Lo v MICMSMA

Case [2020] FCA 895

FEDERAL COURT OF AUSTRALIA

Lo v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 895

Appeal from: Lo v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2019] FCCA 2642
File number: NSD 1926 of 2019
Judge: RARES J
Date of judgment: 18 June 2020
Catchwords:

MIGRATION – other family (residence) (Class BU) carer visa application – regs 1.03, 1.20, cll 836.213 and 836.227 of Sch 2 of Migration Regulations 1994 (Cth) – where cl 836.213 required that applicant “is sponsored” at time of application – where cl 836.227 required that sponsorship mentioned in cl 836.213 approved by Minister and still in force at time of decision – where sponsor had dementia at time of application – where Tribunal found sponsor not have capacity to understand sponsorship obligations at time of application – whether signed support by sponsor’s spouse on original application evidence of spouse’s sponsorship undertaking in reg 1.20 – whether cl 836.213 permits a person to give sponsorship undertaking after time of application.

MIGRATION – certificate under s 376(2) Migration Act 1958 (Cth) – where Department gave Tribunal certificate Tribunal found valid – where Tribunal disclosed only some information covered by certificate and told applicant rest irrelevant – where provider of information withheld only sought to remain anonymous and identity not disclosed in balance of information – whether failure to disclose other information material.
Legislation:

Migration Act 1958 (Cth) s 376

Migration Regulations 1994 (Cth) reg 1, sch 2 cll 836.212, 835.213, 836.227

Cases cited:

Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Date of hearing: 18 June 2020
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 34
Counsel for the Appellants: Mr R Chia
Solicitor for the Appellants: MurdockCheng Legal Practice
Counsel for the First Respondent: Mr P Knowles
Solicitor for the First Respondent: Sparke Helmore
Counsel for the Second Respondent The second respondent filed a submitting appearance

ORDERS

NSD 1926 of 2019
BETWEEN:

HSIANG-LING LO

First Appellant

YI-SHAN HOU

Second Appellant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

RARES J

DATE OF ORDER:

18 JUNE 2020

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first respondent’s costs of the appeal.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

RARES J:

  1. This is an appeal from the Federal Circuit Court’s decision not to grant the appellants Constitutional writ relief in respect of the decision of the Administrative Appeals Tribunal made on 2 July 2018 to affirm the Minister’s delegate’s decision not to grant the appellants other family (residence)(Class BU) visas: Lo v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2019] FCCA 2642.

  2. The appellants are mother (Ms Lo) and daughter…

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AGLC
Lo v MICMSMA [2020] FCA 895
Case
[2020] FCA 895
Decision Date

CaseChat Overview and Summary

In the matter of Lo v MICMSMA, the appellant, Ms Lo, sought to appeal the Tribunal’s decision to dismiss her application for a carer visa under the Migration Act 1958 (Cth). The primary issue before the court was whether Ms Lo’s sponsorship obligations could be satisfied after the time of her visa application. Additionally, the court had to determine whether the Tribunal’s failure to disclose certain information covered by a certificate under section 376(2) of the Migration Act 1958 (Cth) was material.

The court held that the Regulations required a sponsor to undertake certain obligations at the time of the visa application, and these obligations could not be satisfied after the application had been made. The court found that the Tribunal correctly identified that Ms Lo's father, who had dementia, did not have the capacity to understand the sponsorship obligations at the time of the application. Furthermore, the court held that the mother's signature on the original sponsorship form was an indication of her support for her husband's sponsorship, but it did not constitute her own sponsorship undertaking.

The court rejected Ms Lo’s argument that the failure to disclose certain information covered by the certificate under section 376(2) was material. The court found that the gist or core of the information had been disclosed to Ms Lo, and any failure to disclose the actual form itself would not have been material.

The appeal was dismissed, and the appellants were ordered to pay the first respondent’s costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellants pay the first respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In its reasons, the Tribunal referred to the certificates and its finding that they were valid. It stated that it had placed no weight on matters within the documents that it did not regard as relevant, and that it had put the core of the (relevant) information to Ms Lo. It recorded her response, set out above. As it had indicated during the hearing, the Tribunal found that it was not possible to change a sponsor or to provide a new sponsorship form during the course of the process of considering the application for the carer visa. It found that the mother’s signature on the original form 40 in 2012 indicated her support for her husband’s sponsorship of their daughter, but that this indication of support was not, itself, a consent by the mother to be the sponsor herself or to fulfil the actual sponsor’s sponsorship responsibilities required under the Regulations. The Tribunal made the following findings:31. There is no independent information before the Tribunal to demonstrate that, at the time of application, Mr Lo understood his sponsorship undertakings. It is evident, that Mr Lo’s dementia condition was established before it is claimed that he signed the sponsorship form. It is apparent that his condition was proven before the time of application and before the Power of Attorney was provided. The Power of Attorney does not authorise the attorney to make health and lifestyle changes or to sign documents on Mr Lo’s behalf. It merely empowers the attorney to manage the visa application. Other information is that Mr Lo and [the mother’s] statements were written by others and there is no independent evidence that either of them understood the content of the information. The information has been provided to the Department and the Tribunal in English, when the evidence before the Tribunal is that both Mr Lo’s and [the mother’s] English skills are very limited. Neither, was the information provided in a language understood by Mr Lo and [the mother] and then translated by a relevant person.32. Having considered the evidence individually and as a whole, the Tribunal is not satisfied that that, at the time of application, Mr Lo understood the sponsorship undertakings or that another person could commit to the undertakings on Mr Lo’s behalf.33. Therefore, at the time of application, the applicant was not sponsored as required by the legislation and does not satisfy cl.836.213 of Schedule 2 to the Regulations. At the time of decision the sponsorship is not in force and does not satisfy cl.836.227 of Schedule 2 to the Regulations.(emphasis added)The appellants’ submissions The appellants argued at the trial and on appeal that it was possible for an applicant for sponsorship, such as Ms Lo, to provide, later than the time of the application, material to show that her mother had sponsored her at the time of the original application, and therefore the sponsor had not changed. She relied on Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251 to support the proposition that it was not necessary for the sponsor to be identified, or have agreed to undertake the responsibilities of sponsorship at the time of the application and that this identification or agreement could occur at any time up to the time of decision. She also argued that, alternatively, the Tribunal had failed to give her notice, in contravention of its obligation under s 360 of the Act, that her mother’s sponsorship in the 2018 form would be taken only as evidence of the mother’s support of the father’s acting as sponsor, rather than as the mother’s independent undertaking to sponsor the daughter in the mother’s own right. Ms Lo contended that if it was going to use the 2018 form in that way, the Tribunal had to bring to this to Ms Lo’s attention during the hearing.

Decision

Reasons for decision

Ms Lo also argued that the certificate under s 376 was invalid, and the Tribunal’s failure to disclose more fully the material the subject of the webform information could have affected the result of the review.The Trial Judge’s decision The trial judge rejected all of the appellants’ arguments on the grounds. He rejected the first ground and found that the father was the only person, at the time of the visa application, who had given a sponsorship undertaking, and that the mother signed the form 40 in 2012 only to indicate her support of the father’s sponsorship, and not in her own capacity as a proposing sponsor. His Honour found that the 2018 form could be interpreted in one of two ways, either as being a new sponsorship by the mother for the daughter to be the father’s carer or, alternatively, to show that it supported an inference that the mother wished to sponsor their daughter to be the mother’s carer. The trial judge found that on neither of those views of the effect of 2018 form could Ms Lo make out any jurisdictional error by the Tribunal. That was because the 2018 form could not supply a basis for satisfying the requirements of cl 836.213, which could only occur at the time of the application, relevantly in 2012. His Honour rejected the second ground below on the bases that Ms Lo was on notice, first, from the delegate’s decision, that her father’s capacity to understand the nature of what he was doing in signing the 2012 sponsorship form was an issue and, secondly, during the hearing, about the capacity of the mother to become a sponsor during the course of consideration of the 2012 application. He found that the Tribunal had not made a jurisdictional error in its finding that the requirements of cl 836.213 had not been met. His Honour rejected the third ground and found that the certificate under s 376 was valid. He concluded there was a reasonable prospect that the disclosure of the webform document would, by implication, disclose the identity of the informant who wished to have his or her identity treated in confidence. The trial judge said that, if he were wrong in that conclusion, the gist or core of the information the subject of the webform had been disclosed to Ms Lo at the Tribunal hearing and that any failure to disclose the actual form itself would not have been material relying on: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 444 [44]. Consideration In my opinion, grounds 1 and 2 cannot succeed. The Regulations set out a scheme that defined a sponsor in regs 1.03 and 1.20(1), as a person who undertook the obligations stated in reg 1.20(2) in relation to the applicant for the visa. Sponsorship, as defined in reg 1.03, meant an undertaking to sponsor an applicant of the kind referred to in reg 1.20. The requirement in cl 836.213 that an applicant be sponsored by an Australia relative (relevantly here, the father), or the relative’s spouse necessarily required that the sponsor, at the time of the application, had to indicate that he or she, then, was prepared to undertake the obligations set out in reg 1.20(2).

Ratio Decidendi

Legal Principle Established

His Honour rejected the third ground and found that the certificate under s 376 was valid. He concluded there was a reasonable prospect that the disclosure of the webform document would, by implication, disclose the identity of the informant who wished to have his or her identity treated in confidence. The trial judge said that, if he were wrong in that conclusion, the gist or core of the information the subject of the webform had been disclosed to Ms Lo at the Tribunal hearing and that any failure to disclose the actual form itself would not have been material relying on: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 444 [44]. Consideration In my opinion, grounds 1 and 2 cannot succeed. The Regulations set out a scheme that defined a sponsor in regs 1.03 and 1.20(1), as a person who undertook the obligations stated in reg 1.20(2) in relation to the applicant for the visa. Sponsorship, as defined in reg 1.03, meant an undertaking to sponsor an applicant of the kind referred to in reg 1.20. The requirement in cl 836.213 that an applicant be sponsored by an Australia relative (relevantly here, the father), or the relative’s spouse necessarily required that the sponsor, at the time of the application, had to indicate that he or she, then, was prepared to undertake the obligations set out in reg 1.20(2). Next cl 836.227 required that in terms: The sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force. Thus, cl 836.227, referred back to a fact that had to exist at the time that the application was made. That is because cl 836.213 did not, in its terms, refer to “sponsorship,” but set a criterion that the applicant for the visa “is sponsored” (emphasis added) by an identified person. Moreover, although the structure of the forms cannot govern the interpretation or construction of the Regulations, in my opinion, they appear to be drafted with a similar understanding. I reject the appellants’ argument that the decision in Berenguel 84 ALJR 251 could apply to cl 836.213 so as to allow a sponsor to be identified after the visa application is made. French CJ, Gummow and Crennan JJ held that a requirement for a skilled residence visa, that an applicant have vocational or competent English at the time of the application, could be satisfied by the provision of evidence to support the standard or competency in English was obtained after the application had been made. Their Honours said that the evident purpose of the alternative criteria was to ensure that, when the Minister or delegate decided upon the application for a visa, the applicant: (84 ALJR at 255 [24])will have demonstrated recent competency in the English language. It does not follow that the criterion can only be satisfied by evidence provided to the Minister at the time of submitting the application. Their Honours then noted that s 55 of the Act provided that the Minister had an obligation to consider information provided by an applicant for a visa at any time up to the time of the decision, and that it was possible to provide up-to-date information at the time of the decision as to his or her competency in English.