Li v Minister for Immigration (No.2) - [2007] FMCA 22

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION (No.2)

[2007] FMCA 22

MIGRATION – Revocation of tourist visa because applicant intending to conduct business in Australia – application to review officer’s decision – alleged inadequate interpretation and other deficiencies – no jurisdictional error found – application dismissed.

Migration Act 1958, s.499
Migration Regulations 1994, reg.2.43(1)(j), 676

Perera v Minister for Immigration and Multicultural Affairs (1999) FCA 507
SZGWM v Minister for Immigration & Anor [2006] FMCA 1161
Sandoval v Minister for Immigration and Multicultural Affairs (2001) FCA 1237
Walton v Philip Ruddock (2001) FCA 1839

Applicant:

LI LI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File number:

MLG 1476 of 2006

Judgment of:

Burchardt FM

Hearing date:

9 January 2007

Date of last submission:

9 January 2007

Delivered at:

Melbourne

Delivered on:

24 January 2007

REPRESENTATION

Counsel for the Applicant:

Mr Krohn

Solicitors for the Applicant:

Hyman’s Solicitors

Counsel for the Respondent:

Mr Livermore

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

The application be dismissed.
The Applicant shall pay the Respondent’s costs fixed in the sum of $8,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1476 of 2006

LI LI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

The immediate matters that led to this proceeding can be stated shortly. On 17 November 2006, the Applicant arrived in Australia and was, after a period of time that cannot be precisely ascertained, interviewed by an officer of the Respondent, Mr Adam Ritter.
Although counsel for the Respondent sought to inform the Court as to the sort of reasons that generally give rise to such an interview, there is no proper evidence before the Court as to what it was that gave rise to the interview with Mr Ritter and, as I indicated during the hearing, I am not prepared to draw any inferences. It is sufficient to note that the interview with Mr Ritter took place for reasons not explained.
During the currency of the interview, Mr Ritter came to the conclusion that the Applicant's class TR (676) (i.e., tourist) visa should be cancelled.
The reason given on the Form 1111 which recorded that decision was, in essence, that the Applicant was in Australia for business purposes and accordingly no longer had an intention only to visit Australia as a visitor temporarily for the purpose of visiting an Australia citizen.
The Applicant filed her application under the Migration Act 1958 (“the Act”) on 20 November 2006 and was successful in achieving interim relief by way of injunction from the Court as presently constituted on 24 November 2006, whereby the Respondent was restrained from removing the Applicant from Australia until hearing of the application.
On 9 January 2007, the matter was heard.
The orders sought by the Applicant are in the form of a declaration that the decision of Mr Ritter was unlawful and invalid, and ancillary relief effectively to prevent the Respondent from in any way relying upon the decision, and to release the Applicant from immigration detention. By an amended application filed on 22 December 2006, the Applicant detailed three grounds of alleged jurisdictional error, all of which had multiple particulars.
It should be noted that counsel for the Respondent did not oppose the Applicant being allowed to rely upon her amended application, and accordingly the Court granted leave for such to occur.

What Took Place on 17 November 2006

The Applicant arrived by air from China on 17 November 2006 after connecting flights which appear to have taken almost 20 hours (Applicant's affidavit, 8 December 2006, paragraph 6).
Although the Applicant states in her affidavit that she arrived at Melbourne at approximately 9.30 am and that she believes that Mr Ritter began interviewing her at approximately 10.00 am (Applicant’s affidavit, 8 December 2006, paragraph 7) there is in fact no material that enables the Court to decide precisely when the interview commenced.
Counsel for the Respondent was prepared to concede that the interview may well have begun at 10.45 am that morning, this being the first entry recorded in a document entitled "Monitoring Possible Refused Entries/Detainees at the Airport", referable to the Applicant and which is Exhibit MJB5 to the affidavit of Michael John Brereton sworn on 23 November 2006 on behalf of the Respondent (it should be noted that Exhibit MJB5 was not formally proved, but it was not the subject of objection by counsel for the Applicant).
However long the interview may have proceeded between Mr Ritter and the Applicant, at some point Mr Ritter decided to proceed with the assistance of an interpreter. Although, as was pointed out by the Court during the hearing, the transcript does not reveal when that transcript commenced, it would appear from Exhibit MJB4 to the first affidavit of Mr Brereton that this in all probability was about 12.14 pm.

The interview proceeded for a relatively short time with the cooperation of the Bahasa Indonesian interpreter, but that interpreter was of little assistance because it was apparent that the Applicant spoke minimal Bahasa Indonesian.
It is clear that thereafter the interview continued between Mr Ritter and the Applicant (from page 4 of the transcript, line 35 onwards) for some time. Thereafter there was another break (page 14 line 30) of an amount of time that cannot be ascertained, although whatever the period of that adjournment, it seems more likely than otherwise to me that it was for the purposes of enabling an interpreter in Mandarin to be present by telephone.
The interview recommenced at 1.15 pm or 1.16 pm and continued for a short time, recommencing at 1.40 pm and continuing until 2.02 pm and resuming again at 2.20 pm. The interview finally concluded at 2.38 pm.
The net result of these interviews was, as I indicated earlier, that Mr Ritter cancelled the Applicant's tourist visa.
Much of the criticism advanced by counsel for the Applicant of the events and outcome of 17 November 2006 relates to the asserted failure on the part of Mr Ritter to realise, as it was submitted he should have realised, that the Applicant was not able properly to conduct the interview in English, and the alleged inadequacies both of the transcript and of the translation effected by, in particular, the Chinese interpreter.
In the ultimate, both counsel listened to the DVD from which the typed-up transcript was made, and it was by consent exhibited as Exhibit R1. Both counsel in effect requested, either explicitly or implicitly, that the Court itself listen to the disc, and I indicated that I would do so during the hearing without objection.
I should interpolate that while it is not possible to say how long the interview with Mr Ritter was before transcript commenced, it was obviously of a sufficient period of time for Mr Ritter to form at least some conclusions, which are recorded in the transcript itself. Whether it was a continuous process of interview from 10.00 am or thereabouts, or even 10.45 am or thereabouts, through till 12.14 pm when the transcript started, it is impossible to say. It must, however, have been a more than fleeting conversation.
Having listened to the tape attentively myself, it is quite clear that in the initial period in which the Bahasa Indonesia interpreter is present, the Applicant is having difficulty in proper participation in the interview. This is markedly the case where she is endeavouring to speak in Bahasa Indonesian herself.
That period of time, however, lasted only for a short time and occupies the transcript, as I have noted, from pages 1 to page 4 at line 35. Very little was said by the Applicant during this passage, and the only pertinent answer which she gives at page 2 at line 40 is plainly non-responsive to the question that she had been asked by Mr Ritter. It should be noted, however, that in response to Mr Ritter's question at the bottom of page 2 line 42, "Your English is okay?", the Applicant responded, "Yes, yes".
After the departure of the Bahasa Indonesian interpreter, whose participation from the inception of the interview till her departure took about seven minutes, the interview continued for a further 13 or so minutes (as I have been able to ascertain from listening to the tape and observing the time elapsed as indicated by my own computer) before an adjournment took place. Not all of the 13 or so additional minutes were spent in conversation. Some of it was in silence while what appear to be the sounds of a computer being operated took place, and for part of the time there was background music which I infer was playing as a result of a loudspeaker telephone call made by Mr Ritter seeking a response from the interpreting service. It should be noted that that music makes it clear why there are a number of indistinct passages on the transcript.
However long the adjournment that thereafter took place was, and there is no indication of its length, the interview recommenced at 1.15 pm in the presence of a Mandarin-speaking interpreter, albeit that she was present by telephone.
Two things should be said at this point. First, although it is clear that Mr Ritter was seeking the assistance of an interpreter throughout the time recorded on the transcript, nonetheless he and the Applicant were talking to one another in a way which Mr Ritter obviously thought was sufficiently interactive to make such conversation useful. Indeed, it is apparent to me that a number of the answers given by the Applicant reflect a not unsophisticated command of English, even taking into proper consideration the reservations referred to by Kenny J in

Perera v Minister for Immigration and Multicultural Affairs
(1999) FCA 507 at [34] to [36] (“Perera”). It should be noted in this regard further that unlike Perera's case, the Applicant was able to communicate for some time with Mr Ritter in English, and as I have said, her answers in some respects seem quite fluent, with the exception of an answer given on page 13 at line 24 where one might reasonably infer that she was confused by the question asked of her.
Upon the resumption of the interview at 1.15 pm, Mr Ritter initially started to read to the Applicant the notice of intention to consider cancellation of her visa. It is noteworthy that he commenced to do this without an interpreter, and I infer that he would have continued without an interpreter had that been necessary.
Fortunately however, an interpreter became available almost immediately and thereafter the bulk of the proceedings were translated. It should be noted, however, that the Applicant continued to play an active part in the interview, in the sense that she made a number of interjections spontaneously in English, such as at page 20 at line 16, page 21 at line 15, page 22 at lines 16 to 32 inclusive (which show her appearing at line 34 to make a joke with Mr Ritter) and at page 26 at line 10.
The other matter to which I should draw attention at this point is the fact that during all parts of the interview that were recorded, Mr Ritter's manner is what might be properly described as entirely appropriate. He is polite, he offers spontaneously to enable the Applicant to have water or toilet visits, and his manner revealed by his style of speech is not in any way overbearing, aggressive or hostile. He did ask a number of what might be described as leading questions in the course of his uninterpreted passage with the Applicant, but I do not feel that that is a matter of proper criticism of him. It was plainly for him to ask about those things which were on his mind.
I should go back a bit at this time to say that it is, as has been agreed by all, apparent that there was a prior period of interview which was not transcribed. The only matters referred to in the transcript which directly show any relevant prior discussion are as follows:
(Page 2 line 16)
“MR RITTER:   All right. Ms Li, you've indicated to me that you obviously worked for a company that deals with Mr - I forgot his name - Ian Patterson.”
(Line 36)
“MR RITTER:   It's all right, interpreter that's fine. 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. Is that correct?”
(Page 3 line 24)
“MR RITTER:   Yes. No, I understand that. She actually said her preference was to speak Indonesian, so we may be better off, I think, with a Mandarin interpreter.”
(Page 20 line 41)
“MR RITTER:   I understand, I know you're here to collect money and also, as you've mentioned earlier, that you're here to speak with your customers in order to sell more stock.”
(Page 24 line 5)
“MR RITTER:   No, look, unfortunately, Ms Li, you already indicated earlier that you were going to conduct business for a week and then do sightseeing after that.”
These are the only references to matters that appear to me to have been the subject of unrecorded discussion.
It should be noted, however, that even during the period that the parties were together without a translator, the Applicant made a number of responses that would have indicated, reasonably in my view, that the Applicant was in Australia at least in part to conduct business.
(Page 4 line 41)
“MR RITTER:   Okay. We need to make sure why you've come to Australia.
MS LI:   I come. I sell clothes - customer.”
(Page 5)
“MR RITTER:   For three years, yes. Last time you come to Melbourne, how many customers did you sell clothes to?
MS LI:   I think three customer.”
On page 9 at line 14 to page 10 there is an exchange that indicates that the Applicant has been involved in the sending of a container of clothes amounting to 27,000 items to Australia for Mr Patterson (or arguably for the Applicant), in circumstances where at page 11 line 1 the Applicant said:
“Mr Ian (Patterson), my customer. Mr Ian, he my customer.”
At page 12 the Applicant confirmed that she would speak to Mr Ian's customers as well (line 15).
While concessions made by the Applicant on page 13 that she came to Australia for business might be said to arise out of confusion and the leading nature of the questions put, at page 13 line 39 the following exchange took place:
“MR RITTER:   Okay. So you see customer?
MS LI:   Yeah.
MR RITTER:   Get money?
MS LI:   Yeah.
MR RITTER:   And then go back to Cambodia?
MS LI:   Yeah.”
While it might be asserted that the matters mentioned by Mr Ritter as having occurred before transcription began may have either been misunderstandings or simply not have occurred, I note that in one particular case Mr Ritter's assertion is in fact proved by the transcript. On page 24 at line 5, this exchange took place:
“MR RITTER: No, look, unfortunately, Ms Li, you already indicated earlier that you were going to conduct business for a week and then do sightseeing after that.”
The response given by the interpreter at line 22 was:
“INTERPRETER: I told you I might spend one week here but it is also possible I collect all the money in two days and I will be just (indistinct) customer and then I will go to city. If I have to conduct business, that's what (indistinct)…”
However, from the corrected version of the last exchange, it is apparent that what Ms Li actually said was:
“I wouldn't have given you false information. I'm still telling you the truth. I told you I might spend one week here seeing customers. But it's also possible I can collect my money in two days. For the rest of the time they are going to drive me to Sydney and Melbourne for sightseeing, let me spend Christmas here, and they are paying for my air ticket. Mainly I'm here for sightseeing, because I come here only once a year. If I'm to conduct business, I may have to come here every month.”
In other words, the assertion made by Mr Ritter on page 24 at lines 5 and following, that Ms Li had indeed indicated during a period that I think was untranscribed that she was going to conduct business for a week and then do sightseeing, was in fact correct.
Subject to the question of the quality of the interpretation, a matter to which I shall return, it is also quite apparent that once the Mandarin interpreter was involved, from page 15 at line 27 onwards, the Applicant was given a very clear understanding of what it was that was in Mr Ritter's mind.
When the interview resumed at about 1.40 pm, after the short adjournment, the Applicant gave a number of other answers through the interpreter that confirmed on any view that she was here at least in part to collect money for goods that she had already sold to Melbourne (eg, page 17 at line 37 and page 18 at line 36 - both inaccurately in part translated, but not as to this part of the substance of the answer).
In response to direct questions from Mr Ritter about the nature of her relationship with Mr Patterson, the Applicant was, at the best, equivocal as to whether it extended beyond a business relationship. She gave answers at page 19 of the transcript which, if looked at objectively, would by no means indicate that she was in an intimate relationship let alone a spousal relationship with Mr Patterson.
At page 20 at line 1 and further at line 37, the Applicant further confirmed that she was in Australia to collect money from clients. Although it is apparent from the corrected translation that what the interpreter said on the transcript is not a correct translation of what the Applicant said, the substance of what the interpreter said in these two extracts was correct. Although the Applicant disavowed business transactions in both of the extracts on page 20, she clearly evinced an intention to collect money for items sold and also to do sightseeing.
At some point in the process Mr Ritter spoke to Mr Patterson. From Mr Patterson's affidavits and from what it seems is accepted by both sides are Mr Ritter's notes of his conversation with Mr Patterson (Exhibit MJB7 to the affidavit of Mr Brereton sworn on 22 December 2006) it seems that Mr Patterson may have told Mr Ritter something annotated by Mr Ritter as "may apply for spouse in the future". He also said something that caused Mr Ritter to make an annotation, "never conducts business in a-a", which I take to be an assertion by Mr Patterson that the Applicant did not conduct business in Australia.
I have gone through all the material in considerable detail because of the way in which the applicant has presented her case. Nonetheless, I think there is considerable force in the submissions made by counsel for the Respondent.
Counsel for the Respondent pointed out that the decision-maker had before him the original application made by the Applicant. That application showed in respect of Mr Patterson's relationship, "relationship to you", that he was the employer of the Applicant, and the reason given for the visit was "to visit friend during festive season". It also asserted at paragraph 29 in relation to funds, "carry $US1500", and this assertion as to funds does not sit very comfortably with the Applicant's repeated assertion during her interview with Mr Ritter that she had not brought any money and was going to collect funds upon her arrival from business customers.
In my view, counsel for the Respondent is correct in his submission that it all boils down to whether or not the Applicant was given a reasonable opportunity to put her case. In my opinion, she was. She was given a fair opportunity to do so to Mr Ritter both when they were speaking together without an interpreter and again when they were speaking with an interpreter after she had been clearly warned of the possibility of the cancellation of her visa.
I think that this is so despite the various errors shown by Exhibit MJB6 to have occurred in the translation. While a number of the errors were unhelpful to the Applicant to at least an extent, for the reasons I have already described, the errors in translation were not in my view sufficient, as Kenny J put it in Perera at 38, "to make out his case that the interpretation before the tribunal was so incompetent that he was prevented from giving his evidence".

While it is by no means clear to me that the Applicant in fact needed an interpreter, the fact is that an interpreter was provided and that through the interpreter she put her case in terms sufficiently clearly translated and intelligible to Mr Ritter.
I have had careful regard to the decision of Kenny J in Perera and also to the helpful observations of Lloyd-Jones FM in SZGWM v Minister for Immigration & Anor [2006] FMCA 1161 at [19] in these terms:
“When a complaint in respect of an interpreter is raised, the Court should consider whether there is a “correct” translation of these proceedings or document in question available, against which the interpreter’s performance can be compared: VWFY at [10]. In making any comparisons, it is enough if the translation is sufficiently accurate such that the idea or concept translated has been communicated; NAIF v Minister for Immigration [2003] FMCA 458 AT [63]; WACO v Minister for Immigration [2003] FCAFC 171 at [26]. Other relevant factors to take into account are the manner of the applicant in their responses, including responsiveness to interpreter answers to questions asked, coherence of those answers, consistency between answers and the case sought to be made and, more generally, any evidence of confusion in exchanges between the Tribunal and the interpreter: Perera v Minister for Immigration at [41] which was applied in VWFY at [11] and P119/2002 AT [20].”
In my view, the standard of interpretation in this case was such that the applicant was able to put her case and was not vitiated by such deficiencies as there were in the interpretation process. It should be noted that there was no confusion, at least none apparent to me, between Mr Ritter and the interpreter. There was some confusion on at least one occasion between the interpreter and the Applicant (see page 18 at line 36 where the words "Sorry, I'm a bit confused," were plainly uttered by the translator and referred to her own state of mind following an exchange with the Applicant). Nonetheless, while there were a number of other exchanges in Mandarin which may also have reflected some difficulty of communication between the interpreter and the Applicant, it is clear that they were generally able to communicate, indeed that the Applicant herself was able to understand what was passing between the interpreter and Mr Ritter (I refer here to the earlier mentioned passages where Ms Li spoke herself), and taken overall, I do not find that the interpretation in this case was of a standard to give rise to any relief to the Applicant.
In large part that disposes of the various arguments propounded by the Applicant. I accept the submission for the Respondent that the only question for this Court is whether the decision being challenged was infected by jurisdictional error (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [46]).
In my view, the decision of Mr Ritter was not infected by such error.
While that conclusion is in one sense sufficient to dispose of the matter, there are a number of other issues raised by the amended application to which it is appropriate to turn now in terms.

Ground 1(a)

In my view, Mr Ritter did take into account such difficulties the Applicant had in communicating in English. It seems to me that the decision to obtain a translator was only marginally necessary, but in any event that is what Mr Ritter did. He plainly had regard to this consideration.

Ground 1(b)

There is nothing in the transcript or in the material taken as a whole to suggest that Mr Ritter was ever confronted by any express assertion that the Applicant was the de facto spouse of Mr Patterson. Mr Patterson has deposed (paragraph 3 of his affidavit sworn on 8 December 2006) that he did not refer to the de facto relationship between himself and the Applicant on her visa application form because the term "de facto" is not one which is commonly used in Cambodia.
Plainly, the Applicant herself never suggested she was in any intimate relationship with Mr Patterson. Her answers would reasonably have suggested that there might be the possibility of some future relationship in my view.
Although Mr Patterson has sworn in paragraph 12 of his 8 December 2006 affidavit that "I told him that the applicant was my girlfriend and that we live together in Cambodia. Also, I said that we work together," that answer is strikingly similar to the 50-50 answer given by the Applicant herself during the interview at page 19 at lines 30 to 40.
There is nothing in the material to suggest that Mr Ritter did not fail to have proper regard to that information to the extent that it was of any moment.
Furthermore, even if Mr Ritter had been alerted by the fleeting and understated comments of Mr Patterson to the possibility that the Applicant was in truth seeking to visit Australia as a person visiting a spouse and thus be eligible for a schedule 2 item 676.212(a) visa rather than the actual visa issued under schedule 2 item 676.212(b) (and this is what the substance of at least part of the Applicant's case in this regard was), that visa would have been cancelled because of the terms of reg.2.43(1)(j) of the Migration Regulations 1994 (“the Regulations”), because the Applicant would have been found no longer to have an intention only to visit Australia for the purpose of visiting a spouse. I accept that there is some possible tension between the terms of reg.676 and reg.2.43(1)(j), but the terms of reg.2.43(1)(j) seem to me to be clear, and this would in any event dispose of the Applicant's argument on this point.

Ground 1(c)

Counsel for the Applicant properly conceded that this ground adds very little to ground 1(b). In my opinion, I do not think that the remarks made by the Applicant to Mr Patterson would have properly given rise to an obligation on Mr Ritter's part to consider whether the Applicant's intention in travelling to Australia was to visit her de facto spouse and thus sufficient to meet the requirements of item 676.212(a) of schedule 2 to the Regulations. Even if such an obligation did arise, there is no doubt that the answers given by the Applicant in relation to her business activities would have led to the cancellation of the visa pursuant to reg.2.43(1)(j) in any event.

Ground 1(d)

It is not correct to say that Mr Ritter failed to give consideration to hardship to the Applicant. The issue of hardship was referred to in terms by Mr Ritter at page 16 at line 20. Although that passage was not entirely correctly translated, what was put to the Applicant was "whether or not the cancellation will cause hardship to you". It is plain that Mr Ritter turned his mind to this issue because he expressly referred to it. He also expressly referred to the possibility of an exclusion period in the event that the visa was cancelled at page 16 at line 13.
In my view, there is no basis to conclude that Mr Ritter failed to give consideration to the possibility of hardship to the Applicant. For reasons already given, I do not think that in the circumstances there was any obligation on Mr Ritter to consider whether the decision to cancel the visa might visit hardship upon Mr Patterson. I do not think Mr Ritter was informed that Mr Patterson was the Applicant's de facto spouse. To the extent that the issue may have been adverted to, there is no basis for me to find that Mr Ritter did not give it proper consideration.

Ground 2(a)

This ground raises the question of the interpretation, and the lack of it, for the first period of time during which the interview took place. Whatever the length of the conversation without an interpreter, it was not in my view likely to have been oppressive (albeit that self‑evidently the Applicant would have been tired - but these interviews have to take place in circumstances such as these straightaway). It is by no means clear that the Applicant did need an interpreter, but to the extent that one was required, one was provided. I have dealt with the other aspects of the criticism of the interpretation already.

Ground 2(b)

There is no force in the proposition that the record of interview was in some way rendered incomplete and not a true record of the interview. Such interruptions as are recorded on the transcript are all readily comprehensible in the context in which they took place. They took place for obvious reasons such as endeavours to obtain an interpreter.

Ground 2(c)

This ground relates to an alleged failure to offer the Applicant food. Initially it was deposed by Mr Patterson on information and belief in paragraph 11 of his affidavit sworn on 22 November 2006 that:
“She informs me, and I believe that she was offered no food or drink during the interview. It was not until 4 pm in the afternoon that she was given a glass of water.”
That assertion was met by Exhibit MJB5, which was not in the ultimate the subject of objection, which shows that the Applicant was offered water at 10.45 am, subsequently offered water again at 11.30 am and 12.43 pm, was offered food and water at 1.30 pm and at 2.39 pm (on which occasion it was rejected), was offered toilet facilities at 3.00 pm and water at 3.15 pm, both of which she accepted.
The transcript shows that Mr Ritter of his own motion said at page 14 line 20, "Do you need to go to the toilet or have a drink or something like that?", an offer he repeated at line 25 as to drink. Ms Li said no on each occasion.
While it is true that at page 23 line 1 the interpreter said that the Applicant had said that she was "starving", Mr Ritter asked that the question be repeated and the answer was that the Applicant did not want water, did not need to go to the toilet "or anything". Not only does this show that the initial highly coloured version of events described by Mr Patterson was wildly overstated (a matter I would be prepared to put down to Ms Li's general distress at that time), but more importantly it shows that the Applicant was not mistreated in the fashion that ground 2(d) would wish to assert. I repeat again that the tenor of the interview between Mr Ritter and the Applicant on the recording is at all times proper and courteous.

Ground 3(a)

This matter relates to the interpretation issue and I have already dealt with that.

Ground 3(b)

This raises again the question as to whether Mr Ritter should have considered whether or not the Applicant was entitled to a visa on the footing that she was visiting a spouse. I have already dealt with this argument.

Ground 3(c)

This raises nothing additional to the other grounds.

Evidentiary Issues

Although the Applicant through her counsel initially took objection to the receipt into evidence of Exhibit MJB6 insofar as it contained the review report by Chen Xu and the annex to that report, that objection was ultimately withdrawn. This was a sensible concession given that not only were the defects that gave rise to the objection essentially of a formal nature (lack of proper attestation of Chen Xu's expertise and the documentation not having been attested to on oath or affirmation), the fact is that the annex generally showed answers more favourable to the Applicant than the erroneous passages in the transcript.
Counsel for the Respondent objected to the affidavit material sworn by the Applicant and Mr Patterson on 8 December 2006.
The Applicant submitted that this material was relevant as to showing what Mr Ritter would have learnt had he asked the relevant questions that it was said he failed to ask.
It was submitted also that this material, not being the subject of cross‑examination, must be accepted.
I do not think that that correctly puts the position. Material of this sort being, as it necessarily is, ex post facto justification, is highly likely to be self-serving. In the ultimate, however, it is not necessary for me to come to any definite view as to credit issues in respect of this material. I accept the submission of the Respondent that it is irrelevant. It was not before the decision-maker. Furthermore, I have not accepted the criticisms of Mr Ritter's conduct as to his alleged failure to give consideration to relevant matters, which is the only basis upon which this affidavit material could have had any relevance in any event.

The Migration Series Instructions

Finally, I should deal with the question of the alleged failure on the part of Mr Ritter to comply, as the Applicant submitted he should have complied, with the migration series instructions which form annexures to the affidavit of Mr Di Donato sworn on 8 December 2006. Counsel referred me to two decisions of the Federal Court about similar matters; namely, Sandoval v Minister for Immigration and Multicultural Affairs (2001) FCA 1237 (“Sandoval”) and Walton v Philip Ruddock (2001) FCA 1839 (“Walton”) in this regard.
In Sandoval, Gray J analysed the relevant instrument and concluded that it constituted a direction given by the Minister pursuant to s.499 of the Act with which the relevant officer in that case had failed to comply.
In Walton, by contrast, there was affidavit material before Merkel J to the effect that the relevant instrument was not a ministerial direction for the purposes of s.499.
In this case there is no evidence as to whether or not the migration series instructions annexed to Mr Di Donato's affidavit are or are not instructions pursuant to s.499 of the Act. It is not clear to me whether or not the document on its face constitutes a mandatory set of instructions to the relevant officers, including persons such as Mr Ritter. Nothing, however, in my view turns on this because there is nothing in the material that shows that Mr Ritter failed properly to take into consideration the question of possible hardship to the Applicant or anyone else in the event that the visa was cancelled for reasons to which I have already referred.
I note that in Walton at [75] to [77], Merkel J dealt with a set of circumstances that would not appear to be dissimilar to those in this case. Although it is clear there were some differences as to the facts in that case from those in this one, the circumstances are sufficiently analogous to be of assistance to me. I respectfully would have arrived at the same conclusion as his Honour expressed at paragraph [77] in these terms:
“In any event, I am not prepared to assume that the delegate did not have regard to the relevant primary considerations. The fact that the delegate did not refer to those considerations does not mean that she disregarded them. There is nothing in the material before me that would warrant a conclusion that the delegate did not consider the consequences of the cancellation for Ms Hart and the applicant and also the applicant's prior behaviour in relation to the department.”
In this regard it should be noted that in this case prior behaviour in relation to the department is only tangentially relevant. Nonetheless, it should be noted that the Applicant did in the interview with Mr Ritter appear to assert that she had conducted business on prior occasions when she had visited Australia on a tourist visa.

Conclusion

Although counsel for the Applicant presented a very substantial body of argument on behalf of his client and did so in, if I may say so, a very skilful fashion, I do not think that there is any merit in any of the arguments advanced on the Applicant's behalf. For the reasons given, this application must be dismissed and the Applicant must pay the Respondent's costs.
Nonetheless, I have little doubt that the real reason for the Applicant’s problems was not particularly sinister and is revealed by the correctly translated version of the transcript page 18 line 36 in these terms:
“The reasons I was getting a tourist visa was because I have my business and can’t wait for a long time. Its quicker to get a tourist visa.”
The Applicant will plainly have learnt the lessons of this unfortunate short-cut. In the event that she applies for waiver of the exclusion period I would hope that the responsible authorities would bear in mind that the Applicant has apparently visited Australia in the past in the same fashion as she sought on this occasion, and that she does not appear to have engaged in conduct that, (leaving aside infraction of the prohibition of business), was in any other sense harmful or inappropriate.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Burchardt FM.

Associate: Brooke Evans

Date: 24 January 2007