showing the respective dates for lunar and solar years was enclosed;
c)it was admitted that the applicant had given the four incorrect answers in the Partner visa application and that the answers to the first three questions should have been “yes”;
d)the applicant said that he had met Ms Thu in 2005 and that they had been in a de facto relationship until they had married in April 2011;
e)Ms Thu was “suffering from several serious medical conditions before the applicant departed Australia”. A medical report was enclosed setting out that medical condition as at 15 October 2016 indicating that Ms Thu had been “diagnosed with an ovarian tumour in 2011, and suffered from diabetes, major depression, fibroids, hypertension, and left ventricular hypertrophy”.
f)it was submitted that the applicant “held a misconception that the assessment of his Partner visa application would be faster if there was no visa refusals” or Bridging visa E’s on his record and he thought that he “would be barred from re-entering Australia for three years due to him holding a BVE[2] before leaving”. He said that he had wanted to be able to return to Australia as soon as possible to look after his wife who subsequently had surgery to remove the tumour in early 2012;
g)it was submitted that the applicant did not intend to give false information in order to obtain a partner visa as his relationship is genuine. It was submitted that the decision to grant the partner visa was not based on his incorrect answers because having been refused an Australian visa before, or having held a Bridging visa E, or having been to Australia previously were not themselves the bases for refusing a partner visa as they were not relevant to any visa criteria;
h)it was submitted that the applicant had been in gainful employment for the past 5 years in Australia and that since 2 July 2015 he had been a director and shareholder of a restaurant business which employed a number of Australian workers.
[2] Bridging Visa E.
On 17 November 2016, a delegate of the Minister made the decision to cancel the visa held by the applicant. Both applicants applied to the Tribunal for review of that decision.
The applicants’ representative sent a submission to the Tribunal which contained the same information as the response to the s.107 Notice but also provided financial and employee records for the restaurant business as well as for a restaurant owned by Ms Thu.
In addition, the applicant provided a psychological report for Ms Thu dated 10 March 2017 which referred to her suffering from extremely severe depression, anxiety and stress. It noted a diagnosis at the age of 12 of Type 1 diabetes and indicated that her depression and anxiety had been severely exacerbated by her diabetes worsening and the impact of this on her general health, as well as severe stress caused by the applicant’s visa problems. An opinion was given that if the applicant were required to leave Australia due to his visa condition it would be a significant additional stress on Ms Thu who considered her husband as a protective factor to her mental health.
On 21 March 2017 the Tribunal conducted a hearing at which the applicants and Ms Thu gave evidence. The applicant relies upon the following aspects of the Tribunal hearing, the transcript of which was in evidence before the Court:
(a)The Tribunal took the applicant though his visa history and he agreed that he had not answered the questions on his Partner visa application correctly.
(b)The applicant said that he had given incorrect answers “Because I’ve been here for more than nine years in the past. So when I went back, um, my wife, she is health – sorry, her health is not good. We have a restaurant so I want to go back soon”. When asked about his wife’s health now, he said that “it’s not good now” and, when the Tribunal said that it didn’t have any medical evidence about the wife, the applicant referred the Tribunal to “the doctor tests and I’ve given to my representative”.
(c)In relation to the applicant’s change of name, the following exchange took place:
MEMBER:… Which is your correct name?
APP.:Since I was little, it’s for a long time, until 2010, my name was Sen Lin Guo. Um, only when I went out this time it became Feng Guo.
MEMBER:So “Only when I went out”?
INT.:What he said, “Only when I went” um, that’s what he said, “Only when I went back”.
MEMBER:So why when you went back did you change your name to Feng Guo?
APP.:Ok, I just want to – I change names because I also came earlier, I didn’t want to use the bad record in the past.
(d)The Tribunal noted the applicant’s claim that the incorrect answers that he had given were not relevant to the decision to grant him a Partner visa, then noted:
MEMBER:Did it not occur to you though that coming back under a different name was telling the Department something that was not correct?…That you had changed your name and that you had been to Australia before and that you had held bridging visas before and that you had been refused a protection visa before; you didn’t tell the Department any of that.
APP.:Yes.
MEMBER:Did you think about the fact that that was dishonest?
APP.:Yes, I know.
MEMBER:So you did think about that?
APP.:Yes, this is dishonest.
(e)The Tribunal then took the applicant through the prescribed circumstances in reg. 2.41, discussing the restaurants, the applicant’s contributions to the community, and the situation of his son.
(f)the Tribunal then asked the applicant “Is there anything else you want to tell me about your present circumstances that I should take into account?”, to which the applicant replied “So since 2008 my wife’s health has been really bad and she has diabetes, and she is relying on injections to survive. So her doses [sic] is 80, which is the highest dosage”.
(g)Shortly afterwards, the Tribunal called evidence from Ms Thu, who confirmed that her health hasn’t been good and that she has suffered from diabetes since her childhood, that she has other painful health conditions with swelling and high blood pressure, such that “every month when I have my periods I almost can’t work because the amount is, um, large. So before, the doctor recommended that, um, to remove my uterus, but I – I don’t want to have”. Ms Thu also said that she has depression because of her health problems, and that in early 2012 she was hospitalised and had a tumour in her ovary removed, and the doctor said that it was because of pressure and depression.
(h)The Tribunal asked Ms Thu whether there was anything else that it should take into account, and the following exchange took place:
WIFE:I would like to – I would like to say that if he can stay my life will be much, much, much, much better because he’s my other half, he’s my partner and yeah, so it’s – yeah, we’ve been through that much.
MEMBER:If he can’t stay would you consider going back to China with him?
WIFE:It’s very hard, I’ve been travelling – It’s hard, I’ve been travelling there many times and, um, things like drinking water is difficult because I got sick when I got there, um, so it’s just my health doesn’t allow me, so I’m thinking – um, so I understand we’re wrong, but I’m hoping that try our best for him to stay.
(Emphasis in original, citations omitted and without alteration)
Following the hearing the applicant’s agent sent further information and in particular, updated summaries of Ms Thu’s medical conditions and recent results of her clinical blood tests.
On 29 March 2017, the Tribunal made a decision to affirm the decision of the delegate.
Tribunal’s decision
After some introductory paragraphs the Tribunal’s decision was divided into 2 parts: the first part dealt with the question of whether there was non-compliance as described in the s.107 Notice; and the second part addressed the question of whether the visa should be cancelled. The Tribunal dealt with the first of these questions at [11] to [25] and concluded that the applicant did give information that he knew to be incorrect in response to questions on the partner visa application form. Accordingly, it was satisfied that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 Notice.
The Tribunal then turned to the next question noting, at [26], that cancellation under s.109 was discretionary and that there were no mandatory cancellation circumstances prescribed for the purposes of that provision.
Next, at [27], the Tribunal set out the prescribed circumstances in reg.2.41 and noted, at [28], that those factors, while obligatory, did not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case. At [29] the Tribunal said the following:
The applicant provided incorrect information on the application form for the partner visas. He did not declare his correct name of Sen Lin Guo in his cmbined [sic] UF-309/BC-100 Partner (Migrant) visa application.
It is not entirely clear what the Tribunal makes of this at this point in its reasons. What is clear is that the name used by the applicant in his partner visa application was not in fact incorrect. What was incorrect was that the applicant, regardless of what name he ascribed to himself, had previously applied for, and held, different types of visas and had been to Australia. The notice of intention to cancel did not include the applicant’s name as the incorrect information. In any event, the Tribunal continued at [30]:
In his submission to the Department and in his evidence at the hearing he admitted to applying for the partner visa under the name of Feng Guo instead of Sen Lin Guo and incorrectly answering the questions as set out above.
This statement appears to be more accurate; however, the Tribunal returned to the issue of the correctness of the name at [31] where it stated:
The Tribunal considers that the applicant made the decision to apply for the partner visa under the incorrect name and provide incorrect information on the application forms. It considers the visa applicant has a responsibility to ensure that the information provided to the Department and on the application forms is correct.
After noting that there were no issues about the content of a genuine document the Tribunal moved on to consider the consideration required by reg.2.41(c):
[33]On the application form for the partner visa the applicant submitted incorrect information as to his identity. In his submission to the Department in response to the Notice to Consider Cancellation the applicant stated he the decision to grant a partner visa was not based on incorrect answers because having been refused an Australian visa before, having held a BVE[3], and having been to Australia previously and not themselves basis for refusing a partner visa. The Tribunal considers that although the applicant may have met the criteria for the grant of the partner visa he did in fact provide incorrect information. This may have led to a more rapid assessment of the visa application. The Tribunal places minimal weight on this in the applicant’s favour.
(Without alteration and emphasis added)
[3] Bridging Visa E.
The Tribunal then went on to consider the applicant’s knowledge of the incorrectness of the information, the present circumstances of the applicant, his businesses and that of Ms Thu before turning at [39] to the medical condition of Ms Thu. It stated:
[39]The applicant has also submitted a copy of the report by a psychologist. The Tribunal considered the psychologist report. It notes that there is no indication in the report of how long the psychologist has been seeing the sponsor or how regularly she treats her. The Tribunal notes that much of the psychologist report is based on self reporting by the sponsor. There is no mention in the report of any support the sponsor may receive from her mother who is now in Australia and who, according to the applicant, is now employed in the restaurant. There is no evidence before the Tribunal that the sponsor requires medication for her depression, anxiety and stress or that she has ever been hospitalised for her mental health problems. The Tribunal accordingly places only limited weight on the psychologist report.
The Tribunal then went on to consider the situation of the second applicant, the claim that the applicant had been truthful to the Department since receiving the Notice of Intention to Consider Cancellation, the lack of any other instances of non-compliance, the time spent in Australia and the fact that there were no other breaches of the law by the applicant since his non-compliance with s.101, as well as the fact that there were no relevant international obligations. The Tribunal concluded at [46]:
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
For those reasons the Tribunal affirmed the decision of the delegate to cancel the applicant’s subclass 100 (spouse) visa.
Consideration
While there are 3 grounds in the application it is convenient to deal first with the second ground. That ground is that the “Tribunal misconstrued its task when assessing the circumstance prescribed under regulation 2.41(c) of the Migration Regulations 1994” by considering whether the provision of the incorrect information may have “led to a more rapid assessment of the visa application, when it should have asked itself whether the decision to grant the visa was based, wholly or partially, on correct information”.
It was not in issue in this matter that the Tribunal was required to consider reg.2.41(c) as a precondition to its exercise of the power to cancel the applicant’s visa. It purported to do so at [33] of its decision which is set out at [27] above. The question is whether the Tribunal’s findings at [33] reveal a proper understanding and application of the regulation.
As I have noted, prior to its amendment in 2014, reg.2.41(c) required consideration of the “likely effect on a decision to grant a visa” of the correct information. That required a subjective assessment by the Tribunal (or delegate before it) of the impact of the correct information without regard to what had actually occurred in the granting of the visa. The amendment to the provision was made in order to change that type of assessment. In the Explanatory Statement which was circulated together with the Regulation pursuant to which the amendment was made, the Minister explained the purpose and effect of the new regulation:
…
New paragraph 2.41(c) provides that, for the purposes of paragraph 109(1)(c) of the Migration Act, one of the prescribed circumstances to which the Minister must have regard is ‘whether the decision to grant a visa or immigration clear the visa holder was based, wholly or in part, on the incorrect information or bogus document’.
The effect of new paragraph 2.41(c) is to make clear that when considering whether to cancel a visa under section 109 of the Migration Act, a circumstance to which the Minister must have regard is to be an assessment of whether the incorrect information or bogus document was the basis, or part of the basis, for the decision to grant the visa or immigration clear the person, rather than, as currently, a subjective assessment of the “likely effect” of the incorrect information or bogus document on the decision to grant the visa or immigration clear the person.
(Emphasis added)
What is required by the current version of reg.2.41(c) is consideration of the actual decision made to grant the visa or immigration clear the person whose visa has been cancelled rather than to engage in speculation of what might have happened if there were correct information.
The Tribunal did not consider whether the decision to grant the applicant his spouse visa was based wholly or partly on the incorrect information. Rather, at [33] it speculated that the incorrect information “may have led to a more rapid assessment of the visa application”. That speculation was inconsistent with what was required by reg.2.41(c) and, for that reason, the Tribunal did not consider a mandatory consideration and its power to cancel did not arise. Another way of saying the same thing is that the Tribunal fell into jurisdictional error by failing properly to apply reg.2.41(c) of the Regulations.
In light of that conclusion, it is strictly unnecessary to consider the first and third grounds. However, I will do so for the sake of completeness.
The first ground of the application is, in essence that the Tribunal failed to address the applicant’s evidence that he had lawfully changed his name and that the birthdate provided in his application was correct.
The applicant relies upon the findings at [29], [30] and [31] of the Tribunal’s reasons that the applicant did not declare his correct name of Sen Lin Guo, that he applied for a partner visa under the name of Feng Guo instead of Sen Lin Guo and he made the application under the incorrect name.
The Minister argued that the applicant’s submission ignores the fact that his own evidence at the hearing before the Tribunal was that the reason he changed his name was to use a different name when applying for a visa so as to avoid his “bad record”. It was submitted that the Tribunal was entitled, in light of that evidence, to describe the actions of the applicant in [29], [30] and [31] when describing the “correct information”. The Minister argued that the Tribunal was clearly aware of the claim that the applicant had lawfully changed his name and also of the fact that the applicant did this to hide his earlier immigration history.
While it is true that the reasons for decision of the decision maker such as the Tribunal ought not to be scrutinised with an eye keenly focused on the perception of error, the Court must nevertheless scrutinise the reasons of an administrative decision maker in order to properly understand them so as to determine whether that decision is affected by jurisdictional error: see Salahuddin v Minister for Immigration & Border Protection (2013) 229 FCR 290 at [20]; [2013] FCAFC 141.
While I accept that the Tribunal was at least cognisant of the applicant’s change of name (see [13]) I am satisfied that it did not properly consider that evidence but rather, proceeded on the basis that the applicant had used a false name for the purpose of his application. For instance, at [29], the Tribunal when addressing what the correct information was in response to the requirement of reg.2.41(a), noted that the applicant did not declare his correct name of Sen Lin Guo in his partner visa application. Given the directness of that finding, I am satisfied that the Tribunal, at this point in its reasons, did not in fact have in mind the scheme put in place by the applicant when he went to change his name in China, but rather, the fact that only it considered that his original name was the correct name.
Although it is difficult to discern what impact the Tribunal’s failure to deal with the applicant’s evidence in this respect had upon the Tribunal’s decision, I am satisfied that it was material to that decision simply because the Tribunal repeated it on a number of occasions in connection with its consideration of the criteria prescribed by reg.2.41. It cannot be said that the evidence given by the applicant could have had no impact on the Tribunal’s decision. For that reason, I consider that the Tribunal’s failure to consider the applicant’s evidence concerning his change of name and the reason for the difference between the dates of birth given by him in his various visa applications amounted to jurisdictional error.
The third ground in the application is that the Tribunal failed to consider the deleterious effect that the cancellation of the applicant’s visa would have on his spouse.
The evidence concerning the serious health condition of the applicant’s spouse is outlined above. That evidence went not only to her mental state and problems in Australia, but also her reliance upon the applicant, and her inability because of her health problems to relocate with the applicant to China.
The Tribunal gave very limited consideration to the situation of the applicant’s spouse. At [22] as noted above, the Tribunal purported to summarise the evidence given by the spouse at the hearing but did not refer to any of the evidence given by her concerning her health or the difficulty that she would face travelling to China: see [20] above. In its findings, the Tribunal appears to have limited itself to considering what weight should be given to the psychologist’s report and did not assess the spouse’s evidence at all.
The Minister submitted that the applicant raised no specific issues for consideration by the Tribunal as to the effect that the cancellation of his visa would have on his wife. However, that submission goes nowhere in light of the clear evidence before the Tribunal from the spouse. The Tribunal correctly recognised at [39] that the impact upon the spouse of any cancellation decision was a matter that it should take into account however, it foreshortened its enquiry into that issue by failing to deal with the evidence of the applicant’s spouse itself.
The failure by the Tribunal to consider the wife’s evidence could be classified either as a denial of procedural fairness or as a constructive failure to review. Either way, it amounted to jurisdictional error and justifies the orders sought by the applicant.
Conclusion
The Tribunal’s decision was affected by jurisdictional error and there ought to be a grant of constitutional relief and in addition a writ of certiorari will issue.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 28 May 2018
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