Li v Minister for Immigration and Citizenship

[2007] FCA 266

FEDERAL COURT OF AUSTRALIA

Li v Minister for Immigration & Citizenship [2007] FCA 266

MIGRATION –  tourist visa – short stay – cancellation – where no interpreter present during part of interview – where inappropriate interpreter provided for part of interview – review application to Federal Magistrates Court – dismissed – appeal – whether jurisdictional error – whether denial of procedural fairness – where refusal to admit evidence – no practical injustice – appeal dismissed

Migration Act 1958 (Cth) s 116(1)(g), s 119
Migration Regulations 1994 (Cth) reg 2.43(1)

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 applied

LI LI v MINISTER FOR IMMIGRATION AND CITIZENSHIP

VID 48 OF 2007

MARSHALL J
2 MARCH 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 48 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	LI LI Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	2 MARCH 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The respondent’s name be changed to ‘Minister for Immigration and Citizenship’.

2. The appeal is dismissed.

3. The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 48 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	LI LI Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	MARSHALL J
DATE:	2 MARCH 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Ms Li is a citizen of the Peoples’ Republic of China, who is ordinarily resident in Cambodia. On 17 November 2006, Ms Li arrived at Melbourne airport as the holder of a subclass 676 (Tourist (Short Stay)) visa.  Shortly after her arrival, an officer of the respondent Minister’s Department interviewed her.  As a result of that interview, the officer cancelled Ms Li’s visa.  Ms Li issued a proceeding in the Federal Magistrates Court, claiming that the officer’s decision was affected by jurisdictional error, including a denial of natural justice.

2. Federal Magistrate Burchardt dismissed Ms Li’s application.  She now appeals to this Court.  Two issues arise on the appeal:

   ·whether the officer denied Ms Li procedural fairness in conducting the interview at times without an interpreter; and

   ·whether the Federal Magistrate denied Ms Li procedural fairness by refusing to admit evidence concerning the conduct of the interview.

THE INTERVIEW

1. Ms Li arrived at the airport at about 9.30 am.  Her interview with the officer appears to have commenced at about 10.45 am.  The interview proceeded without an interpreter, despite Ms Li not speaking English fluently.  As a result of discussions during which an interpreter was not present, the officer formed the view that Ms Li had told him that she had come to Australia to talk with her customers about a shipment of clothing which she had arranged to be sent to Australia.  While this early part of the interview with Ms Li was not recorded, it is evident from comments the officer made later in the interview (shortly after 12.14pm when a Bahasa Indonesian interpreter was present and when recording of the interview had commenced) that he had formed this view during the part of the interview when an interpreter was not present. 

2. At p 2 of the transcript, the officer is recorded as saying:

   ‘Ms Li, you’ve indicated to me that you have come to Australia to speak with some customers in order to see how a shipment had gone that arrived last week.’

   The transcript records that the interpreter is present at this stage, but that Ms Li (as       distinct from the interpreter) gives the non-responsive answer:

   ‘…I can speak English I think.’

3. Shortly thereafter, the officer decided that a Mandarin interpreter would be more appropriate.  After the Bahasa interpreter left the interview and before a Mandarin interpreter became available by telephone, the officer continued the interview without an interpreter.  During this discussion at pp 4 to 5 of the transcript, the following is recorded:

   ‘OFFICER:     Okay. We need to make sure why you come to   Australia.

   MS LI:            I come I sell clothes, customer.

   OFFICER:     Sell clothes to customer?

   MS LI:            Yes.’

4. The officer then questioned Ms Li about her business activities and sightseeing last time she visited Australia.  Ms Li is recorded as saying that she was in Australia for 10 days last time and that she saw customers for two days.  The officer appears to later confuse that evidence with her intentions on her current visit.  The discussion continued by reference to a container of clothes which was on its way to Australia and would be picked up by her ‘customer’, Mr Patterson, in the week after her arrival.

5. At p 13 of the transcript (which is still during the period where no interpreter is present) the interview is recorded as follows:

   ‘OFFICER:     You come to Australia this time for business?

   MS LI:            Yeah.

   …

   OFFICER:     Other reason for coming to Australia.

   MS LI:            Yeah, just…

   OFFICER:     Just business.

   MS LI:            Yeah, just business, okay, just a couple months. I bring   money, go back.’

6. At about 1.15 pm, again without an interpreter, the officer commenced to read a notice of intention to consider the cancellation of Ms Li’s visa.  During the course of reading that notice, a Mandarin interpreter became available and the officer re-read the notice, which the interpreter translated to Ms Li.

7. At p 15 of the transcript, the officer is recorded as saying to the interpreter:

   ‘I’m just explaining to her, and if you can repeat this, it has come to the department’s attention that there may be grounds for cancellation of your visa under section 116 of the Migration Act for the following reasons, okay. The reasons are you have made admissions that you have come to Australia for the purpose of conducting business. Therefore, you have ceased to have an intention only to visit or remain in Australia as a visitor temporarily for the purpose of visiting an Australian citizen. …’

8. The officer went on to inform Ms Li that he would conduct an interview at 1.30 pm that day to give her an opportunity to give reasons why her visitor’s visa should not be cancelled.

9. It appears that by this stage the officer had formed a preliminary view based on comments made by Ms Li, without the assistance of an interpreter, that Ms Li had come to Australia, in part, to conduct business.

10. At 1.40 pm, while a Mandarin interpreter was present, the officer asked Ms Li to provide reasons why the grounds for cancellation do not exist.  Ms Li replied to the effect that she came to Australia for a holiday and to collect money for clothes that she had previously sold.  She later said that she intended to do some sightseeing and collect money.  At p 21 of the transcript (as corrected), Ms Li said, through the interpreter:

    ‘…Because I am carrying many things for many people this time, mainly the things my customers asked me to buy for them in Cambodia. …’

11. Shortly thereafter, at p 23 of the transcript, the officer said that he had decided to cancel the visa ‘under s 116(1)(g) and regulation 2.43(1)(j)’, as ‘Ms Li has come to Australia for the intention of conducting business’.

THE LEGISLATIVE CONTEXT

1. Section 116(1)(g) of the Migration Act 1958 (Cth) (‘Act’) provides:

   ‘Subject to sub-sections (2) and (3), the Minister may cancel a visa if         he or she is satisfied that:

   …

   (g)       a prescribed ground for cancelling a visa applies to the holder;

   …’

2. Regulation 2.43(1) of the Migration Regulations 1994 (Cth) provides:

   ‘For the purposes of paragraph 116(1)(g) of the Act…the grounds prescribed are:

   …

   (j) in the case of the holder of:

   …

   (ii)        a Subclass 676 (Tourist (Short Stay)) visa;

   …

   that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit, or remain in, Australia as a visitor temporarily for the purpose of visiting an Australian citizen…or for another purpose, other than a purpose related to business or medical treatment;

   …’

3. Section 119(1) of the Act provides:

   ‘…if the Minister is considering cancelling a visa…under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:

   (a)       give particulars of those grounds and of the information…because of which the grounds appear to exist;        and

   (b)       invite the holder to show within a specified time that:

   (i)        those grounds do not exist; or

   (ii)       there is a reason why it should not be cancelled.’

MS LI’S CONTENTIONS ON THE INTERVIEW

1. Ms Li’s counsel noted that the answers given by Ms Li from 1.40 pm onwards when an appropriate interpreter was present at the interview reinforce the officer’s view formed earlier (when an appropriate interpreter was not present) that Ms Li came to Australia to conduct business.  However, counsel submitted that the lack of appropriate interpretation earlier in the interview ‘irretrievably poisoned the well’ and affected the officer’s view of Ms Li’s credibility.  Counsel contended that the officer denied Ms Li a fair opportunity to put her case during the period prior to when he had formed the view that there may be grounds for cancelling her visa. Counsel submitted that the officer denied Ms Li procedural fairness in the manner in which he conducted the interview.

PROCEDURAL FAIRNESS

1. The information obtained by the officer, on which he considered that there may be grounds for cancelling Ms Li’s visa, was obtained from Ms Li in the absence of a proper translation of the communications between them.  However, the officer had the benefit of an interpreter when he informed Ms Li that there may be grounds for cancelling her visa. He afforded her an opportunity, with the assistance of an appropriate interpreter, to inform him why her visa should not be cancelled.  During that part of the interview, Ms Li told the officer that she intended to collect money from customers during her stay, for the clothes she had previously sold.  In effect, Ms Li said that she intended to conduct some business by collecting money from customers and to also have a holiday.  She thereby exhibited a mixed purpose.  In the circumstances, no practical injustice arose (see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at [37]).

2. Although the officer inappropriately obtained some information from Ms Li without proper interpreting facilities, he afforded her an opportunity to disabuse him from any prima facie views he had formed as a result of those discussions. The oral notice issued under s 119 of the Act was interpreted properly. The answers given to it were interpreted. In those answers, Ms Li stated that she came to Australia for a holiday and the purpose of collecting money from customers. No practical injustice arose as a consequence of the failure of the officer to afford adequate interpretation prior to the reading of the notification under s 119 of the Act. Ms Li stated, with the assistance of interpretation, that she came for a mixed purpose. On the basis of these statements, the officer was entitled to cancel her visa.

REFUSAL TO ADMIT AFFIDAVIT EVIDENCE

1. Ms Li sought to tender before the Federal Magistrate affidavit evidence about the conditions and conduct of the interview and about her lack of understanding of the officer’s questions, absent an interpreter. Even if this evidence had have been admitted it would not have demonstrated any injustice which was not remedied by proper interpretation of the notification under s 119 of the Act and proper interpretation of the subsequent interview which commenced at 1.40 pm. Assuming, without deciding, that this evidence should have been admitted, its tender would not have affected the conclusion that, overall, there was no practical injustice visited upon Ms Li. In her affidavit, Ms Li seeks to contradict what her counsel agreed was an accurate interpretation of what she said in the interview when assisted by a Mandarin interpreter. This shows that little weight would have been given to the affidavit if it had been admitted.

ORDER

1. The appeal must be dismissed, with costs.  The appellant sought the costs of an application for interlocutory relief preventing her removal pending the appeal.  I see no reason why this circumstance should mean any extraordinary situation thereby arose such that costs should not follow the event. 

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        2 March 2007

Counsel for the Appellant:	Mr J Gibson
Solicitors for the Appellant:	Hymans Solicitors
Counsel for the Respondent:	Mr G Livermore
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 March 2007
Date of Judgment:	2 March 2007