Park v Minister for Immigration

[2020] FCCA 2033

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARK v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2033

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a child residence visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.359AA, 360, 366A, 376

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v SCAR (2003) 128 FCR 553

Minister for Immigration v Singh (2016) 244 FCR 305

Minister for Immigration v SZMTA (2019) 93 ALJR 252

Applicant: SEONG HO PARK

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3264 of 2019

Judgment of: Judge Driver

Hearing date: 24 July 2020

Delivered at: Sydney

Delivered on: 24 July 2020

REPRESENTATION

The Applicant appeared in person by telephone

Counsel for the Respondents: Mr G Johnson by telephone

Solicitors for the Respondents: HWL Ebsworth

INTERLOCUTORY ORDERS

1. On the basis of the grounds set out in s.88G(1)(a) and/or (c) of the Federal Circuit Court of Australia Act 1999 (Cth), and until further order, Confidential Exhibits SAHG3 and SAHG4 are not to be published, or disclosed, except to the Court for the purposes of these proceedings.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3264 of 2019

SEONG HO PARK

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Park, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 November 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Park a child residence visa.  

2. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 17 July 2020. 

3. Mr Park is a citizen of the Republic of Korea who came to Australia in December 2009 on a student visa. On 19 January 2017 he applied for the grant of a child visa, sponsored by his mother Ms Eui Hang Cho (the sponsor). It was a requirement for the grant of the visa that Mr Park be the “dependent child” of an Australian citizen, permanent visa holder, or eligible New Zealand citizen.[1]

   [1] Clause 802.212(1)(a) of the Migration Regulations 1994 (Cth) (Regulations)

4. On 10 January 2018 the delegate refused to grant Mr Park the visa.[2] The delegate was not satisfied that Mr Park was a dependent child of the sponsor or that he was incapacitated for work. Additionally, the delegate was not satisfied Mr Park met Public Interest Criterion (PIC) 4020.

   [2] CB 271

5. Mr Park sought review of the delegate’s decision in the Tribunal. The Tribunal invited him to appear at a hearing.[3]  Mr Park attended the hearing, as did the sponsor and her partner.[4] On 20 November 2019 the Tribunal affirmed the decision under review.

   [3] CB 340

   [4] CB 386

Tribunal’s decision

1. The Tribunal referred to the information it had before it from Mr Park concerning his alleged financial dependence on the sponsor at [14], and to Mr Park’s evidence at the hearing at [15]-[17].  It informed Mr Park at the hearing that there was little independent evidence to support his claims of being financially reliant on the sponsor.[5] The Tribunal informed Mr Park at the hearing of the existence of two non-disclosure certificates issued under to s.376 of the Migration Act 1958 (Cth) (Migration Act).[6] The Tribunal informed Mr Park of the relevance of the information the subject of the certificates, and told him that it considered the certificates to be valid. The Tribunal invited Mr Park to comment on the validity of the certificates, but Mr Park provided no comment.

   [5] at [18]

   [6] at [19]

2. The Tribunal recorded at [20] that it invited Mr Park, pursuant to procedures under s.359AA of the Migration Act, to comment on or respond to information arising from the documents the subject of the certificates, concerning Mr Park having worked with Mr Edward Kang in providing fraudulent immigration advice and assistance to people, and that Mr Park had received payment for these services. The Tribunal put other information to Mr Park for comment at [21]. Mr Park responded to the matters put to him at [22]-[23]. The Tribunal was satisfied at [25] that Mr Park had been undertaking activities that constituted work and that he had been remunerated for those services.

3. The Tribunal considered at [26]-[28] whether Mr Park was incapacitated. The Tribunal concluded by reference to the evidence before it at [31], that Mr Park was not wholly or substantially reliant on the sponsor or her partner for financial support because of him being incapacitated for work. The Tribunal concluded at [32] that Mr Park did not meet clause 802.212 and clause 802.214 or clause 802.221 of Schedule 2 to the Regulations.

4. The Tribunal further considered whether Mr Park met the requirements of PIC4020. The Tribunal set out the information relating to Mr Park’s education history at [38]-[45]. It recorded at [46]-[47] Mr Park’s response to its concerns that he had provided false or misleading information about his education. Mr Park appeared to admit that there were errors in the information he had provided, but that he had not intentionally provided false and misleading information. The Tribunal found at [48]-[49] that Mr Park had provided to the Minister’s Department information that was false or misleading in a material particular in relation to his education history. The Tribunal was not satisfied at [60], in the circumstances, that the requirement that Mr Park meet PIC 4020 should be waived.

5. The Tribunal concluded at [61] that Mr Park did not meet clause 802.223 at the time of its decision.

The present proceedings

1. These proceedings began with a show cause application filed on 11 December 2019.  Mr Park continues to rely upon that application.  The three grounds in it are:

   1. To extend my stay.

   2. To appeal decision from AAT and Home Affairs.

   3. To receive my rightful visa.

2. Mr Park was at pains to point out that the grounds in his application were augmented by an affidavit which was filed with it.  I received that affidavit as a submission.  A further affidavit by Mr Park making assertions in relation to the Minister’s Department I declined to receive on the basis that it was not relevant to any issue in these proceedings.

3. I did receive the affidavit of Sophie Alexandra Helena Given made on 6 July 2020 in relation to the Minister’s application for a suppression order which I made. 

4. I further had before me as evidence the court book filed on 6 July 2020. 

5. The Minister’s submissions deal with evidentiary questions at [12]-[15], and I have regard to those submissions in relation to the evidentiary decisions that I have made.

6. I invited oral submissions from Mr Park this morning.  It is plain that he is dissatisfied with the Tribunal decision.  He told me of his current difficult living circumstances.  He is living with his mother and does not have a separate bedroom, but lives in the lounge room, essentially.  His brother and partner are also living in the house.  He paid a substantial amount to apply for the visa, and does not consider that the outcome reflected his circumstances properly.

7. Mr Park conceded that there was an issue in relation to his work with Mr Kang in a migration agency.  He does not dispute assisting Mr Kang, but maintains that he was not deriving an income from that work.  Mr Park was at pains to point out that, in his view, he did nothing wrong in assisting Mr Kang, and does not want to be treated as a criminal.  In that regard, as I sought to explain to him, the focus of the Tribunal’s attention was not whether any law had been breached in the assistance Mr Park gave Mr Kang in his migration business, but rather the bearing that that information had on the question of whether Mr Park was financially dependent upon the sponsor.

8. In my view, the Tribunal addressed the relevant questions in considering the visa application on review.  The procedure followed by the Tribunal was fair, inasmuch as the Tribunal put to Mr Park adverse information that was before the Tribunal and invited his comment. 

9. The Minister’s submissions deal with the grounds advanced in Mr Park’s application and the affidavit which accompanied it.  I agree with those submissions.

10. Mr Park asserts a denial of procedural fairness. He does not articulate, either in the grounds of the application or in any of his affidavits, what the basis of the complaint is. The Tribunal complied with its procedural obligations under Part 5 of the Migration Act, in that it:

    a)invited him to appear at a hearing to give evidence and present arguments as required under s.360(1);[7] and

    b)invited his comment on information that would be the reason, or a part of the reason, for affirming the decision under review as required under s.359AA at [20]-[21].[8]

    [7] CB 340

    [8] CB 406-409

11. In particular, the Tribunal took steps to inform Mr Park of the existence of two non-disclosure certificates, it informed him of the nature of those certificates, and invited him to comment on the validity of the certificates. Having done so, no procedural unfairness arose in relation to the certificates.[9] Further, the Tribunal exercised its power under s.376(3)(b) of the Migration Act to disclose to Mr Park parts of the information protected from disclosure by the certificate. That information concerned, relevantly, Mr Park having undertaken work allegedly as a migration agent, and having been remunerated for that work. The Tribunal adopted appropriate and lawful processes in relation to the non-disclosure certificates. Mr Park was not denied procedural fairness.

    [9] cf Minister for Immigration v Singh (2016) 244 FCR 305; Minister for Immigration v SZMTA (2019) 93 ALJR 252 at [38]

12. As the Tribunal did not deny Mr Park procedural fairness, it is unnecessary for the Court to consider the question of materiality and to further examine the contents of the documents that comprise Confidential Exhibits SAHG3 and SAHG4 to Ms Given’s affidavit for that purpose. Having regard to the certificates themselves (Exhibits SAHG1 and SAHG2 to Ms Given’s affidavit) the certificates were validly issued in that the reason given in the certificates for their issue was to protect the identity of a confidential informant.

13. In relation to Mr Park’s claim that the Tribunal failed to serve the documents in a proper manner, Mr Park does not identify what documents he is referring to, or what obligation the Tribunal had to serve documents on him. The complaint is baseless.

14. In relation to Mr Park’s claim that he was denied a right to representation before the Tribunal, he had no such right.[10] Mr Park appeared before the Tribunal, and there is no evidence before the Court that he expressed any concern to the Tribunal about his capacity to participate in the hearing (save for his request for priority processing of the review application, which the Tribunal considered, but rejected[11]). There was no evidence before the Tribunal that Mr Park was incapacitated to such an extent that he was unable to participate in the hearing.[12]  The claim does not identify an arguable case of error by the Tribunal.

    [10] section 366A of the Migration Act

    [11] CB 326

    [12] cfMinister for Immigration v SCAR (2003) 128 FCR 553

15. Lastly, Mr Park’s assertion that the Tribunal failed to conduct the review according to law by taking a limited view of the Migration Act and the Regulations and which fitted the Tribunal member’s personal view, could on one view be an assertion of bias. On a fair reading of the Tribunal’s decision record there is no basis to an assertion of bias (either apprehended, or actual). The Tribunal’s reasons clearly set out the basis upon which it concluded that Mr Park was not financially dependent on the sponsor, and the basis upon which it concluded that he did not meet PIC4020. The Tribunal informed Mr Park of the non-disclosure certificates issued with respect to certain documents and it properly sought his comment on the validity of the certificates, and on information that would be the reason or a part of the reason of its decision. No bias arises from these circumstances.

16. Mr Park is left in difficult circumstances, as he described to me. His options, which I discussed with him, are limited. The Tribunal dealt with the child visa application in accordance with its obligations under the Migration Act, and its decision is, in my view, free from any legal error. It is now up to Mr Park to consider what his next steps will be.

17. I conclude that Mr Park is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

18. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

19. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Mr Park made some brief submissions and did not oppose a costs order.

20. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  30 July 2020