Rong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 673
•9 June 2022
FEDERAL COURT OF AUSTRALIA
Rong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 673
Appeal from: Rong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 6071 (18 December 2020) File number(s): NSD 31 of 2021 Judgment of: GREENWOOD J Date of judgment: 9 June 2022 Catchwords: MIGRATION – consideration of whether the Administrative Appeals Tribunal (the “Tribunal”) engaged in jurisdictional error in reaching a decision to affirm a decision of the Minister’s delegate to cancel the applicant’s approval for the conferral of Australian citizenship under the provisions of the Australian Citizenship Act 2007 (Cth) on the ground that the applicant was “not of good character” having regard to conduct of participating in the submission of fraudulent documents to the Department of Immigration and Border Protection in support of an earlier application under the provisions of the Migration Act 1958 (Cth) for the grant of a Skilled Independent (Subclass 189) visa on her own behalf and on behalf of a family member described as her de facto partner
STATUTES – consideration of, in particular, ss 21, 22, 22A(1B), 22B, 22C, 23A, 24, 25 and 28 of the Australian Citizenship Act 2007 (Cth)
Legislation: Australian Citizenship Act 2007 (Cth)
Judiciary Act 1903 (Cth)
Cases cited: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Aboriginal Affairs v Peko‑Wallsend Limited (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 116 Date of last submission/s: 16 November 2021 Date of hearing: 23 November 2021 Counsel for the Applicant: Mr N Poynder Counsel for the Respondents: Mr J Kay Hoyle Solicitor for the Respondents: Clayton Utz ORDERS
NSD 31 of 2021 BETWEEN: XUE RONG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
GREENWOOD J
DATE OF ORDER:
9 JUNE 2022
THE COURT ORDERS THAT:
1.The constitutional writs of prohibition, certiorari and mandamus are granted quashing the decision of the Administrative Appeals Tribunal of 18 December 2020, removing the matter into this Court and then remitting the matter to the Tribunal to be determined according to law.
2.The first respondent pay the costs of the applicant of and incidental to the application.
3.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
Background
These proceedings are concerned with an application under s 39B(1) of the Judiciary Act 1903 (Cth) for the grant of the constitutional writs in relation to a decision of the Administrative Appeals Tribunal (the “Tribunal”) of 18 December 2020 affirming a decision of the Minister’s delegate of 2 January 2020 to cancel the applicant’s approval, granted by the Minister on 30 July 2019, for the conferral of Australian citizenship.
Section 21(1) of the Australian Citizenship Act 2007 (Cth) (the “Act”) provides that a person may make application to the Minister to become an Australian citizen. Section 21(2) of the Act sets out what the Act describes as the “general eligibility” for Australian citizenship (factors (a) to (h) of s 21(2)) and one criterion (s 21(2)(h)) is that the person “is of good character at the time of the Minister’s decision on the application”.
Section 24(1) of the Act provides that if a person makes an application under s 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Section 24(1A) provides that the Minister must not approve such an application unless the person is eligible to become an Australian citizen under one of subsections (2), (3), (4), (5), (6), (7) or (8) of s 21. However, the Minister may refuse to approve a person becoming an Australian citizen despite the person being eligible for approval under one of subsections (2), (3), (4), (5), (6) or (7) of s 21.
In order to become an Australian citizen, the approved person must make a pledge of commitment under s 28 of the Act.
Section 25(1) of the Act provides that the Minister may, by writing, cancel an approval given to a person under s 24 if the person has not become an Australian citizen under s 28 by making the relevant pledge, and either of two “situations” under s 25(2) “apply”. Relevantly for these proceedings, the “first situation” provided for by s 25(2) is that the person is “covered by” subsections (2), (3) or (4) of s 21 and the Minister is satisfied that “at the time the Minister proposes to cancel the approval, the person is not of good character”: s 25(2)(b)(iii) of the Act. In this case, the applicant was covered by s 21(2) of the Act and had not made the pledge of commitment under s 28 of the Act. The Minister, by his delegate, concluded that the applicant was “not of good character”. Thus, one of the two “situations” in s 25 having been engaged, s 25(1) was also engaged.
As earlier noted, the text of s 25(1) is a conferral of power on the repository of the power in terms that the repository “may cancel, by writing, an approval given to a person”. The applicant contends that the proper characterisation of the power is the conferral of a discretionary power to cancel an approval once the power is engaged, and there may be factors which suggest that the discretionary power to cancel ought not be exercised in all the circumstances. The Minister contends that the power conferred by s 25(1) is properly understood as an obligation to cancel an approval once s 25(1)(a) and one or other of the two “situations” contemplated by s 25(2) apply, and in that sense, the word “may” ought to be understood as “must”, once the relevant factors are found which engage the power.
It will be necessary to return to that matter later in these reasons.
At the centre of the Tribunal’s decision to affirm the delegate’s decision that the applicant at the date of exercise of the cancellation of the approval was “not of good character” is an examination, as part of the Tribunal’s de novo review, of how it came to pass that fraudulent documents were submitted to the Department of Immigration and Border Protection in support of the applicant’s earlier application for a Skilled Independent (Subclass 189) visa on 10 October 2014, and the extent to which the applicant was, or was not, engaged in that conduct.
There are three grounds of contended jurisdictional error on the part of the Tribunal.
First, in the context of such a serious matter, the Tribunal failed to make a finding concerning the extent of the applicant’s knowledge of, and involvement in, the fraudulent conduct and failed to specify in the reasons the precise conduct of the applicant, how it was fraudulent conduct on the part of the applicant and how it was acted upon.
Second, the applicant contends that the Tribunal’s finding at para 37 is illogical and not supported by the rules of reason. The Tribunal’s finding at para 37 of its reasons was that the applicant’s evidence of denials of having emailed the fraudulent documents from a particular email address was undermined by the circumstance that the email address from which the documents were sent was an email address attributed to the applicant in a tenancy agreement in issue in the proceedings.
Third, the Tribunal failed to take account of and make findings concerning the applicant’s reasons for contending that the discretion, if engaged (and properly understood as an element of s 25(1) of the Act) ought not to have been exercised to cancel the approval, but rather ought to have been exercised against cancelling the approval.
The context
These questions arise in the following context.
On 10 October 2014, an online application was completed for a points‑based Skilled Independent (Subclass 189) visa. The primary applicant is recorded as Miss Xue Rong (“Ms Rong”), a national of the People’s Republic of China (“China”). A family member included in the application was described as Ms Rong’s de facto partner/spouse, Mr Jin Zhang, also a national of China. As to the contact details in Australia, the residential address recited in the online application for those persons included in the application was “14/8 manor st eight mile plains Queensland 4226”. As to an email address, the application recites the following email address for the applicant: rongxueXYZ. The email address for the purposes of these reasons is otherwise anonymised. In these reasons, I will call this particular email address the “XYZ email”. The application recites the applicant’s agreement to the Department communicating with the applicant by way of receiving notifications by the XYZ email.
In terms of the skills assessment, the nominated position held by Ms Rong recited in the application was that of “Accountant General”. The application recites the educational qualifications of Ms Rong.
Because the application was an online application, it was not signed by Ms Rong or anyone else.
It seems that on 6 December 2014, Ms Kelly Dobie of the Department sent an email to “hyperlink mailto: [the XYZ email]”, addressed to “Dear Xue Rong” attaching particular information and observing that “[w]e prefer contact with this office concerning your application to be email”.
On 1 January 2015, an email was sent to “GSMBrisbane” from “XUE RONG” under the subject “RONG, Xue – IMMI Request for More Information” addressed to “Dear Kelly”. The hard copy of the email describes the sender as set out above but does not identify the email address. It was common ground before the Tribunal (and in these proceedings) that the email was sent from the XYZ email. Addressing Ms Kelly Dobie it says this:
Jin Zhang and I have provided the documents you require.
we attached the following documents to the immiaccount:
1. Rong Xue’s AFP and police check
2. Jin zhang’s diploma certificate as evidence of functional english.
3. both I and Zhang Jin has finished health check.
4. Rong Xue’s passport page.
Regarding the evidence of [de facto] relationship:
because some documents exceed the limit of the size of the attachment we send to you via email, and we sent you two emails because one email exceeds the size of the limit of the email.
1. our lease agreement with both mine and Jin [Z]hang’s name
2. our photos
3. our love story
4. jin zhang’s parents’ support letter
5. the air ticket and hotel booking of our travelling together
6. evidence of our common address
7. share account
if you need any further documents to prove our relationship, please do not hesitate to contact us. we will try to provide more as you require.
As to the evidence of the de facto relationship between Ms Rong and Mr Zhang, the email attaches eight documents (sent, it seems, in two tranches).
The first document is a “General tenancy agreement” (eight pages). It shows a signature for a name, Xue Rong, and next to the signature is a date “2013/10/24” in typewritten text. It also shows a signature for a name, Jin Zhang, annexed to a typewritten date “23/10/24” and in each case, there is a witness signature of a witness named “Yan Liu” and the handwritten date “24/10/2013”. The names of the tenants are recited as, Tenant 1, Jin Zhang, and Tenant 2, Xue Rong. The email address for Xue Rong is recited as the XYZ email. The address of the rental premises is recited as “14‑8 Manor St, Eight Mile Plains QLD”. Hereafter, in these reasons, I describe this address as the “Eight Mile Plains address”. The Tenancy Agreement is a term agreement from 24 October 2013 to 23 October 2014.
The next document (after the Love Story statement of Xue Rong, the Love Story statement of Jin Zhang and the support letter from Zin Zhang’s parents) is a Commonwealth Bank Statement for Ms Rong for the period commencing 1 May 2013 to 31 October 2013. It recites an address for Ms Rong as “29 Narrooma St Sunnybank QLD 4109” (the “Sunnybank address”). The last seven days of that statement fall within the period of the tenancy agreement.
The next document is a Commonwealth Bank Statement for Ms Rong for the period 1 May 2014 to 31 October 2014. Almost all of the period is under the period of the tenancy. The Bank Statement recites an address for Ms Rong as the Eight Mile Plains address.
The next document is another Commonwealth Bank Statement for Ms Rong for the period 1 November 2013 to 30 April 2014. It falls entirely under the period of the tenancy and recites as an address for Ms Rong, the Eight Mile Plains address.
The next document is a Commonwealth Bank Statement for Mr J Zhang for the period 9 October 2013 to 8 April 2014. Almost all of the period falls under the period of the tenancy. It recites as an address for Mr Zhang, the Eight Mile Plains address.
The next document is another Commonwealth Bank Statement in the name Mr J Zhang for the period 9 April 2013 to 8 October 2013. It falls outside the period of the tenancy and recites as an address for Mr Zhang, the Sunnybank address.
The next document is another Commonwealth Bank Statement for Mr J Zhang for the period 9 April 2014 to 8 October 2014. It recites as an address the Eight Mile Plains address.
The next documents are various invoices from Virgin Australia for travel for 25 May 2013 for both Ms Rong and Mr Zhang showing the Sunnybank address. The next is a Jetstar invoice addressed to Mr Zhang of 5 May 2014 showing the Eight Mile Plains address. The next is a Jetstar invoice for travel on 25 May 2013 to Mr Zhang showing the Sunnybank address. Another Jetstar invoice dated 8 April 2013 addressed to Mr Zhang shows the Sunnybank address.
The applicant observes in submissions in the present application that on 1 January 2015 when the email was sent to Kelly Dobi of the Department attaching all these documents, Ms Rong was on an extended overseas trip. Reference is made to Appeal Book (“AB”) 216 which seems to show that the applicant departed Australia on 30 October 2014 at 7:22 and next arrived in Australia on 12 February 2015 at 8:58.
On 12 January 2015, visas (Skilled – Independent (Subclass 189)) were granted to the persons listed in the online application: Ms Rong and Mr Zhang.
On 8 May 2018, Ms Rong applied online for Australian citizenship by conferral in reliance upon her general eligibility. In that application, her residential address is described as an address at Haymarket, NSW (which I will call the “Haymarket address” but not provide the precise identification of the address in these reasons). The applicant was asked in the text of the online document whether she had had any other residential addresses in the last five years and said that from 12 August 2015 to 22 November 2016 she lived in Hawker Street, Brompton, South Australia, 5007 and from 20 April 2013 to 12 August 2015 she lived at Peninsula Drive, Robina, Queensland, 4226 and from 22 November 2016 to 18 March 2018, she lived at a Chippendale in New South Wales.
Ms Rong was asked to list all of her current email addresses including “work, business, personal, home or other emails” used by her. She listed only one email: ruohan[ABC]. In these reasons, I will call this particular email address the “ABC email”, so as to maintain the anonymity of the email address. For all electronic communication with the Department, Ms Rong nominated the ABC email address. As to the s 28 pledge for the purposes of the Act, Ms Rong nominated Pledge No. 1 (oath with the words “under God”). As to her permanent visa status and details, she cited the Department’s letter of 12 January 2015 confirming the grant of the visas.
The application to become an Australian citizen made under s 21 of the Act was approved on 30 July 2019.
On 25 September 2019, the Department sent Mr Rong an email addressed to the ABC email address attaching a letter of that date under the reference “Notice of intention to consider cancellation of your citizenship approval because you no longer meet the eligibility criteria”. In that letter, the author mistakenly refers to “a number of utility bills” submitted to the Department in support of the Subclass 189 visa application of 10 October 2014 as evidence of a shared address for Ms Rong and Mr Zhang in support of the contention that they were in a genuine de facto relationship. The relevant documents, in fact, are Commonwealth Bank Statements (apart from the Tenancy Agreement and the other statements of affection and references). The Department put its concern in these terms:
It has come to the Department’s attention that you may no longer satisfy the eligibility criteria for Australian citizenship by conferral because, from the information currently available to me, it appears that you are not of good character.
…
The Department has conducted a review of a Skilled – Independent (Subclass 189) visa application made by you on 10 October 2014. You added ZHANG, Jin … to this application as a dependent applicant. This visa was granted on 12 January 2015 without the below adverse information being available to the decision maker (and it is important to note that this adverse information was not available to the Citizenship decision maker at the time they approved your application on 30 July 2019, and has only come to light since).
As supporting evidence for this application, you provided a number of utility bills as proof of your address and the address of Mr Zhang, which in turn acted as purported evidence that you shared an address and were in a genuine de facto relationship with Mr Zhang, and that therefore he was entitled to be on this application as a dependent applicant. These utility bills stated your address as 14‑8 Manor Street EIGHT MILE PLAINS QLD 4113 and 29 Narrooma Street SUNNYBANK QLD 4109.
Information held by the Department suggests that these documents were fraudulently altered. The Document Examination Unit have found that there is evidence of intentional alteration to the generation of the document assessed to a degree that the only reasonable proposition is that the originating document has been fraudulently altered.
This gives rise to the issue of whether you have previously provided false and misleading information to the Department in order to engineer a migration outcome for another person that they may not have been otherwise entitled to, in a manner that would lead to a finding that you are not of good character.
If you have information that shows that this is not the case, please provide the information to the Department as soon as possible.
If it is found that you are not of good character the approval of your citizenship may be cancelled under section 25(2) of the Act.
[emphasis added]
The Department called for a response from Ms Rong within 28 days.
Apart from the misdescription of the bank statements as utility bills, the nub of the matter was that the Department was concerned based on the findings of the Document Examination Unit that the Commonwealth Bank Statements stating Ms Rong’s address as the Eight Mile Plains address and the Sunnybank address had been fraudulently altered and the issue for the Department was whether Ms Rong had previously provided false and misleading information to the Department in order to bring about a migration outcome in favour of Mr Zhang which he was not entitled to and that Ms Rong had acted in a manner in bringing about that outcome that would lead to a finding that she was not of good character.
Ms Rong retained a migration agent, Ms Amy Lee, in Sydney. On 17 October 2019, Ms Lee advised the Department that Ms Rong was in China for a marriage ceremony on 5 November 2019 and on her return a response would be made to the Department’s letter. An extension of time to respond was sought and granted.
On 31 January 2020, Ms Lee sent an email to the Department attaching a range of documents (11 in all). One document is Ms Rong’s statutory declaration of 27 November 2019. Another is a letter of Ms Rong addressed to the Case Officer within the Department dated 20 November 2019.
In the statutory declaration, Ms Rong sets out factual matters concerning the development of her relationship with Mr Zhang. She says that she first met him in September 2011 in Brisbane at a single’s party. He visited her at the Gold Coast. The relationship developed. By Christmas 2012, they were in a de facto relationship. She says that because “we lived in different cities both studying, our de facto relationship was intermittent”. Ms Rong says that in August 2014, she got to know an agent/consultant, Mr Andrew Liu, through her friend “Jacky”, in Sydney. She says that “[s]ince Jin Zhang and I had become firmly committed to each other, we decided to go ahead with the application” (that is, the Skilled, Subclass 189 visa application). Ms Rong says, in the declaration, that she met Mr Liu at his office at 591 George Street, Sydney and “told him that I would like to apply for the application as the main applicant and my de facto husband Jin Zhang as the family dependent”. Ms Rong says that Mr Liu asked her to bring him “as much relationship evidence as I had and then he will lodge the application as soon as possible”. Ms Rong says that “[a] few days later I returned to the office and gave him my and Jin Zhang’s bank statements at the Commonwealth Bank during the period of 2013 to 2014 as well as some photos taken together since that were all the things I could locate in relation to de facto relationship evidence for the application”. Ms Rong says that “[a]fter that I entrusted all my subclass 189 application to Andrew Liu to handle and paid the service fee”. She says that on 10 October 2014, “Andrew Liu lodged the Application to the Department of Immigration and Border Protection”. At paras 17 to 19 of the declaration, she then says this:
(17)… Only by now have I found out that he lodged the application through an immi‑account created by him in my name. The correspondence after that were all replied [to] on my behalf by Andrew Liu who would notify me for additional information and documents provision such as character reference (National Police Check), required health examinations, provision of my certified passport photocopies, etc.
(18)In about January 2015, my subclass 189 was granted. Andrew Liu informed me about that and he said his assistance was completed.
(19)I have never seen Andrew Liu again after that.
[emphasis added]
As to the relationship with Jin Zhang, Ms Rong says in the declaration that “after we … obtained permanent residency, we discussed our future plan and how to develop our career”. Ms Rong says that she wanted to go to Sydney to invest as a financial investor and partner in a coffee shop being operated by a friend. Mr Zhang was “against the idea”. Ms Rong says that they “argued for a few days and in the end, when I saw that he would not agree with my investment anyway, I came to Sydney myself”, in effect, leaving Mr Zhang. In later material, that date was identified as October 2015.
As to the letter of 20 November 2019, Ms Rong said these things to the Department all of which were said by the applicant to be relevant and material to the exercise of the discretion in the event that the decision‑maker took the view that he or she was satisfied that Ms Rong was not of good character:
… I never expected that I would receive a letter like this from Department. I would like to apologise to you for the inconvenience caused for whatever reason it may be. It has been nearly five years since I became a permanent resident in this country during which period I have been living here with great joy, pleasure, honour and expectations.
In the last 59 months or so, I have taken Australia home and explored all possible ways and means to develop my life and career in this country. I have tried to be self‑employed by engaging in business partnerships and since early last year, I have worked at Ray White Maroubra as an administrative clerk to serve the local community. This admin position has given me confidence and a sense of fulfilment. I feel that I am full of vim and vigour and very keen on doing a good job at work to prove my own value in the society.
With this position, I am given the opportunity to be involved with the local community and learn about the Australian way of life as well as the local customs and habits. … My English is improved through Aussie songs and dramas as well as communications with clients over work. I really love this country because of the culture and political system and what is more my husband is here as an Australian citizen so my home is right here deeply rooted.
Talking about my husband Bill, he came here as a [dependent] of new migrants (his parents) at the age of 16 and has fully developed an Australian way of life. He has given me a great push into accustoming myself into the Australian community. I often say to myself how lucky I am to have met Bill who has selflessly offered his spiritual, emotional, financial support and life guidance. …
The reference to “Bill” is an abbreviation. The applicant’s husband is Mr Ziliang Zhong. The applicant married Mr Zhong on 31 July 2019 in Sydney. Ms Rong also submitted a statement from her husband and reference letters.
On 2 January 2020, the delegate cancelled the approval. Although, of course, the role of the Tribunal is to conduct a de novo review of the delegate’s decision and form its own view on all of the evidence before the Tribunal, it remains contextually relevant especially in a case of contended fraudulent conduct, to note the view formed by the delegate and recognise that the view reached by the delegate is likely to have been influential in informing the Tribunal’s decision to affirm. The delegate summarised Ms Rong’s response to the Department’s letter of 25 September 2019 (which the delegate quoted extensively) and said this at AB 17 and 18:
The underlying issue with your Subclass 189 visa application is that the utility bills [bank statements] required alteration at all – that is, if you had genuinely been in a de facto relationship with Mr Zhang and had you genuinely been cohabitating with him, you would have easily been able to provide proof of address documents. …
It appears that at face value, you may have been in some sort of genuine relationship with Mr Zhang at the time but the nature of it is unclear, and at the very least, it appears it may not have been a genuine de facto relationship for the purposes of meeting visa criteria. Even if your independent claims to be a skilled migrant were genuine, Mr Zhang may not have been eligible to have been included in your application, and it appears you did not have the genuine proof of relationship documents required to facilitate his inclusion. You have sought to cast the blame for the alteration of documents onto an unregistered agent, but it appears you were at least somewhat aware that Mr Zhang might not have genuine claims to be included in the application. Your motivations for seeking to still include him are unclear. I find that by you seeking to include him on this application, you have attempted to defraud the Department, and that this weighs against you being of good character.
… I find that the factors in your favour are outweighed by those against you. In light of the above assessment I am satisfied that you are not of good character. Therefore, I may cancel the approval of your application, as per subsection 25(2)(b)(iii) of the Act.
I will now consider whether to exercise my discretion to cancel the approval of your application. In doing so, I have [had] regard to your conduct as well as the information you have provided on 29 November 2019.
I am satisfied that, in general, there is a legislative and community expectation that people who attempt to deceive the Australian Government are not of good character and therefore should not become Australian citizens.
…
Ultimately, I find that all of the factors in your favour are outweighed by the series of false and misleading documents you have provided (directly or indirectly) to the Department, and that it would be incongruent for the Department you have attempted to deceive to now grant you the privilege of Australian citizenship.
[emphasis added]
In the result, the delegate concluded that the reasons for cancelling the applicant’s approval outweighed any reasons for not cancelling the approval, and made the cancellation decision.
Before the Tribunal, the applicant relied on two further statutory declarations made by her: one of 11 February 2020 and another of 27 March 2020.
In the declaration of 11 February 2020, Ms Rong repeats much of what she said in the declaration of 27 November 2019. At para (n), Ms Rong emphasises that she trusted her migration agent, Andrew Liu, who “represented himself to me as an experienced and legitimate professional”. The delegate recognised that Mr Liu was not a registered migration agent. Ms Rong says that she placed her trust in him and that she “did not know about nor did I participate in any fraudulent alteration”. She also says that after receiving the Department’s letter, she made a Freedom of Information request and as a result, “discovered that Andrew had lodged the application through an online immi‑account created by him in my name” and “he dealt with all correspondences with the Department throughout the application and would notify me for additional information or documents such as police check, health check etc”. Ms Rong says that after the grant of the Subclass 189 visas in 2015, she never saw Andrew Liu again and she says that she was neither “directly” nor “indirectly” responsible for the matters about which the Department was concerned and nor was she “careless” as she put her trust in Mr Liu.
Ms Rong also emphasised these matters at paras (z), (aa) and (bb) of the declaration before the Tribunal and does so on appeal as matters about which no finding was made by the Tribunal:
(z)My husband and I cannot be separated. We both experienced a lot of difficulty before being able to come together and fall in love. Due to problems caused by both sides of our family, at one stage things were so hard that I considered giving up. It was only through the love and encouragement of my husband that we made it through. We both treasure our relationship and place it as the most precious and valuable thing in our lives. … I cannot bear to think about what it will be like to be apart from him.
(aa)After my citizenship application was refused [cancelled], it was devastating for me. I have suffered from insomnia every night and visited the doctor for help. My husband has accompanied me and given me crucial mental support and advice. He tells me that no matter what happens, he will be beside me.
(bb)When I worry that I cannot remain in Australia, my husband reassures me …
As to the declaration of 27 March 2020, it too repeats much of what went before, but emphasises these matters:
(2)It is an insult to my character that the Department suspected me of fraudulently changing my address on documents.
(7)I explained earlier that the previous immigration agent made the false changes to the documents in my previous visa application, but the Department thought I was careless. I do not agree with the assumption. At that time I just finished my Bachelor degree and was studying my Masters. I would not question the agent’s expertise in a field that I was completely unfamiliar with. According to my agent’s requirements, I submitted the materials and documents to him and he did the rest of the things for me. In my mind, my visa would not be granted if I made a false application.
(11)As for my previous de‑facto partner, he was my first love. We did a lot of good things together. At the time we were students and we did not have much money. …
(12)However, we had different future plans after graduation. I wanted to go to a big city for a better career, while he wanted a peaceful and enjoyable life at where we were. We had quarrels and we never compromised with each other. Finally we broke up. I went to Sydney alone and I cried every night. I walked out from the shadow around a year later with my friend’s help.
[emphasis added]
At the oral hearing before the Tribunal, the applicant was closely questioned about the documents lodged in support of the visa application. Counsel for the applicant notes these matters from the oral evidence.
First, when shown a printout of her online visa application, Ms Rong said that she had never seen it before; that she had never seen nor used the XYZ email; and nor had she ever lived at the Eight Mile Plains address.
Second, when shown the email of 1 January 2015 to the Department purporting to have been sent by Ms Rong from the XYZ email address, Ms Rong gave evidence that she had not sent the email.
Third, Ms Rong agreed that she had provided a document to Mr Liu entitled “Xue Rong’s Love Story”; that it was her signature at the end of the document; and that she thought Mr Zhang may have provided a similar document entitled “Jin Zhang’s Love Story”.
Fourth, when shown the Tenancy Agreement reciting Ms Rong and Mr Zhang as lessees of the Eight Mile Plains address from 24 October 2013, Ms Rong’s evidence was that she had never seen the document before; that she had never lived at the Eight Mile Plains address as she had been living with Mr Zhang at an apartment in the city of Brisbane; that the signature on the document was not her signature; and that a comparison between the acknowledged signature on the “Love Story” statement and the signature on the Tenancy Agreement shows that they are “very different”.
Fifth, Ms Rong gave evidence that she had provided the Commonwealth Bank Statements for herself and Mr Zhang to Mr Liu, but when taken to the bank statements she expressed surprise at the address on the statements for the Sunnybank address and the Eight Mile Plains address as she said that neither of those addresses had ever been their addresses and that somebody had substituted the addresses on the documents with those two addresses.
Sixth, when asked why Ms Rong would have given altered documents to Mr Liu (counsel for the applicant contends that) Ms Rong expressed “utter confusion” before the Tribunal ultimately suggesting, as to the alterations, “maybe it should be Andrew Liu”.
Seventh, Ms Rong gave evidence that she had tried to contact Mr Liu but had been unsuccessful and that her friend “Jacky” who had made the contact for Ms Rong with Mr Liu had told her that Mr Liu may have returned to China.
Eighth, Ms Rong gave evidence that she had not been in contact with Mr Zhang since they had broken up in October 2015 and that she had been reluctant to pursue him as he now had a new partner and had his own life.
The position put to the Tribunal on behalf of Ms Rong in the Statement of Issues, Facts and Contentions was this (among other matters) was this:
9.Mr. Liu told Ms. Rong that he [would] prepare the application and lodge it for her, and that is what took place.
10.Ms. Rong did not interrogate Mr. Liu on how he had prepared her application, nor asked for a copy of everything that Mr. Liu had submitted on her behalf because she placed her trust in him as the professional and expert.
11.Therefore, Ms. Rong cannot explain the reason behind [Mr Liu’s] fraudulent alteration of documents, as alleged by the Department.
As to the contentions part of the document, the following position was put to the Tribunal (among other matters):
2.Ms. Rong’s placement of trust in her former migration agent Mr. Liu does not make her a person of bad character.
4.Ms. Rong contends that in dealing with her former migration agent Mr. Liu, who handled her subclass 189 visa application, Ms. Rong trusted someone who represented himself to her as a professional and Ms. Rong did as she was instructed by the professional. When Ms. Rong was asked to provide her passport, she did not interrogate the migration agent and similarly when she was asked to hand over evidence of her relationship with Mr. Zhang, she did not interrogate the migration agent and this was behaviour expected of a reasonable Australian person.
5.What happened to Ms. Rong due to her former migration agent’s conduct could have happened to any moral and law abiding Australian person.
The ultimate position put to the Tribunal on behalf of the Minister in the context of all of the facts just described many of which are recited in the Statement of Facts Issues and Contentions on behalf of the Minister was this:
45.In summary, in all the circumstances outlined above, the [Minister] contends that it is entirely implausible that [Ms Rong] was not aware that the documents she provided to the Department in support of the nature of her relationship with Mr. Zhang were fraudulently altered. Further, it is entirely implausible that she did not personally provide those documents to the Department. The [Minister] contends that on the available information, and especially in the absence of any persuasive or corroborating alternative evidence, the Tribunal should be satisfied that [Ms Rong] knowingly and wilfully provided fraudulently altered documents to mislead the Department as to the nature of her relationship with the dependent on her visa application. This conduct should have a significant negative bearing on the assessment of her character.
Having expressed that view, the Minister then made submissions and contentions to the Tribunal about mitigating factors.
The Tribunal’s decision
At paras 1 to 13, the Tribunal notes aspects of the facts already mentioned in these reasons. From para 14, the Tribunal addresses the contentions and evidence put to it. At para 14, the Tribunal begins by noting that what is put to it by the Minister is that “Ms Rong fraudulently submitted altered bank statements in support of the 2014 visa application”. That contention could only be understood as a contention that Ms Rong submitted the altered bank statements knowing them to recite incorrect address details so as to support the factual claims in the application that she and Mr Zhang were in a de facto relationship and that they “both resided together at the Sunnybank address and the Eight Mile Plains address”: para 14. When the Tribunal at para 14 describes the Minister’s submission as Ms Rong having fraudulently submitted altered bank statements, there is no precision at this point of the reasoning of whether Ms Rong is said to have submitted the altered bank statements to the Department in support of the visa application or to Mr Liu for that purpose. Either way, the contention is that Ms Rong fraudulently caused altered bank statements to be produced in support of the visa application.
At para 15, the Tribunal notes that Ms Rong accepts that the bank statements were altered but denies any wrongdoing on her part. At para 15, the Tribunal also notes Ms Rong’s contention that she believes that Mr Liu was “responsible” for the alterations. At para 15, the Tribunal notes that Ms Rong denies any knowledge or involvement in any fraudulent alteration of the documents.
At para 16, the Tribunal notes that in her statutory declaration, Ms Rong claims that she provided Mr Liu with information and documentation as requested by him and that he was “responsible for lodgement of the 2014 visa application and supporting material to the Department”.
At paras 17 to 23, the Tribunal notes aspects of the evidence of Ms Rong. At para 17, the Tribunal notes Ms Rong’s evidence that she recalled that her relationship with Mr Zhang began towards the end of 2011 and that she said that at that time she lived on the Gold Coast, had done so since 2009 and continued residing there until 2013. The visa application recites that between 15 February 2010 and 21 October 2011, Ms Rong was undertaking a Bachelor of Business course of study at the Gold Coast Campus of Southern Cross University.
At para 18, the Tribunal notes Ms Rong’s evidence that she met Mr Zhang when he was studying in Brisbane. It notes that Ms Rong recalled that she was “living with friends in a share house and [Mr Zhang] would come and stay at her place”.
At para 19, the Tribunal notes Ms Rong’s evidence that she moved from the Gold Coast to a serviced apartment in Brisbane and observes that Ms Rong “could not remember exactly when nor was she able to recall the address”. The Tribunal notes that in questioning Ms Rong she “estimated that it was in 2013 or 2014 when she moved to Brisbane”. The visa application recites that her de facto relationship status with Mr Zhang began on 2 April 2013.
At para 20, the Tribunal notes that when Ms Rong was asked when she and Mr Zhang first shared an address together, Ms Rong “was unable to recall” and that “she was also unable to recall the address that they shared”.
As to the retention of the services of Mr Liu, the Tribunal notes that Ms Rong explained that she had been introduced to him by her friend “Jacky”; that Ms Rong trusted him due to an introduction through a mutual friend; that she and Mr Zhang had gone to meet Mr Liu; that she “confirmed” that she had provided documents including bank statements to Mr Liu in support of her application but that “the documents she provided were unaltered when she gave them to Mr Liu” (para 21); and that she claims to have paid Mr Liu $12,000 in cash for his services.
At para 23, the Tribunal notes Ms Rong’s evidence that she and Mr Zhang separated as Ms Rong wanted to relocate to Sydney.
At paras 28 to 32, the Tribunal considers the meaning to be attributed to the notion of a person being of “good character” for the purposes of s 21(2)(h) of the Act (the criterion within the “general eligibility” criteria, and in turn, s 21(1) and s 24 of the Act), although there is no express reference to the section of the Act under which the delegate acted and in respect of which the Tribunal was undertaking a de novo review. The Tribunal at this point in its reasoning is seeking to identify the essential conception reflected in the words “good character” used in their ordinary sense, the term not being defined in the Act.
As earlier mentioned, s 21(2)(h) is a criterion that requires that a person is of good character at the time of the Minister’s decision on the application to become an Australian citizen. Section 25(2)(b)(iii) applies if the Minister is satisfied, at the time the Minister proposes to cancel the approval of the citizenship application, that the person is not of good character. The question for the Tribunal was whether it could be satisfied at the relevant time for the purposes of s 25(2)(b)(iii) that Ms Rong is “not of good character”.
In examining the concepts that might be comprehended by the term “good character”, the Tribunal cited the observation of Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (“Irving”) at 431‑432 in these terms:
Unless the terms of the Act and Regulations require some other meaning to be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review subjective public opinion [citing authorities]. A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character [citing authorities]. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
Emphasis was placed upon the notion of “enduring moral qualities of a person”. The Tribunal also had regard to a number of documents which it describes as the “Department’s official guides to decision makers”. One is a document described as the “Australian Citizenship [Policy Statement]”. Another is described as “CPI 15 Assessing Good Character under the Citizenship Act” (“CPI 15”). At para 31, the Tribunal quotes a passage from cl 4.3 of CPI 15. Clause 4.3 of CPI 15 seeks to define, in the absence of a definition in the Act, the term “good character”. It quotes the passage from Irving quoted above and attributes the following three characteristics to the notion of “enduring moral qualities of a person”:
•characteristics which have endured over a long period of time;
•distinguishing right from wrong; and
•behaving in an ethical manner, conforming to the rules and values of Australian society.
Clause 4.3 goes on to observe that the “good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character”. The passage quoted by the Tribunal in cl 4.3 is this:
A decision‑maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
The Tribunal observes at para 33 that it was guided by these considerations at [70] to [74] of these reasons in determining whether Ms Rong meets the good character requirement for Australian citizenship.
The statutory question before the Tribunal in the conduct of its de novo review of the delegate’s decision was whether it could be satisfied that each of the factors at s 25(1)(a) and (b) were met. The fact at s 25(1)(a) was plainly met and thus question was whether, relevantly here, the “first situation” contemplated by s 25(2)(b)(iii) applied. If both factors at s 25(1)(a) and (b) were met, s 25(1) was engaged enlivening the power conferred by s 25(1) to be exercised (subject to the considerations mentioned later in these reasons).
As to the Tribunal’s findings, the Tribunal, at para 34, observed that other than Ms Rong’s “verbal account of the engagement of Mr Liu”, there is no evidence before the Tribunal which either supports or corroborates her contention that Mr Liu altered, and then submitted to the Department, the fraudulent documents on her behalf.
At para 35, the Tribunal finds that there is no record in evidence before the Tribunal of Mr Liu ever having been engaged by Ms Rong or of Mr Liu having acted on behalf of Ms Rong in relation to the visa application. The Tribunal notes that “Ms Rong has provided no written record of her interactions with Mr Liu or evidence that she paid him $12,000”.
At para 36, the Tribunal notes that when Ms Rong was asked to explain why Mr Liu would alter the documents to fabricate documentary support for a de facto relationship between Ms Rong and Mr Zhang, Ms Rong suggested that Mr Liu may have sought to build his reputation by securing a favourable outcome in such a matter. The Tribunal found such “speculation” (as the Tribunal described it), or that hypothesis, “not compelling”. In other words, the Tribunal could not be satisfied that the speculation or hypothesis was an explanation for the submission of the altered documents to the Department. Since that explanation was not found to be compelling, the Tribunal then observed that “the submission of fraudulent documents” (and at this point it is not clear whether the Tribunal means the submission of the fraudulent documents to the Department by Ms Rong on the basis that no record exists of Ms Rong ever having retained Mr Liu, or whether the Tribunal has in mind the submission of fraudulent documents by Ms Rong to Mr Liu for submission to the Department), “supports [the Minister’s] contention that Ms Rong was not in a genuine de facto relationship with Mr Zhang”. At this point in the reasoning, the Tribunal seems to have a view that Ms Rong, whether she submitted the fraudulent documents to the Department or to Mr Liu, engaged in the act of submitting the documents bearing the altered information.
At para 37, the Tribunal seeks to test the position (that is, its conclusion at para 36) and reasons in the following way. It says that Ms Rong’s account of how the fraudulent documents were submitted is “undermined” by the fact that they were sent from the same email address as the email address recorded in the Tenancy Agreement dated 24 October 2013 of which Ms Rong and Mr Zhang were recorded as the tenants. The particular email address so recorded is the XYZ email. The Tribunal observed that Ms Rong denied that this was her email address, but rejected her evidence on the footing that the same email address as recorded in the Tenancy Agreement was used to communicate information to the Department in relation to the visa application.
If Mr Liu had been engaged by Ms Rong; and he created an immi‑account; and he established the XYZ email account that Ms Rong denied as her email account; and altered the documents including the Tenancy Agreement (or created a tenancy agreement), consistency between the email address in the false tenancy document and the email address presumably created by Mr Liu (on this hypothesis) for the purposes of the application, would not, in such a scenario, undermine the position adopted by Ms Rong that the XYZ email was not her email and that she had not submitted altered documents to the Department.
The underlying question was whether the Tribunal was willing to accept the essential evidence of Ms Rong on the central contentions.
The Tribunal’s ultimate conclusion at para 38 is that in light of the considerations at paras 34 to 37, and the absence of witness statements or documentary material which casts doubt on the matters of concern at paras 34 to 37, “the Tribunal is satisfied that Ms Rong was personally involved in providing fraudulent documents to the Department in support of the 2014 visa application”.
That conclusion seems to have two features to it.
First, Ms Rong was, herself, engaged, personally, in providing false documents in support of the visa application.
Second, she was personally involved in providing them “to the Department”.
In other words, the Tribunal is expressing a view that it is confirmed in its view that in the absence of any documentary evidence concerning Ms Rong’s engagement with Mr Liu, the Tribunal is not willing to act on the oral evidence of Ms Rong.
Next, the Tribunal considered whether Ms Rong’s personal involvement in the submission of fraudulent documents to the Department in support of the 2014 visa application, rendered her a person not of “good character”.
As to that matter, the Tribunal acted on the footing that “an applicant of good character” (and the Tribunal has in mind in making these observations, as it had in mind at para 28 of its reasons, s 21(2)(h) of the Act concerning an application to become an Australian citizen), “would respect and abide by the law and be truthful” and not practice either “deception” or “fraud” in their dealings with the Australian government.
The Tribunal observes that cl 4.4 of CPI 15 provides that the provision of false personal information during visa and citizenship applications is not something that a person of “good character” would do. At para 41, the Tribunal reached the following conclusion:
41.It has been over five years since the fraudulent documents were submitted, and normally this would weigh in Ms Rong’s favour. However, she has maintained her implausible explanation [adopting the submission of the Minister] and claimed that the cancellation of her citizenship application is “an insult to her character”. In doing so, she has demonstrated that the passage of time has not made her more inclined to observe the truth when dealing with government officials.
At para 41, taken together with para 42, the Tribunal is making a present day (at the date of the review of the delegate’s decision) assessment, having regard to the circumstances over the five year period since the conduct in issue, of whether Ms Rong “currently meets the definition of ‘good character’”. It makes a finding that it is satisfied that Ms Rong is not a person of good character because she has maintained her implausible explanation and claims that a contention to the contrary is an insult to her character. That conduct suggested to the Tribunal that the passage of time has not made Ms Rong more inclined (presumably than before) to observe the truth when dealing with government officials.
Although the statutory elements of s 25 of the Act have not been examined by the decision‑maker in the course of the reasons and the decision of the Tribunal is not framed in the context of the integers of s 25(2)(b)(iii) of the Act, it seems that the Tribunal was asking itself whether it could be satisfied at the time of the proposed cancellation of the approval whether Ms Rong was “not of good character” having regard to its findings on the relevant events and its understanding of the conception of good character as that conception might apply to s 25(2)(b)(iii).
However, all of these matters go to the conclusion the Tribunal reached concerning whether on the facts Ms Rong, at the relevant time, is “not of good character”. The applicant contends that the Tribunal did not then, having reached a conclusion about the “first situation” engage with s 25(1) of the Act as it was required to do, it is said.
The grounds of the application
By Ground 1, the applicant contends that the “most striking” element of the Tribunal’s decision is that it did not make a finding concerning whether, as contended by the Minister, Ms Rong sought to mislead the Department as to the nature of her relationship with Mr Zhang. The applicant describes the Tribunal as being “remarkably coy” on the issue of whether the applicant “knew” that the documents were fraudulent when given to the Department. The applicant contends that the highest point to which the findings rise can be seen at para 38 that “Ms Rong was personally involved in providing fraudulent documents to the Department in support of the 2014 visa application”. The applicant contends that a finding of being “personally involved in providing” fraudulent documents fails to identify, precisely, the state of the applicant’s knowledge.
The state of the applicant’s knowledge the Tribunal had in mind can be seen from para 39 in the context of the discussion of the conception of “good character”. The Tribunal regarded it as relevant to note that one aspect of a person exhibiting “good character” is that such a person would not practice “deception” or “fraud” in their dealings with the Australian government. The Tribunal seemed to proceed on the footing that notions of deception and fraud were present in the conduct of Ms Rong in the dealings with the Department.
As earlier mentioned at [61] of these reasons, it seems clear enough that the Tribunal well understood that the review of the delegate’s decision engaged a question of whether Ms Rong had engaged in conduct of fraudulently submitting altered bank statements in support of the 2014 visa application, that is, the submission of evidence thought to be probative of a genuine de facto relationship with Mr Zhang as from 2 April 2013 as recited in the online visa application.
In that context, a question arose about whether Ms Rong’s oral evidence of engaging with Mr Liu, otherwise unsupported (by any confirmatory email or emails passing between Ms Rong and Mr Liu; any document relating to payment of the $12,000 fee; a printout showing a withdrawal of such an amount if the payment was in cash; communication by email or otherwise of instructions to Mr Liu; communications about the outcome of the application; any document from Mr Liu on his letterhead; any email from Mr Liu showing a sign‑off block; or, in short, anything at all), could be accepted as an explanation of the alterations to the bank statements as put to the Department. The Tribunal rejected Ms Rong’s hypothesis. Essentially, the Tribunal could not be satisfied about whether Mr Liu had any role at all in these matters.
The finding that Ms Rong was “personally involved” in providing fraudulent documents to the Department in support of the 2014 visa application must be understood in the context just described. It is a finding that having regard to the rejection of Ms Rong’s “speculation” or hypothesis described at para 36 of the Tribunal’s reasons, Ms Rong was personally involved in putting forward, to the Department, documents said to be correct and probative of a genuine de facto relationship with Mr Zhang that were, in fact, false and untrue. In other words, Mr Liu did not alter the bank statements for submission to the Department so as to “build a reputation for himself” of being able to secure a “possible outcome” for Ms Rong and Mr Zhang, but rather someone else altered the bank statements and the person who was “personally involved” in doing so, that is, in submitting false documents to the Department so as to invite the Department to conclude that Ms Rong and Mr Zhang were in a de facto relationship, was Ms Rong.
In that sense, the findings are not “remarkably coy” when the decision is read in context against the background of all the material, the contentions put to the Tribunal and the concerns noted by the Tribunal about Ms Rong’s inability to recall the vitally important matters unable to be recalled as described as paras 19 and 20 of the decision.
As to the XYZ email, Ms Rong says that the email address was not her email address. It is unfortunate that no searches were put into evidence (if done) before the Tribunal showing the registration details relating to the email address, date of registration, registered owner and related details, which are searchable.
Notwithstanding all of these considerations, the fact remains that the essential contention put to the Tribunal was that Ms Rong engaged in fraudulent conduct. An allegation of fraud is one of the most serious allegations that can be made against a person. Thus, it is necessary to identify, and expressly and plainly make findings of fact about, the precise contended conduct. If the Tribunal’s view was, as it seems to be, that Ms Rong, consciously and intentionally engaged in the conduct of altering the address details on the bank statements so as to bring into existence fraudulent documents to then be submitted to the Department (whether by her or by an agent) as contended probative evidence of a de facto relationship from 2 April 2013 with Mr Zhang, that finding ought to have been quite precisely made.
If the view of the Tribunal was that Ms Rong submitted the fraudulent documents to the Department, so engineering that outcome, that finding ought to have been made also.
To the extent that the Tribunal was able to make a finding concerning whether Mr Liu was or was not engaged by Ms Rong, findings about that matter ought to have been made.
If the Tribunal disbelieved Ms Rong, as it seems to have done, it ought to have expressed its findings about that matter making precisely plain that it was rejecting her evidence.
For these reasons, although many of the positions taken by the Tribunal are capable of rational analysis, I am satisfied that the fact‑finding in a case involving express allegations of fraud needed to be precise, issue‑related and, anecdotally, made as clear as a bell. Support for precision in fact‑finding in circumstances of this kind can analogically be seen in the observations of French J at [74] in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at 383.
In that sense, the Tribunal fell into jurisdictional error in the context of the particular fact‑finding required in a case of this kind.
Ground 1 of the appeal is, in substance, the critical matter involved in the application.
I will return to Ground 2 shortly.
As to Ground 3, the earlier discussion of the Tribunal’s findings reveal that the Tribunal regarded the finding that Ms Rong was not of good character to be determinative of the question arising under s 25(1) of the Act. The scope of the power conferred on the repository of the power is accurately described as a discretionary power to cancel an approval, given to a person under s 24 of the Act. The discretionary power is engaged, if enlivened, by the conjunction of the two factors at s 25(1)(a) and (b) being met. Once engaged, the Minister may, by writing, cancel the relevant approval. Throughout the Act, the Statute draws a clear distinction between steps that “must” be taken if the relevant preconditions have occurred and steps that “may” be taken. As to the use of the mandatory term “must” in Division 2 of the Act (being the relevant Division for the purposes of these proceedings), see: ss 22A(1B)(9), 23A(1), 24(1), 24(2), 24(3), 24(4), 24(4A), 24(5), 24(6) and 24(7). As to the use of the term “may”, see ss 21(1), 22(4A), 22(5), 22(5A), 22(6), 22(9), 22(11), 22A(1A), 22(1B), 22(3), 22(4), 22(5), 22(8), 22B(1A), 22B(3), 22B(4), 22B(5), 22B(6), 22B(8), 22C(1), 22C(2), 22C(3), 24(2), 24(4C), 24(5), 24(6) and 25(1).
If the Parliament had intended the Minister to be bound to cancel an approval, upon the power being engaged, clearly enough, it would, as it did elsewhere in Division 2 of Part 2 of the Act, use the word “must” not “may”. The word “may” conveys a discretion to take the statutory step, not an obligation to do so.
Once the discretionary power conferred on the repository of the power is engaged by reason of the two factors at s 25(1)(a) and (b) being met, the discretionary power to cancel arises. There are no factors mandated by s 25(1) which condition the exercise of the discretion, once engaged, in the sense contemplated by Minister for Aboriginal Affairs v Peko‑Wallsend Limited (1986) 162 CLR 24. The factors to be taken into account in the relevant case would no doubt depend upon the circumstances of the person whose approval is to be cancelled and the features of that person’s character bearing upon the exercise of the discretion and matters related to the period over which the conduct occurred and potentially other factors. It may be that the gravity of the conduct is almost determinative.
In this case, the Tribunal gave no consideration to any question of whether the discretion ought to be exercised for or against cancelling the approval. The Tribunal began to approach that topic when, at para 41, it began to reflect upon the circumstance that an intervening period of five years had occurred which would require it to “weigh” factors that might be favourable or unfavourable to Ms Rong. However, those matters were all ultimately addressed in the context of deciding whether the Tribunal could be satisfied about the factual question arising under the “first situation” of whether Ms Rong is a person “not of good character”. It is doubtful, however, that the Tribunal ever turned its mind expressly to the nature of the power in s 25(1) at all, as at no point does the decision‑maker ever refer to the statutory power actually being exercised.
Fundamentally, in that sense, in a case centred upon allegations of fraud said to enliven a power to cancel a person’s approval for the conferral of Australian citizenship, the decision‑maker undertaking the review of the delegate’s decision should, I respectfully suggest, keep clearly and firmly in mind the source and scope of the power being exercised and the statutory integers, and expressly address in the reasons, the text of the power and the particular application of the integers to the facts as found. As already mentioned, in a case of this kind, it is important to make findings of fact which are clear and precise and in the context of those findings, the statutory integers would then be applied. I also respectfully suggest that in a case where fraudulent conduct is asserted, it would be necessary to examine the factual foundation for the claims and the evidence in a little more detail than that given to the consideration of the evidence and claims in this case, effectively seven short paragraphs at paras 34 to 39 and para 41.
For these reasons, I am satisfied that the Tribunal fell into jurisdictional error by failing to engage with s 25(1) of the Act once it was satisfied that s 25(1) was engaged because the factors at s 25(1)(a) and (b) were met.
Returning to Ground 2, before engaging with whether a contention is undermined or not by the interrelation between the particular documents said to give rise to the conclusion, it would be necessary to make findings about whether particular documents were false or not, including the Tenancy Agreement.
For these reasons, the decision of the Tribunal is to be quashed and the matter remitted to the Tribunal for determination according to law.
I certify that the preceding one‑hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood. Associate:
Dated: 9 June 2022
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
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Administrative Law
Legal Concepts
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Jurisdiction
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Fraudulent Conduct
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Administrative Review
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Grounds for Cancellation of Citizenship
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Fraudulent Submission of Documents
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Natural Justice & Procedural Fairness
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