HU v Minister for Immigration

[2016] FCCA 2183

FEDERAL CIRCUIT COURT OF AUSTRALIA

HU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2183

Catchwords:
MIGRATION – Visa – business visa – whether Tribunal failed to comply with s.359A – whether Tribunal failed to consider relevant evidence – no error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 359AA, 360 & 424AA

Migration Regulations 1994 (Cth), cl.457.224 of Schedule 2, cl.4020 of Schedule 4

Cases cited:

SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415

MZYFH v Minister for Immigration & Citizenship & Anor (2010) 115 ALD 409
Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241

Applicant: YI-CHUN HU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 28 of 2016

Judgment of: Judge Heffernan

Hearing date: 8 August 2016

Date of Last Submission: 8 August 2016

Delivered at: Adelaide

Delivered on: 7 September 2016

REPRESENTATION

The Applicant: In person with assistance of interpreter

Solicitors for the Respondents: Ms N Milutinovic for Sparke Helmore Lawyers

ORDERS

1. The application dated 1 February 2016 is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 28 of 2016

YI-CHUN HU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review in respect of a decision of the Migration Review Tribunal (‘the Tribunal’), as it then was, dated 11 June 2016.  That decision affirmed an earlier decision of a delegate of the Minister which refused an application by the applicant for a Temporary Business Entry (Class UC) visa.

2. The applicant was unrepresented in these proceedings and appeared with the assistance of an interpreter.  His application raises two grounds as follows:

   “1.The Tribunal failed in compliance with mandatory procedures which are set out in s.424AA to advise the applicant that he may seek additional time to comment to respond to the question provided by the Tribunal.

   2.The Tribunal failed to properly consider the evidence in respect of his court order in Taiwan.”

3. The applicant indicated that he relied on his affidavit of 1 February 2016, the materials in the Court Book filed by the first respondent, and the transcript of the Tribunal proceedings annexed to the Affidavit of Natalia Milutinovic dated 8 April 2016.  The first respondent relies on the Court Book, the Affidavit of Ms Natalia Milutinovic and the transcript of the Tribunal proceedings annexed to that Affidavit.  The Affidavit of the applicant added nothing to his grounds and simply annexed a copy of the decision of the Tribunal.

4. On 11 March 2016, orders were made by the Registrar giving leave to the applicant to file any amended application by 20 May 2016.  The applicant was also given leave to file and serve such further material, including a transcript of the proceedings, that he may rely upon by 27 May 2016.  The applicant was ordered to file and serve any outline of submissions 14 days prior to the hearing of this matter.  The applicant did not file an amended application, has not filed or served any further material on which he seeks to rely, and did not file an outline of submissions.

5. The factual and procedural background to this application was helpfully summarised in the written submissions of the first respondent.  I do not understand those matters to be disputed by the applicant and I have paraphrased them below.

6. On 13 October 2014, the applicant applied to the Department for Immigration and Border Protection (‘the Department’) for the visa.[1] 

   [1]     Court Book (‘CB’) pp 1 – 26.

7. The Department wrote to the applicant on 31 October 2014 advising him that it conducted checks to confirm the information that was provided in the application.  It further advised that it had received unfavourable information which did not support the application.[2]  The details of the adverse information were set out in that letter.  He was invited to comment on the fact that an identity verification investigation showed that he had previously manipulated his biodata information in order to obtain a second passport and apply for a second Subclass 417 visa.  The applicant was also advised that it was alleged that he had provided false and misleading information to the Department by indicating “yes” to the “no previous entry” question.[3]

   [2]     CB p 31.

   [3]     CB p 32.

8. A migration agent representing the applicant provided a response to the Department on 25 November 2014.[4]

   [4]     CB pp 35-43.

9. The applicant’s visa application was refused by a delegate of the Minister on the basis that he did not satisfy Public Interest Criterion (‘PIC’) 4020 of Schedule 4 to the Migration Regulations 1994 (Cth) (‘the Regulations’). This was on 2 July 2015. The delegate found both that the applicant had manipulated his biodata to obtain the second passport, and that he had provided false and misleading information in his application when he had declared that he had not previously entered the country. The delegate considered whether or not the provisions in PIC 4020(4) could be waived, but concluded that the applicant had not made any claims in relation to any compelling or compassionate circumstances affecting the interests of Australia, or compelling grounds that affect the interests of an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen, sufficient to justify the granting of the visa. For this reason, the delegate was not satisfied that the applicant met PIC 4020 and accordingly cl.457.224 was not met and the visa application was refused.[5]

   [5]     CB pp 45-52.

10. The applicant’s migration agent applied to the Tribunal for a merits review on behalf of the applicant on 13 July 2015.

11. The applicant was invited to attend at the Tribunal to give evidence and present arguments relating to issues arising in his case.  The invitation was dated 10 December 2015, and the hearing was set for 11 January 2016.[6]

    [6]     CB p 61.

12. Prior to the Tribunal hearing, the applicant’s migration agent provided the Tribunal with a number of documents in response to the delegate’s finding that the applicant did not meet PIC 4020.[7]  One of the contentions in the documents was that the applicant had made his application for a further Subclass 417 visa in order to make the repayment of a debt which was actually owed by his friend.  The documents asserted that the applicant “had no other choice but to change his name”.[8]

    [7]     CB pp 66-79.

    [8]     CB p 66.

13. The applicant attended at the Tribunal hearing on 11 January 2016.  I note that he attended without his migration agent, but with the assistance of an interpreter.  The Tribunal member asked the applicant why he changed his name prior to making the application for the visa, and whether he agreed that he had provided false and misleading information to the Department with respect to his visa application.  The applicant agreed that he provided information that was false and misleading.[9]  The Tribunal member asked the applicant about the debt in Taiwan and was, in effect, advised by the applicant that he had responsibility to pay for a debt which was actually the debt of a friend and that accordingly he had applied for another visa so that he could return to Australia, “because I won’t take this responsibility to pay this debt because that person didn’t pay it.  So I changed my name then came back to Australia to have another … another visa”.[10]

    [9]     Tribunal transcript p 4, line 18.

    [10]    Tribunal transcript p 3, lines 19-23.

14. The Tribunal member explained to the applicant that he did not meet the criteria for the grant of the visa and that it was a question of whether or not the requirements could be waived.[11]  The Tribunal explained to the applicant that the circumstances in which the criteria might be waived.[12]  The Tribunal asked the applicant whether there were compelling reasons to waive compliance with the criterion.  In his answers to the Tribunal, the applicant did not identify any compassionate or compelling circumstances that affected the interests of an Australian citizen, Australian family resident or eligible New Zealand citizen.  He focused his answers on the fact that he was an excellent meat work processor, assisted his company to help train other workers, and that his labour was important to a big meat exporter.[13]  In his final comments to the Tribunal, the applicant indicated that the reason he changed his name, is because his salary in Taiwan was not high in comparison to Australia, and that working here provided him with the best opportunity to clear his debts.  As the applicant said, “I took a risk to get this opportunity to right my wrong and to clear my debt”.[14]  On the same day as the hearing, the Tribunal gave oral reasons affirming the decision under review to refuse the application for the visa.

    [11]    Tribunal transcript p 4, line 22.

    [12]    Tribunal transcript p 4, line 22 – p 5, line 4.

    [13]    Tribunal transcript pp 4-5.

    [14]    Tribunal transcript p 5, lines 25-26.

15. I will now turn to the decision of the Tribunal.[15]

    [15]    CB pp 100-103.

16. The Tribunal commenced by noting the findings of the delegate and her reasons.[16] It noted that the criterion for the grant of a Temporary Business Entry (Class UC) visa are set out in Part 457 of Schedule 2 to the Regulations, and identified the relevant issue in the case as being whether the applicant met PIC 4020.[17]

    [16]    CB p 101.

    [17]    CB p 101, lines 44-47.

17. The Tribunal did not repeat verbatim the wording of PIC 4020 but summarised the requirements relevant to the application before it:

    “… Broadly speaking this requires that there is no evidence that you have given or caused to be given to the minister, an officer, the tribunal, a relevant assessing authority or medical officer of the Commonwealth a bogus document or information that is false or misleading in a material particular. …

    A bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made.  That requirement comes from clause 4020(1).”[18]

    [18]    CB pp 101-102.

18. The Tribunal went on to note that the requirement in cl.4020(1) can be waived in circumstances identified by cl.4020(4).  The Tribunal correctly noted that it was necessary for it to reach a conclusion that the applicant was aware that the information was purposely untrue, but that there must be an element of fraud or deception by some person.

19. The Tribunal found that in declaring in his visa application that he had not previously entered Australia, the applicant had provided false and misleading information relevant to the criteria for the grant of a 417 visa and for that reason, it did not meet PIC 4020(1).[19]

    [19]    CB p 102, lines 29-33.

20. The Tribunal then moved to a consideration as to whether or not that requirement should be waived.  It referred again to the terms of cl.4020(4).  It correctly summarised the terms of cl.4020(4).[20]

    [20]    CB p 102, lines 35-40.

21. The Tribunal summarised the applicant’s evidence to the effect that he was a good worker who was involved in the training of others and noted a reference that had been provided to the Department by his migration agent.[21]  It noted the concern raised by Thomas Foods International about the extra cost and the effect on its business should the applicant not be granted a visa.

    [21]    CB p 102, lines 41-43.

22. Relevant to one of the grounds raised by the applicant in this case, the Tribunal made the following finding:

    “… You have referred to a debt to be paid in Taiwan, however that is not relevant to the interests of Australia or the interests of an Australian citizen.”[22]

    [22]    CB p 103, lines 2–3.

23. The Tribunal also found that the applicant’s claim that he could receive better wages in Australia, was not relevant to the interests of Australia or the interests of an Australian citizen, permanent resident or eligible New Zealand citizen.  The Tribunal was not satisfied that the value of the applicant’s work to his employer, or the cost that might be associated with him no longer being able to work there, were sufficient grounds on which to waive the PIC 4020(1) such as to justify the grant of a visa.

24. For these reasons, the Tribunal found that the applicant did not meet PIC 4020 and therefore did not meet cl.457.224 of Schedule 2 of the Regulations, and it affirmed the decision of the delegate.

25. The applicant made brief oral submissions before me. With respect to ground one, the applicant repeated the terms of this ground of application. He said that he should have been given additional time to comment on the question of whether or not he met the public interest criterion. He acknowledged that he did not seek an adjournment in order to do this. He submitted that he had provided information to the Department of Immigration about people who were selling visas in China and submitted that this should have been taken into consideration. However, he conceded that he did not tell the Tribunal anything about this. I note that neither the materials provided to the Tribunal by the applicant’s migration agent, nor the transcript of the evidence at the hearing, make any reference to the applicant having provided such information to the Department. The applicant did not make any submissions specifically relating to the terms of s.424AA of the Migration Act 1958 (Cth) (‘the Act’), which is referred to in ground one of his application.

26. With respect to ground two of his application, the applicant repeated the circumstances of him having incurred a debt on account of a friend and reasons for which he changed his name.  He submitted that it was suggested to him by others that he change his name so that he could continue to work for his employer.  In addressing the Court on ground two, the applicant did not specifically make any submission with respect to the implications of the alleged failure of the Tribunal to consider the Court order in Taiwan.

27. The applicant concluded his submissions by asserting that if the Tribunal had been told about his effort to provide information to the Department of Immigration, then that may have had an impact on his assessment as to whether or not PIC 4020 should have been waived.

28. The first respondent noted that ground one of the application should in the circumstances properly have referred to s.359AA and not s.425AA of the Act as pleaded. It submitted that no issue before the Tribunal would have given rise to an obligation to provide the applicant with more time. This was because all of the relevant information was either set out in the Decision Record of the delegate or was provided by the applicant himself and therefore the exception in s.359A(4)(b) applied.

29. It submitted that there was nothing wrong or exceptional in the way PIC 4020 was considered or applied by the Tribunal that gave rise to jurisdictional error.  With respect to the new information the applicant identified from the bar table, the first respondent submitted that the Tribunal could only make a decision on the evidence before it.  In effect, the first respondent submitted that the Tribunal could hardly be said to have fallen into jurisdictional error by failing to consider matters that had not been raised with it.  With respect to ground two, the first respondent submitted that the Tribunal did in fact consider the evidence of the debt in Taiwan.  The fact that it did not make specific reference to any court order in Taiwan, was of little moment, it submitted, because the topic had clearly been considered and was referred to in its reasons.  As to the question of the significance of that evidence, the first respondent submitted in effect that questions of relevance and the weight to be attributed to that aspect were generally speaking, matters for the Tribunal.

Ground one

1. Allowing for the fact that the applicant is unrepresented, I have treated this ground as alleging a failure on the part of the Tribunal to comply with s.359AA of the Act, which is the relevant equivalent to s.424AA, which of course deals with Part VII reviewable decisions relating to claimants for protection visas.

2. Section 359AA is as follows:

   “359AA Information and invitation given orally by Tribunal while applicant appearing

   (1)If an applicant is appearing before the Tribunal because of an invitation under section 360:

   (a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)if the Tribunal does so—the Tribunal must:

   (i)   ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii)  orally invite the applicant to comment on or respond to the information; and

   (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

   (2)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).”

3. However, s.359AA is only engaged in circumstances where the Tribunal has elected to give particulars of information to an applicant orally pursuant to s.359A(3). It is the failure to comply with s.359A that would be the relevant jurisdictional error.[23]

   [23]    SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415; MZYFH v Minister for Immigration & Citizenship & Anor (2010) 115 ALD 409 at [31] which deals with the equivalent obligations under ss.424AA and 424A.

4. However, in this case, no consideration under s.359AA arose. As the first respondent submitted, the information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that was under review had already been clearly stated in the decision of the delegate. The applicant provided a copy of this decision to the Tribunal when he applied for a merits review.[24] For this reason, the exception in s.359A(4)(b) applied.[25]

   [24]    CB p 54.

   [25]    Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241; SZMCD op cite at [2] & [80].

5. I am not satisfied the applicant has demonstrated any error on the part of the Tribunal by reason of having failed to comply with s.359A or any jurisdictional error with respect to this ground and I dismiss it.

Ground two

1. It is apparent from the transcript of proceedings, and the Decision Record of the Tribunal, that it considered the material provided to it by the applicant’s representative.  The circumstances surrounding the debt incurred by the applicant were clearly detailed in those documents and explained to the Tribunal by the applicant during the course of his evidence. 

2. The Tribunal found that the circumstances relating to the applicant’s debt in Taiwan was simply not relevant when considering whether or not to waive PIC 4020.  There can be no criticism of this finding.  It was not unreasonable or irrational for the Tribunal to conclude that this information was not relevant to the interests of Australia, or the interests of an Australian citizen, permanent resident, or eligible New Zealand citizen, and that there was no relevant consideration which would justify the grant of the visa which would have enabled the criterion to be waived.

1. The applicant was properly afforded his rights under Part V, Division 5 of the Act. The Tribunal complied with its obligation under s.360 of the Act by inviting him to attend at a hearing and to give evidence and present argument. I am not satisfied that the Tribunal failed to have regard to the evidence of the court order in Taiwan or any of the evidence.

2. I dismiss ground two.

3. Accordingly, I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 7 September 2016