Huang Xiao Hong v Minister for Immigration & Ethnic Affairs

[1997] FCA 271

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)     No. NG 580 of 1996
)
GENERAL DIVISION	)

BETWEEN:		HUANG XIAO HONG Applicant
AND:		MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent
CORAM:	EMMETT J.
PLACE:	SYDNEY
DATED:	26 February 1997

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:  Mr Levingston, solicitor for the applicant, seeks to read his affidavit of 12 August 1996 to which is annexed a copy of the judgment of Hill J given in this court in proceedings number NG 739 of 1995. In that matter, Hill J dismissed the application which was before him. Objection is taken to the reading of the affidavit on the ground that that material is irrelevant.

Mr Levingston has indicated that this application is brought under section 476(1)(e) of the Migration Act. Accordingly, the application is limited to the ground of being an error of law involving either an incorrect interpretation of the applicable law, which Mr Levingston says is section 109 of the Migration Act, or an error involving an incorrect application of that law to the facts as found by the Tribunal.

The reasons given by Hill J for dismissing an application in earlier proceedings cannot of themselves be of any assistance, as a matter of evidence, in determining whether there was an error involving an incorrect interpretation of section 109 of the Migration Act. Nor it seems to me can they bear on the question of whether or not there has been an incorrect application of that law to the facts as found by the Tribunal.

No doubt evidence will be led as to the facts which were found by the Tribunal as to which an incorrect application of the law is said to have been applied. Be that as it may, the reasons of Hill J cannot bear on the application before me and therefore I reject the whole of the affidavit.

HIS HONOUR: This is an application brought by the applicant under section 476 of the Migration Act 1958. Under that provision, application may be made for review by this court of a judicially reviewable decision as that term is defined in section 475. The decision sought to be reviewed is a decision made by the Immigration Review Tribunal (“the Tribunal”) on 20 June 1996.

It is common ground that that decision was a judicially reviewable decision within the meaning of section 475. The decision under review was a decision affirming a decision of the Minister under section 109 of the Migration Act that the visa of the applicant be cancelled.

Sections 101 to 105 provide for obligations on the part of non-citizens who make applications for visas. Section 107 provides that if the Minister considers that the holder of the visa did not comply with those provisions, then he may give notice giving particulars of the possible non-compliance and setting out certain entitlements on the part of the holder of the visa to respond to the allegations. Under section 108, the Minister must consider any response given by a visa holder and decide whether there was non-compliance.

Section 109(1) then provides that the Minister may, after deciding under section 108 that there was non-compliance, and considering any response about the non-compliance given on behalf of the visa holder, and having regard to any prescribed circumstances, cancel the visa.

Regulation 2.41 prescribes the circumstances for the purpose of section 109(1)(c). For present purposes the only paragraph relied upon, as I understand the submissions on behalf of the applicant, is regulation 2.41(e) which provides that one of the circumstances to which the Minister must have regard is "the present circumstances of the visa holder".

In the application for an order of review, the grounds are formulated in five paragraphs expressed to be particulars of ground 476(1)(e). The applicant’s solicitor, made it clear that it was only paragraph (e) relied upon and therefore was constrained to establish an error of law being either an error involving an incorrect interpretation of the applicable law or an error involving an incorrect application of the law to the facts as found by the Tribunal.

Mr Levingston made it apparent that the applicable law for the purposes of his contention comprised section 109 and regulation 2.41. Thus, it was necessary for him to establish an error of law involving an incorrect interpretation of those provisions or an error of law involving an incorrect application of those provisions to the facts as found by the Tribunal. In the course of argument it became apparent that it was really the second limb of paragraph (e) that was relied upon and, indeed, the application does not refer to the first limb of section 476(1)(e).

The grounds that are specifically set out raise four different matters. The first is said to be an error on the part of the Tribunal in inferring that the applicant "had improperly acquired the assets referred to by the Applicant’s advisers in adverting to the matters arising under regulation 2.41(e)". In particular, reliance was placed upon a statement in the reasons of the Tribunal to the effect that the applicant is 30 years old, has been in Australia for eight years, is single, and with substantial assets. The Tribunal observed that "there is no satisfactory explanation as to how she accumulated her assets".

Mr Levingston indicated that that comment involved an inference, or perhaps an innuendo, that there was some impropriety in relation to the acquisition of assets. I do not read the reasons in that way. The comment was made by the Tribunal in response to a submission made on behalf of the applicant that she had substantial assets in Australia and that there would be a hardship if she was required to depart from Australia.

The observation was made in response to the contention of hardship in the context of a finding or observation by the Tribunal that there was no evidence before the Tribunal concerning either the taxation records of the applicant or the Family Court records regarding the dissolution of her marriage and any property settlement. In other words, I read the comment as simply meaning that the Tribunal could not find that there was hardship without having some information as to the circumstances in which the property and assets were acquired.

The second specific ground relied upon by Mr Levingston was expressed in the application as being a failure to take into account the fact of the minister's delay in determining the applicant's status and its subsequent impact on her capacity to apply for a class 815 permanent visa. Reference was made to the fact that the materials before the Tribunal indicated that an allegation had been received by the department on 19 November 1992 concerning an allegation that the relationship between the applicant and her husband was contrived. The file indicates that, while on 23 December 1992 an investigation was initiated, nothing was in fact done until 1 July 1994 when the applicant was interviewed by a departmental officer.

It was noted that a class 815 visa had to be applied for before 1 July 1994.  Although it may have been hinted at, there was no submission of impropriety or bad faith on the part of the department, putting aside the question of whether that would have been a permissible ground in any event.

The submission boiled down to a contention that in considering the circumstances of the applicant under regulation 2.41(e) it is necessary to have regard to questions of hardship. The submission really came to no more than one that the Tribunal had not given adequate weight to the fact that the opportunity to apply for a class 815 visa may have been lost.

There is no doubt that that possibility was adverted to in the submissions made to the Tribunal which were set out in the reasons for decision. Reference is made to the fact that the applicant was a class of person who was eligible for a concession which expired in 1994.

Accordingly, it seems to me that there are two bases upon which this ground must fail. The first is that the Tribunal does appear to have had regard to that fact: it may not have placed much weight on the fact but it did have regard to it because of the material that was referred to by the Tribunal. More importantly, however, it appears to me that the contention is one which is precluded by section 476.

The ground contained in paragraph (e) is constrained enough by reason of the language used. In any event, it seems to me that the way in which the case was formulated on behalf of the applicant is precluded by the express provisions of section 476(3)(e). Section 476(1)(d) provides for a ground that the decision was an improper exercise of the power conferred by the Act. However, section 476(3)(e) provides expressly that the reference to an improper exercise of a power is to be construed as not including a reference to failing to take a relevant consideration into account in the exercise of the power.

The express reference to those matters in relation to improper exercise of a power indicates, in my view, that the ground of the incorrect application of the law to the facts as found by a decision maker cannot include an alleged improper exercise of a discretion and certainly, an alleged improper exercise of the discretion by reason of failure to take into account relevant considerations.

Accordingly, in so far as the ground relied upon was a failure to have regard to the hardship occasioned to the applicant by reason of the investigation not proceeding until after she had lost the opportunity of applying for a class 815 visa, the application must fail.

The third specific ground relied upon is said to be a failure to take into account the circumstances surrounding the applicant's original entry into Australia, specifically her claim to being persecuted in the People's Republic of China. A fortiori, that ground appears to me to fall with the ground to which I have just referred. In other words, it is expressed to be and can only be a complaint of a failure to take into account a relevant consideration, a ground which is expressly precluded.

The final ground is expressed as a failure to take into account the fact of the applicant's eight years of lawful residence in Australia in determining her present circumstances. There are two objections to that ground. First, it was considered by the Tribunal. As I have said above, the Tribunal observed in taking into account the present circumstances of the applicant, that she was 30 years old, that she had been in Australia for eight years, that she was single and had substantial assets. In any event, it appears to me that this ground would be precluded by the operation of section 476(3)(e).

In those circumstances, it appears to me that the applicant has not been able to avert to an error of law being an error involving an incorrect application of section 109 or regular 2.41 to the facts as found by the Tribunal. Accordingly, it seems to me that the application for an order for review must be dismissed. On that basis, I have to order the applicant to pay the respondent's costs.

I certify that this and the preceding six pages are a true copy of the Reasons for Judgment of his Honour Justice Emmett.

Associate:

Dated: 26 February 1997

Heard:            26 February 1997

Place:              Sydney

Decision:        26 February 1997

Appearances:  

Counsel for the Applicant:                -

Solicitor for the Applicant:     Corby Levingston

Counsel for the Respondent:  R. Beech-Jones

Solicitor for the Respondent: Australian Government Solicitor.