Peng v Minister for Immigration
[2018] FCCA 3100
•1 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PENG v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3100 |
| Catchwords: MIGRATION – Application for review of a decision of Administrative Appeals Tribunal – five year resident return visa – notice of intention to consider cancellation – whether Applicant provided an incorrect answer in visa application – interpretation of ‘proceedings’ – whether Applicant aware of arrest warrant issued in China – legal unreasonableness – s.109 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.101, 102, 103, 104, 105, 107, 108, 109 Migration Regulations 1994 (Cth), reg.2.41 |
| Cases cited: COT15 v Minister for Immigration and Border Protection (2015) 236 FCR 148 Minister for Immigration and Citizenship v Khadgi (2010) FCR 248 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 |
| Applicant: | WEN PENG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1329 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 17 July 2018 |
| Date of Last Submission: | 7 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 1 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hughan |
| Solicitors for the Applicant: | Clothier Anderson Immigration Lawyers |
| Counsel for the First Respondent: | Mr Wood |
| Solicitors for the First Respondent: | Mills Oakley |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1329 of 2017
| WEN PENG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant, on 22 June 2017, made application for judicial review of a decision of the Second Respondent (‘the Tribunal’) dated 14 June 2017 which affirmed an earlier decision of a delegate of the Minister of Immigration and Border Protection (‘the delegate’) to cancel the Applicant’s (Subclass 155) (Five Year Resident Return) visa under s.109 of the Migration Act 1958 (Cth) (‘the Act’).
On 27 June 2018 the Applicant filed an amended application. On 16 July 2018 the Applicant filed a further amended application. It is this application on which the Applicant now relies. Five grounds are stated to establish jurisdictional error in the Tribunal’s decision. Those grounds are as follows:-
“1. The Tribunal misconstrued or misapplied Section 101 of the Migration Act 1958.
Particulars
a) The Tribunal was required to determine whether the visa applicant had completed his visa application forms in such a way that no incorrect answers were given or provided. The Tribunal found that:
(ii) At question 29 of his Form 80 the Applicant was asked “Are you or any other person included in this application, aware of any proceedings pending against you overseas or in Australia for an offence, including proceedings by way of appeal or review” to which the Applicant answered “No”
b) The Tribunal found that although the Applicant had not been charged with an offence (see paragraphs 51 and 55), nevertheless, the applicant’s answer should have been “Yes” because the Chinese Police were seeking to question him about a possible offence and for that purpose had obtained a warrant for his arrest from the Public Prosecution office (“The Procuratorate”). This finding misconstrued or misapplied the word “incorrect” in Section 101 as a plain reading of the question 29(e) required the Applicant to give the answer “No” as he had not been charged with an offence and he has never been so charged and there were no “proceedings pending against [him] ….. for an offence” .
2) The Tribunal constructively failed to exercise jurisdiction in misapplying or misconstruing the relevant legal test.
Particulars
a) The Tribunal was obliged to construe the meaning of the words “proceedings pending against you” in question 29(e) of the Applicant’s Form 80 and failed to appreciate that the words in question were modified by the phrase “for an offence”.
b) In determining that a warrant for the arrest of the Applicant issued by The Procuratorate constituted proceedings pending against you overseas or in Australia for an offence, the Tribunal failed to distinguish between an arrest warrant issued by an authority other than a court, where no charges have been laid before any such court for the investigation of an offence, which cannot constitute in law, proceedings pending against you overseas or in Australia for an offence and a proceeding for an offence against a person issued by a court.
c) Further, or alternatively, in determining whether the Applicant was aware that there were “proceedings pending against him …. for an offence” the Tribunal failed to consider whether the Applicant knew, understood or was otherwise aware that a warrant issued for the investigation of an offence constituted “proceedings pending against him” and failed to consider evidence that he did not have that awareness.
3) The Tribunal erred in the exercise of its jurisdiction and/or failed to exercise its jurisdiction to review the decision of the delegate of the First Respondent, by misconstruing and/or misapplying the nature of the discretion conferred by s 109 of the Act.
Particulars
(a) Section 109 of the Act confers on a decision maker, such as the Tribunal, a broad, unfettered discretion to cancel the visa held by a person in respect of whom the decision maker has found did not comply with one of various sections of the Act, including s 101(b).
(b) The discretion is to be exercised without the preconception that the person’s visa should be cancelled.
(c) Instead the Tribunal approached the exercise of the discretion with the preconception that, having found the Applicant had not complied with s 101(b) of the Act, his visa should be cancelled.
(d) Further the Tribunal took the view that the Applicant’s visa should be cancelled unless he persuaded the Tribunal there were “compelling reasons not to cancel the visa and they outweigh the grounds for cancellation”.
(e) In approaching the discretion in these ways, the Tribunal did not properly understand and/or apply the jurisdiction conferred by s 109 of the Act.
(f) In addition, the Tribunal failed to understand and apply its own finding that there was only one ground which enlivened the discretion to cancel the Applicant’s visa.
4. The Tribunal erred in the exercise of its jurisdiction and/or failed to exercise its jurisdiction to review the decision of the delegate of the First Respondent, by misconstruing and/or misapplying the policy requirement to consider whether Australia would breach any of its international obligations.
Particulars
(a) The Convention on the Rights of the Child Article 3.1 required the Tribunal to treat the best interests of the Applicant’s son as a primary consideration.
(b) The Tribunal did not treat the best interests of the Applicant’s son as a primary consideration.
(c) Instead the Tribunal erroneously placed “some weight” on the interests of the Applicant’s child.
(d) The Tribunal was also required to consider Australia’s non-refoulement obligations but did not do so.
(e) Instead the Tribunal took the view that it was open to the Applicant to apply for a protection visa but in doing so failed to recognise that the process of applying for and assessing a protection visa would not exhaustively cover the circumstances of the Applicant’s fears of harm if he were returned to China.
(f) Further, the Tribunal ignored the evidence that the Applicant would be subjected to serious harm on an illogical and irrational basis, i.e. the charges for which the Chinese authorities wish to interview him, are of lesser seriousness than those for which he was originally sought.
5. The decision of the Tribunal to cancel the Applicant’s visa was legally unreasonable, in that it was obviously disproportionate to the Tribunal’s finding the Applicant had not complied with s 101(b) of the Act and was a decision which no reasonable decision-maker could have made.”
The Applicant seeks orders quashing the Tribunal’s decision and requiring the Tribunal to determine the Applicant’s application according to law.
The First Respondent submits no jurisdictional error attends the decision of the Tribunal and seeks dismissal of the application.
The Applicant relies upon an affidavit affirmed on 22 June 2018 by Ms Teagan Jane Weir together with its annexures, which include:-
a)a Transcript of Proceedings produced by Spark and Cannon in relation to the Tribunal hearings on 1 March 2017 and 16 May 2017; and
b)two versions of the Form 80 “Personal Particulars for Character Assessment”, one being that lodged by the Applicant with his application for an Employer Nomination Scheme (Class AN) (subclass 121) visa (‘subclass 121 visa’) on 7 March 2007, and the other the version of the Form 80, current as at the affirming of the affidavit on 22 June 2018. The Applicant has filed submissions dated the 22 June 2018 and the 16 July 2018. The First Respondent has filed submissions dated 6 July 2018 and 7 August 2018. Each of these submissions are before the Court as is the evidence and materials contained in the Court Book filed 2 March 2018 and the Supplementary Court Book filed 26 June 2018.
Background
The Applicant was born on 25 August 1967 in Shanghai, People’s Republic of China. He was married to his spouse on 17 November 1999.
On 29 December 2006, in China, a warrant was issued for the arrest of the Applicant for the purposes of questioning him in the course of an investigation into whether he had committed an offence. The warrant was issued as a result of an application by the police in China to the prosecuting authorities, the “Procuratorate”.
On 7 March 2007 the Applicant applied for a subclass 121 visa. He was outside Australia and not in China.
On 19 March 2008, the Applicant was granted a subclass 121 visa by a delegate of the Minister of Immigration and Border Protection (‘the Minister’) and subsequently he travelled to Australia with his wife and their son.
On 28 April 2013, the Applicant was granted a subclass 155 (Five Year Resident Return) visa by a delegate of the Minister.
On 16 August 2016, the delegate sent to the Applicant a Notice of Intention to Consider Cancellation under s.107 of the Act (‘NOICC’). The NOICC gave four particulars of alleged non-compliance under s.101(b) of the Act. Section 101(b) of the Act provides that a non-citizen must fill in or complete his or her application form in such a way that “no incorrect answers are given”. It was asserted in the NOICC, inter alia, that the Applicant was aware that an arrest warrant was issued or would be issued, when he left China.
In particular, the NOICC indicated that:-
a)on 7 March 2007, the Applicant had applied for a subclass 121 (Employer Nomination Scheme) visa. On 19 March 2008, he was granted that visa;
b)in his application for the visa, the Applicant had answered certain questions. One of those questions (question 29 in the then applicable Form 80) was: “Are you, or any other person included in this application, aware of any proceedings pending against you overseas or in Australia for an offence, including proceedings by way of appeal or review?” The Applicant answered that question “no”;
c)the Department had received information from the Shanghai Municipal Public Security Bureau that there was an outstanding warrant for the Applicant’s arrest, issued on 29 December 2006, in relation to the following matter: “Summary of fact of the case: CHINA, Shanghai from 1 Feb 2006 to 23 September 2006 Peng who was general manager of Shanghai Zheng Asset Management Co Ltd illegally transferred 34.91 million shares to other uncertified agencies and made total illegal profit of 40.23 million. On 23 September 2006 Peng fled to Hong Kong and is now in Australia”;
d)accordingly, the delegate considered that the answer to the question was incorrect.
On 8 September 2016, the Applicant responded to the NOICC, via his current solicitors. In the response the Applicant asserted that in March 2007 there were not, and still were not, any “proceedings” against the Applicant, and that he was not aware of the arrest warrant issued in December 2006. In addition, the Applicant argued that the issuing of an arrest warrant did not constitute a “proceeding” against him.
On 27 October 2016, the delegate cancelled the Applicant’s subclass 155 (Five Year Return) visa.
On 2 November 2016 The Applicant lodged an application for review of that decision to the Tribunal.
The Tribunal heard oral evidence from the Applicant, his father and his wife on 1 March 2017. A further hearing was conducted at which the Applicant and his father gave evidence on 16 May 2017. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Applicant was assisted also by his solicitors.
On 14 June 2017 the Tribunal affirmed the decision to cancel the Applicant’s visa. The Tribunal found that the Applicant had not complied with s.101(b) of the Act by answering “No” to the question at paragraph 29(e) of the Form 80 ‘Personal Particulars for Character Assessment’ lodged with his application for an Employer Nomination Scheme (Class AN) (subclass 121) visa on 7 March 2007. Therefore, the Applicant had provided an incorrect answer in his Form 80.
The Tribunal
The Tribunal commenced its consideration of the Applicant’s claims and evidence by considering the applicable legislative framework as set out below.
The Legislation
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss. 101, 102, 103, 104, 105 and/or 107(2) of the Act.
Section 101 of the Act is as follows:-
“101 Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.”
Section 107 of the Act is relevantly as follows:-
“107 Notice of incorrect applications
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non‑compliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non‑compliance:
(A) give reasons for the non‑compliance; and
(B) shows cause why the visa should not be cancelled; and
…
(1A) The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise—14 days.
…
(2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement.”
Section 108 of the Act is as follows:-
“108 Decision about non‑compliance
The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non‑compliance by the visa holder in the way described in the notice.”
Section 109 of the Act is as follows:-
“109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.”
Regulation 2.41 of the Migration Regulations 1994 (Cth) (‘the Regulations’) prescribes the following circumstances:-
“2.41 Whether to cancel visa—incorrect information or bogus document (Act, s 109(1)(c))
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d) the circumstances in which the non‑compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non‑compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non‑compliance;
(j) any breaches of the law since the non‑compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
Note: Under s. 109 of the Act, the Minister may cancel a visa if there was non‑compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.”
Regulation 2.41 of the Regulations is not exhaustive of the circumstances which the Tribunal may take into account for the purpose of exercising the discretion in s.109 of the Act. The Tribunal might consider other matters to be relevant in any given case. However, reg.2.41 of the Act contains:-
“… all of the necessary mandatory criteria and, therefore, constitutes a comprehensive statement of those considerations which must be taken into account. There is nothing in the language of reg 2.41, the terms of s 109 or the context in which reg 2.41 is to be applied which requires that the Minister should give any particular weight to any one factor or group of factors nor is there any indication in any of those materials that one or more factors are to be accorded primacy.”[1]
Additionally, the Tribunal was not obliged to consider Australia’s protection obligations in considering the discretion.[2]
[1] Minister for Immigration and Citizenship v Khadgi (2010) FCR 248, [68].
[2] COT15 v Minister for Immigration and Border Protection (2015) 236 FCR 148.
The findings of the Tribunal
The Tribunal was satisfied that the delegate had reached the necessary state of mind to engage s.107 of the Act and that the notice issued under s.107 of the Act complied with the statutory requirements.
The Tribunal found in respect of the four particulars of the s.107 of the Act notice, that the grounds set out in three particulars were not made out, but that a single ground was established. The Tribunal stated, in paragraph 26 of the Statement of Decision and Reasons (‘the Decision Record’) as follows:-
“… the NOICC… refers to awareness by the visa holder of any proceedings, pending against him overseas for an offence to be charged (response to question 29, paragraph (e)) Form 80. This ground turns on the applicant's “awareness” of “proceedings” as defined by the Tribunal below. The Tribunal considers that this ground has been made out and the Tribunal therefore confines its assessment to the incorrect information given in Form 80, (question 29, paragraph(e) of the Personal particulars for character assessment as part of the ENS application.”
The Tribunal firstly noted, that which the delegate had, and as set out in paragraph 28 of the Decision Record:-
“As part of the visa holder’s application for Australian citizenship lodged in April 2012, the following information was received from the Shanghai Municipal Public Security Bureau that there was an outstanding warrant for the visa holder’s arrest issued on 29 December 2006 in relation to the following matter:
Summary of fact of the case: CHINA, Shanghai from 1 Feb 2006 to 23 September 2006 Peng was general manager of Shanghai Zhong Zheng Asset Management Co Ltd illegally transferred 34.91 million shares to other uncertified agencies and made total illegal profit of 40.23 million RMB. On 23 September 2006 Peng fled to Hong Kong and is now in Australia.”
The Tribunal noted in paragraph 30 of the Decision Record that it was not concerned as to whether the proceedings against the Applicant were justified or not, but rather “only concerned with the visa holder’s awareness of the proceedings”. To provide context, the Tribunal thereafter set out a summary of the Applicant’s account of events which were as follows:-
“From 13 August 2011 to 12 August 2007 the visa holder owned his own consulting company Shanghai Meiyin Investment Management Co Ltd;
The visa holder came into contact with the director of Yinfa, Mr Jianyin Wang and in 2006 the visa holder introduced Mr Wang to the Director of Zhongzheng;
In early 2006, the visa holder heard that Yinfa shareholders were looking for a broker to sell their shares through the US sharemarket. The visa holder suggested that Zhongzheng would be an appropriate choice for brokerage of share transactions;
After Yinfa and Zongzheng signed an agreement, Zhongzheng sought the visa holder's advice on floating Yinfa shares on the US market;
The visa holder was given an office and was called a “manager” because he managed the US float for Yinfa;
Zhongzheng agreed to the visa holder’s company, Maiyin with a commission on the profit that Zongzheng made on the Yinfa deal;
The visa holder successfully co-ordinated Yinfa’s listing on US Stock Exchange;
The Yinfa float was not well-received in the US. The share value of Yinfa dipped and caused Chinese investors to face losses;
With work completed on the Yinfa float, the visa holder left China for the purpose of employment in the Philippines;
The visa holder disputes the Shanghai Municipal Public Security Bureau’s (SPSB) version of events which indicate that the visa holder fled to avoid arrest. The allegation is unfounded and Interpol has given it no weight as the arrest warrant was not issued until December of that year;
When Yinfa’s shares performed badly the shareholders who suffered losses some of which were Communist Party members, took measures to ensure that authorities initiated criminal investigations of persons they believed were involved;
On 13 October 2006, the SPSB issued a “Written Decision of Case Filing” against the visa holder in order to investigate the “illegal operation of Zongzheng assets management company”. The visa holder was not aware of any investigation into his activities at that stage as the communication was internally filed and not made public;
The applicant provided two police clearances in respect of his subclass 121 visa application file don [sic] 7 March 2007;
The reason why the Procuratorate’s arrest warrant was not given any regard by the Chinese authorities when issuing the police clearances was because they were not warrants issued by a court but only by the Prosecution section which is what happens when someone is suspected of something;
This was not a ‘proceeding’ as that word is understood in Australian law;
On 9 May 2016, the visa holder received correspondence from Interpol which stated that the Red Notice issued on 29 August 2013 (for ‘contract fraud’) was blocked which effectively meant that SPSB were unable to substantiate the assertion that there were grounds for making allegations of fraud or even the lesser charge of engaging in illegal business operations against the visa holder;
The visa holder has never represented himself to the Department as ‘Managing Director” of Zhongzheng and he regrets having failed to provide more information about his employment relationship with Zongzheng. Despite this, the visa holder argues that a visa would still have been granted based on his formal qualifications and previous work experience;
The visa holder claims that his designation of ‘manager’ of Zongzheng given on the Form 80 was correct;
He disputes having provided incorrect information on three grounds which are: he is not guilty of fraud or any offence recognised by Australian criminal law, he is not guilty of the charge under Chinese criminal law of operating without a licence and he did not fill in his visa application forms incorrectly regarding criminal proceedings in China.”
The Tribunal made findings in respect of the account given by the Applicant which in part are set out in paragraphs 31 and 32 of the Decision Record. They are:-
“31. The Tribunal does not accept that the visa holder was not aware that the Chinese authorities had instituted proceedings against him because the Tribunal is satisfied that the visa holder fled China to the Philippines to Hong Kong and then Australia, to avoid the charges levelled at him. An arrest warrant was issued against the visa holder in December 2006, several months before the visa holder made his application for a Skilled visa in Australia.
32. It is not credible that the visa holder, had he been successful in his business enterprises in China and had nothing to fear from the consequences of the float he was involved in, would have left his home country at the particular time that he did. This decision turns, therefore, on the visa holder’s credibility and whether the Tribunal is satisfied that the reasonable person in the visa holder’s shoes would have been aware that something at the company he worked for was amiss, and that he would have come to the attention of the authorities. At hearing the visa holder himself stated that the shareholders were very angry because of the dip in price of shareholdings and the consequence of the transaction he was involved in because they had lost money.”
The Tribunal considered, and found not credible, the Applicant’s evidence and that of his father to the effect that neither were aware of an “arrest warrant” until the Department notified the Applicant in October 2016. The Tribunal noted however the question asked of the Applicant was not “Are you aware of an arrest warrant outstanding against you?”, but rather involved awareness as to ‘any’ proceedings pending against the Applicant. The Tribunal also noted the argument put forward by the Applicant and his father that:-
“…when the SPSB went to [the father’s] home in China in 2007, to seek assistance from the visa holder into an investigation related to the company in which the visa holder had worked, the officers took a softly, softly approach because they did not want to frighten the visa holder into not returning to China and therefore there was no reason to consider that there were “proceedings” against the visa holder.”[3]
[3] Decision Record, 38.
The Tribunal had credibility concerns as to the Applicant’s evidence finding the Applicant to be “disingenuous” in arguing he had no knowledge of the fact that the authorities in China had any concerns about his activities in China, given that an arrest warrant was issued in December 2006 after which time the Applicant left China. The Tribunal expressly found that the Applicant “was aware that proceedings pending against him overseas for an offence had been initiated by the SPSB”. The Tribunal said in paragraphs 41 to 45 of the Decision Record, the following:-
“41. The Tribunal considers that the likely scenario is that the visa holder was well aware of the proceedings against him when he left China to undertake “employment” in the Philippines and evade the Chinese authorities, and well before the SPSB went to the visa holder’s home to visit their father as claimed in March 2007 - a version of events the Tribunal does not in any case accept.
42. In terms of the Red Notice by Interpol, the Tribunal accepts that access by Interpol member countries to the visa holder’s file was blocked on 17 February 2014, however, this does not exclude the visa holder having an awareness of proceedings against him in China.
43. At hearing the visa holder stated that the first he had heard of the problems relating to the arrest warrant was when the department raised it with him in respect of his citizenship. In his statutory declaration dated 7 September 2016, the visa holder disputes that he “fled to Hong Kong” in September 2006, because in fact the visa holder left China for the Philippines (via Hong Kong). The Tribunal does not accept, however, that given the complex business nature of the matters the visa holder was involved in, that his business would have taken him to the Philippines (via Hong Kong), given he was well aware of the shareholders anger toward the company he was associated with.
44. Indeed, the fact that the visa holder fled to the Philippines, where the Tribunal does not consider that the business environment would have been particularly lucrative (given he was dealing with a large market like the United States previously), leads the Tribunal to have serious doubts about the visa holder's credibility. More likely, the Tribunal finds that the visa holder went to the Philippines via Hong Kong because he may have considered that it would have been easier to evade the Chinese authorities there for some period, than had he remained in Hong Kong or China. The Tribunal is of this view as it has little information before it that would demonstrate what business activities the visa holder was actually involved in in the Philippines.
45. These matters all go to the visa holder’s awareness of proceedings against him in China which the Tribunal finds existed at the time he fled China, and certainly at the time he lodged his ENS subclass 121 visa in Australia in which the incorrect information was provided.”
The Tribunal considered the Applicant’s submission to the effect that the word “proceedings” in the relevant question (Question 29(e) Form 80) “should be read in the very narrow sense of the word in that ‘there were no proceedings in any Court against him, nor had he been charged with any offence.’” The Tribunal also considered the Applicant’s submission to the effect that “under the Criminal Procedure Law of the PRC, a person who has an arrest warrant in their name cannot be charged or prosecuted until they have been detained”.
However, the Tribunal relevantly found as follows:-
“47. …the Tribunal considers that the term “proceedings” was not envisaged as relating specifically to court proceedings, but was deliberately included in the Personal particulars for character assessment (Form 80) as part of the ENS visa application, to catch precisely the circumstances relating to the visa holder where even if a person had not been charged, they were required to declare if they were aware of any sort of proceedings, regardless of their nature for an offence, whether or not charges had been laid and regardless of the legal system a foreign national might have proceedings instigated against them.
48. The Tribunal considers that it is inconceivable that the intent behind the regulations was that the authorities would only want to know about offences for which there had already been charges and convictions prior to the grant of a visa. The purpose of the character questions in Form 80 are, instead, for Australia’s immigration authorities to be aware of any proceedings, regardless of what stage they are at, relating to criminal/civil activity that a visa may be involved in, in their home country, and to alert Australia’s immigration authorities to inquire further.
…
51. Given that the visa holder has fled China it follows that he has not been charged or prosecuted, but this does not mean that proceedings in the broader sense of the word had not been initiated by the authorities. The Tribunal takes “proceedings” to mean investigation possibly leading to, but not necessarily, an arrest warrant. The fact that the visa holder was not in China to be charged or prosecuted does not mean that the proceedings were not afoot at the time he applied for his ENS visa.”
Consideration as to ‘proceedings’
The Minister submitted that the Tribunal’s analysis is sound; that the word ‘proceedings’, in its ordinary and natural meaning, is plainly capable of describing criminal investigative proceedings of the kind which the notice suggested that the Applicant was subject to in China. The Minister further submitted that given that the question in the visa form was designed to elicit information about the visa Applicant’s status in all kinds of countries with different legal systems and processes, no narrow approach should be taken to the word “proceedings”, reflecting particular usages in the Australian criminal context. Instead, as the Tribunal concluded, it is more appropriate to adopt a purposive approach to the construction of the question to ascertain what kind of information the form was trying to elicit, and why.
The Minister submitted further that perhaps the clearest indication of the intended meaning of the expression “proceedings pending against [the applicant] overseas … for an offence” in question 29(e) of the particular form is provided by the immediately surrounding context. Question 29(g) asks whether the Applicant has “ever been charged with any offence overseas or in Australia that is currently awaiting legal action”. The specificity of question 29(g) (have you been charged for an offence), compared to the generality of question 29(e) (are there proceedings pending against you for an offence), clearly suggests that question 29(e) was intended to have the broad scope identified by the Tribunal.
The Court accepts these submissions and rejects the Applicant’s submission that the Tribunal was wrong in law to adopt a broad interpretation of the meaning of the word ‘proceedings’. In the view of the Tribunal, question 29(e) (Form 80) “was written in such a way that it is not necessary for the visa holder to have been charged or convicted or had proceedings resolved against him”; and further that it was “set out in a general way to be inclusive of proceedings, whether investigations have been concluded or not.” The Court finds no error in this approach.
The Applicant further argued that the kind of “proceedings” contemplated by Q29(e) were proceedings issued by a Court and which were then “pending”. The Applicant argued the question also referred to the possibility of an “appeal or review” which reinforced that the correct construction was that a Court proceeding was contemplated. In addition, the Applicant argued, the direction immediately after Q29, as to what to do if the answer to any of the sub-paragraphs in Q29 was “Yes”, commenced with a reference to “the name of the court.” The Tribunal’s failure to distinguish between a proceeding issued by a Court against a person for an offence, and the issue of a warrant to arrest a person for an investigation in respect of an offence, the Applicant argued, was erroneous.
Question 29(e) is as follows:-
“Are you, or any other person included in this application, aware of any proceedings pending against you overseas or in Australia for an offence, including proceedings by way of appeal or review?”
Following question 29(i), the last sub-paragraph is the following:-
“If you answered ‘Yes’ to any of the above questions, give details of all occurrences. Include the following where appropriate:-
·the name of the court;
·The offence;
·The name of the terrorist organisation;
·The nature of the terrorist association;
·Details of terrorist acts;
·The sentence received;
·Relevant dates;
·To whom it applies (you or a person included in this application).”
As is clear, not each of the dot points above are applicable to each and every of the sub-paragraphs in question 29. Question 29(e) does not refer to a ‘court’ and the Court finds is not intended to be given the narrow construction for which the Applicant agitates.
The Applicant also argued that the Applicant’s answer to the relevant question was not “incorrect” unless he was “aware” that the criminal investigative proceedings underway in China were properly characterised as “proceedings” within the meaning of Form 80. That argument is rejected. The Tribunal did not accept that the Applicant was not aware of the proceedings and that finding was open to the Tribunal on the evidence before it.
Section 109 of the Act
The Applicant argued that the Tribunal “approached the exercise of the discretion conferred by s 109 of the Act on the basis that the Applicant’s visa should be cancelled because of what it considered was a serious instance of non-compliance”. The Applicant submitted that this should be inferred from various matters, including that: the Tribunal did not correctly express the discretion, by reference to its statutory formulation; the Tribunal did not attach the text of s.109 of the Act to its decision; the Tribunal entitled the relevant part of its reasons as “Should the visa be cancelled?” rather than “some more neutral expression, such as “Exercise of the discretion under s 109 of the Act” or “Whether to cancel the Applicant’s visa”; and the Tribunal wrongly considered the Applicant needed to persuade the Tribunal of “compelling reasons not to cancel the visa”. In essence the Tribunal’s approach was to consider why the visa should not be cancelled. In so doing, the Tribunal misconstrued s.109 of the Act.
It is clear the Tribunal understood the nature of its discretionary power by reference to the statutory framework. In paragraphs 6 and 9 and 61 to 63 of the Decision Record, the Tribunal set out the following:-
“6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
…
9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
…
61. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the visa holder under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
62. In exercising this power, the Tribunal must consider the visa holder’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
• the correct information
• the content of the genuine document (if any)
• whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
• the circumstances in which the non-compliance occurred
• the present circumstances of the visa holder
• the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
• any other instances of non-compliance by the visa holder known to the Minister
• the time that has elapsed since the non-compliance
• any breaches of the law since the non-compliance and the seriousness of those breaches
• any contribution made by the holder to the community.
63. Whilst these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.”
This argument is not made out. It is clear, on a fair and contextual reading of the Tribunal decision, the Tribunal understood the nature of the exercise of its discretion and approached that task in a correct way. The Tribunal considered the prescribed circumstances and the Department’s policy as set out in Procedural Advise Manual (‘PAM3’) ‘General visa cancellation powers’, as those matters related to the Applicant’s particular circumstances, including Australia’s non-refoulement protection obligations, a non-mandatory consideration, and the desirability of non-separation of the Applicant from his Australian citizen wife and child together with his permanent resident elderly and unwell parents. The weight to be afforded to differing factual matters in that consideration and exercise of its discretion was a matter for the Tribunal, in which it engaged.
International Obligations
The Applicant argued that the Tribunal made an error of the same kind in this proceeding as the Full Court of the Federal Court of Australia identified in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 at paragraph 142 (‘Wan’). That argument is rejected. In Wan, the Full Court held that the Tribunal had erred by failing to identify what the best interests of the Applicant’s children required, and then to balance that against other considerations. In this matter, the Tribunal plainly found that not cancelling the Applicant’s visa would be in the best interests of his Australian-citizen child. The Tribunal said, at paragraph 99 of the Decision Record the following:-
“Similarly, in respect of the visa holder’s spouse, it is open to her to return to China with the visa holder or to remain in Australia. It is noted that the visa holder’s spouse’s parents reside in China also and that she would receive support from them. Separation from her spouse, the Tribunal concedes is not a desirable outcome. The Tribunal has considered that the importance of the family unit not being separated is in the best interests of the child. Nonetheless, any separation that may ensue is in part the result of the non-compliance with s.101 (b) which requires that the visa holder should not provide or give incorrect answers in an application.”
However, balancing the above finding against other factors, the Tribunal considered that it was appropriate to exercise its discretion to cancel the Applicant’s visa. It was open to the Tribunal to do so.
Legal unreasonableness
The Applicant argued that the decision of the Tribunal to cancel the Applicant’s visa was obviously disproportionate to the Tribunal’s finding the Applicant had not complied with s 101(b) and was a decision which distorted some of the considerations mandated by reg.2.41 and ignored other evidence in support of the considerations. The Applicant argued it was a decision which no reasonable decision-maker could have made.
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, Allsop CJ, when looking to how it is a Court should determine whether an exercise of a discretion is ‘legally unreasonable’ noted as follows:-
a) The concept of legal unreasonableness “does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable)”. “Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality …” ([8]).
b) “Crucial to remember … is that the task of the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is is lawful” ([12]).
c) “The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather, it is whether a decision-maker could reasonably come to the conclusion. Depending on the nature of the decision, its attendant considerations and the statute in question, the Court may or may not have a degree of familiarity and confidence in assessing how a decision-maker ought to approach the matter. The decision and statutory context in Li was an example of this. Here, the decision was not a procedural decision; it was a substantive one concerned with an evaluation of the protection of the Australian community by a Minister of the Crown, personally.” ([21])
The decision the Tribunal was required to make was, as said by the First Respondent, a decision involving the evaluation of substantive matters bearing on whether a non-citizen should retain their legal entitlement to reside in the Australian community having regard to the objectives of the Act, in circumstances where the applicant gave an “incorrect” answer in his visa application form. That circumstance itself was ultimately weighed up in the Tribunal’s consideration of many countervailing matters.
The Court concludes it was open to the Tribunal to exercise its discretion to cancel the Applicant’s visa, for the reasons it gave. In particular, the Tribunal was concerned that the Applicant was deliberately attempting to conceal the interest of the Chinese authorities in him and that his conduct in providing incorrect information was intended to conceal from the immigration authorities that there were matters in China he had to answer and which may have gone towards him not meeting the character requirements of the visa.
The Tribunal’s decision appears to the Court to have been a “difficult decision” and one “about which minds could differ”,[4] but it was not legally unreasonable. The Tribunal considered those matters before it that it was required to consider. It weighed up those facts, both favourable and unfavourable to the Applicant, as determined by the Tribunal, in the exercise of the discretion. It is not for the Court to think the decision is necessary for the purpose. In looking at the Tribunal decision the Court can only conclude that a decision-maker, on the evidence presented, could reasonably come to the conclusion the Tribunal did.
[4] Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, 74.
The application will be dismissed with costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 1 November 2018
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