Shu v MIMIA
[2003] FCA 791
•23 JUNE 2003
FEDERAL COURT OF AUSTRALIA
Shu v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 791MIGRATION – skilled-independent visa – decision to cancel visa based on ‘bogus document’ – whether decision maker applied correct test in considering whether document was a ‘bogus document’
MIGRATION – decision of delegate of Minister – where jurisdictional error – whether a ‘primary decision’ – whether capable of review by Federal Court
WORDS AND PHRASES – ‘bogus document’
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 97, 97A, 101, 103, 104, 107, 108, 109, 114, 474, 475A, 476, 494A, 494B, 494C, Pt 2, Div 3, subdiv C
Migration Regulations 1994 (Cth) reg 2.41Immigration & Multicultural Affairs, Minister for v Yusuf (2001) 206 CLR 323 cited
Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 citedKAI FENG SHU & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N522 OF 2003
EMMETT J
23 JUNE 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N522 OF 2003
BETWEEN:
KAI FENG SHU
FIRST APPLICANTXINGRONG WANG
SECOND APPLICANTGUANXIONG SHU
THIRD APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
23 JUNE 2003
WHERE MADE:
SYDNEY
THE COURT:
grants leave to the applicants to amend the statement of claim;
grants leave to the respondent to file in Court a defence;
dispenses with the requirement that the defence be verified;
orders that the decision of the respondent under s 109 of the Migration Act 1958 (Cth) made on 25 February 2003 to cancel the visas granted to the applicants on 4 December 2001 be set aside;
5. orders that the respondent pay the applicants’ costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N522 OF 2003
BETWEEN:
KAI FENG SHU
FIRST APPLICANTXINGRONG WANG
SECOND APPLICANTGUANXIONG SHU
THIRD APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
EMMETT J
DATE:
23 JUNE 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
I have before me an application brought under s 39B of the Judiciary Act 1903 (Cth) for relief in respect of a decision of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), made on 25 February 2003 to cancel visas that had previously been granted under the Migration Act 1958 (Cth) (‘the Act’) to the applicants. The first applicant is a 32 year old citizen of the Peoples Republic of China, the second applicant is his wife, and the third applicant is his son.
By an application received by the Minister on 28 March 2001, the first applicant applied for a visa, class BN (Skilled – Independent). Information was supplied to the Minister in support of the application, including a reference from the Director of Computer Centre, China Northwest Airlines dated 26 February 2001. On 26 July 2001, the relevant processing centre of the Minister’s department received a letter from the first applicant referring to his application for ‘Independent Skilled Migration’ to Australia. The letter relevantly said:
‘1. I just finished my medical examinations and x-ray check. Enclosed are the sealed medical and radiological examination forms, x-ray film and other supporting documentation by the hospital in Wollongong.
2. My address is changed to following:
Unit 5, No 94 Mt Keira Road
Mt Keira, Wollongong
NSW 2500Australia.
I already notified my changing address to DIMA Australian Embassy, Beijing, BUT I don’t know why they haven’t updated this information.
…
I am looking forward to hearing from your office soon. If there are any questions, please don’t hesitate to contact with me.’
By email communication to an officer of the Minister's department on 1 November 2001, the first applicant notified that officer that he had finished his study at the University of Wollongong, that he planned to return to China on 21 November and that he was eager to know the result of his application for a visa before he left Australia.
A response came by email on the same day saying relevantly:
‘You must be outside Australia for the visa to be granted. Your health clearance has not yet been received from Health Assessment Service and your application will not be processed further until we receive the clearance.’ (Emphasis original).
On 2 November 2001, that officer wrote to the first applicant at his address in Mt Keira under the heading ‘Pre-Visa Grant Advice For Applicants in Visa Class 136’:
‘I refer to your family’s application for Australian visa class BN, subclass 136, Skilled Independent, which was lodged on 28/03/01.
I am pleased to inform you that your application for migration to Australia is likely to be successful subject to the decision maker being satisfied that you are entitled to a visa.
The pre-grant letter covers the following persons:
·Kai Feng Shu
·Xing Rong Wong
·Guan Xiang Shu
Before we can decide whether or not you are entitled to a visa, you and each person included in the application are required to notify any material change in your circumstances since your application was made.
…
You, and each member of your family 18 years or older who expects to migrate with you if visas are eventually granted, must individually notify any material change in circumstances.
…
Settlement Assistance Information
Enclosed is the Settlement Assistance Information (Form 886) which should be completed and returned to this office. The information is collected to assist in planning better services, such as health and education.
It is intended that, if granted, the initial entry date will be until 26 June 2002 and you must first arrive in Australia before that date. The validity of the visa, once granted, cannot be extended.’
In response to that letter, the first applicant completed and sent to the Minister's department a Form 1022 headed ‘Notification of Changes in Circumstances’. It contained the same Mt Keira address for himself, his wife and child. That document bears the date 7 November 2001. Sent to the department at the same was a Form 886 entitled ‘Settlement information’. In response to the question ‘Where in Australia do you and your family plan to settle?’, the applicant inserted ‘Brisbane’ in the box for ‘Town or Suburb’. No other details were given.
On 16 November 2001, the first applicant forwarded a memorandum to the department indicating his proposed itinerary in travelling from Sydney to Beijing via Singapore and return to Sydney. The applicant departed Australia on 20 November 2001.
On 4 December 2001, an officer in the Minister’s department wrote to the first applicant at the Mt Keira address in the following relevant terms:
‘I refer to your family’s application for Australian visa class BN, subclass 136, Skilled Independent, and am pleased to advise that on 4 December 2001, a decision was taken to grant you those visas.
The visas were granted with the condition that first entry to Australia is made no later than 1 March 2002.
…
Change of circumstances
You are reminded that you must continue to notify the Department of Immigration and Multicultural Affairs if your circumstances change so that any answer given in your application for, or any information given in relation to your application is no longer correct. The obligation to notify is in respect of changes of circumstances before you are given permission to leave the airport or seaport on arrival in Australia.’
The first applicant returned to Australia on 23 December 2001 and the second and third applicants arrived in Australia, apparently for the first time, on 25 December 2001. It is not clear where they then resided. It is common ground, however, that they did not reside at the Mt Keira address.
On 5 April 2002, a delegate of the Minister sent to the first applicant at the Mt Keira address a document headed ‘Notice of Intention to Cancel under section 109 of the Migration Act 1958’. No response was received to that letter. On 6 January 2003, a delegate of the Minister wrote again to the applicant at the Mt Keira address. The document was again headed ‘Notice of Intention to Cancel under section 109 of the Migration Act 1958’. The letter went on relevantly to say as follows:
‘It has come to the Department’s attention that you may not have complied with section 103 of the Migration Act 1958 which state(s):
103 A non-citizen must not give an officer, the Minister, or a tribunal performing a functional purpose under this Act, a bogus document or cause such a document to be so given.
Upon the basis of information obtained by the Department, it is alleged that you submitted to DIMIA a false work reference from China Northwest Airlines in support of your subclass 136 Skilled Migration application.
It appears that you have failed to comply with section 103 of the Act.
If you did not comply with section 103 your visa may be cancelled. It does not matter whether you deliberately or inadvertently did not comply.
The Migration Act 1958 gives you the opportunity to comment on this/these possible ground(s) for cancellation and to give a written answer why your visa should not be cancelled. Your answer should say:
-why you think you have complied, or why you have not complied, with section 103; and
-why you think your visa should not be cancelled (even if you think you have complied).
You must provide your response within 14 days from the date of this letter.
…
The Migration Act 1958 requires me to advise you of the effect of section 112. I am also obliged to inform you that your obligations under section 104 or 105 continue.’ (Emphasis original).
There was no response to that communication.
On 25 February 2003, the first and second applicants were notified separately of the cancellation of their visas on that date. The letter addressed to the first applicant expressed it to be ‘Notification of Cancellation under s 109 of the Migration Act 1958’, and relevantly said:
‘On 06 January 2003 the Department notified you of its intention to cancel your visa. You did not respond to this notice.
The Department has decided that you did not comply with section 103 of the Act. You provided bogus documents to a DIMIA officer.
The reasons not to cancel your visa were considered insufficient to outweigh the grounds for cancellation. Accordingly, your visa was cancelled on 25 February 2003.
A copy of the full decision record is attached.’
That notification was also addressed to the Mt Keira address.
The first applicant did not receive any of the letters of 5 April 2002, 6 January 2003 or 25 February 2003. The first applicant first found out about the cancellation of the visas when he left Australia some time thereafter. Upon seeking to board an aircraft to return to Australia, he was informed that his visa had been cancelled.
The decision record of the Minister’s delegate, after referring to personal particulars of the applicants, contained the following under the heading ‘Consideration of Visa Cancellation’:
‘Evidence of Non-Compliance
Mr Shu lodged a subclass 136 permanent residency visa application on 28 March 2001. An employment reference from China Northwest Airlines dated 26 February 2001 was submitted as part of that application. A validity check conducted by the Australian Embassy Beijing found that the employment reference is bogus.’
The terms of s 97 were then set out in the decision record which went on as follows:
‘The employment reference supplied by Mr Shu states that “Mr Shu Kai Feng had been working as Computer Engineer (sic) in (the) Computer Centre of China Northwest Airlines”. It further states that he was “mainly responsible for China Civil Aviation CRS (Computer Reservation Systems) and to DCS (Departure Control Systems) systems maintenance, Web application development, WebPages (sic) design and applications programming”.
Enquiries conducted by the Australian Embassy Beijing have revealed that Mr Shu did not work at the Computer Centre but rather at the Transport International Airport and was responsible for passenger formalities before aircraft boarding. Duties performed by Mr Shu did not involve any computer programming nor technical involvement with computer systems.
I therefore find that Mr Shu has provided a document that is false and misleading.
I am hence satisfied that Mr Shu has not complied with s 103 of the Act.’
Then, under the heading ‘Part C: Decision about Non-Compliance (S 108)’ and the sub heading ‘Reasons’, the following appears:
‘Mr Shu presented a document that purports to be a genuine employment reference from China Northwest Airlines in support of his application for a subclass 136 visa. Checks conducted by the Australian Embassy Beijing have confirmed that the content of this document is not genuine.
Mr Shu also supplied two further documents, a “Detailed Duty Statement” and a Resume, in which these false and misleading claims are repeated.’
Under the heading ‘Assessment’, the following appears:
‘My assessment of the visa holder’s response and all the prescribed circumstances as set out in regulation 2.41 is as follows:
(a)the correct information (reg 2.41(a))
Mr Shu has supplied a bogus document to DIMIA in the form of an employment reference from China Northwest Airlines claiming that Mr Shu worked as a computer engineer. It was discovered that Mr Shu actually worked in the Transport Airport Terminal in a customer service role and not in the Computer Centre.
(b)the content of the genuine document (if any) (reg 2.41(b))
No genuine document has been presented.
(c)the likely effect of a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document (reg 2.41(c))
If Mr Shu had not submitted a false and misleading document with his subclass 136 migration application, this cancellation action would not have been initiated.’
The decision recorded that Mr Shu had not responded to the ‘Notice of Intent to Cancel’ his visa and that the decision maker had decided to cancel Mr Shu’s visa.
THE RELEVANT PROVISIONS OF THE ACT
Subdivision C of Div 3 of Pt 2 of the Act has the heading ‘Visas based on incorrect information may be cancelled’. Section 101 provides that a non-citizen must fill in his or her application form in a way that no incorrect answers are given. Section 103 provides that a non-citizen must not give an officer, the Minister or a tribunal performing a function or purpose under the Act a bogus document or cause such a document to be so given.
The term ‘bogus document’ is defined in s 97 as meaning, in relation to a person, a document
‘… that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.’
Section 107(1) of the Act relevantly provides as follows:
‘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 [or] … 103 …, the Minister may give the holder a notice:
(a)giving particulars of the possible non-compliance; and
(b)stating that … the holder may give the Minister a written response to the notice …; and
(c)stating that the Minister will consider cancelling the visa [within a certain period]; and
(d)setting out the effect of [other provisions of subdiv C]; and
(e)informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice …; and
(f)requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non-compliance by the holder – to tell the Minister the changed address.’
Under s 108, the Minister is required to consider any response given by a visa holder in the way required by s 107(1)(b) and to decide whether there was non-compliance by the visa holder in the way described in the notice. Under section 109(1), the Minister, after deciding under s 108 that there was non-compliance by the holder of the visa, considering any response to the notice, and having regard to any prescribed circumstances, may cancel the visa.
Section 97A, which is also within subdiv C, provides that subdiv C is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Section 97A(2) provides:
‘Sections 494A to 494D, in so far as they relate to [subdiv C] are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.’
Section 494A provides:
‘If:
(a)a provision of the Act or the regulations requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i)by one of the methods specified in section 494B; or
(ii)by a method prescribed for the purpose of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section.’
Section 494B(4) provides that one method consists of the Minister dating the document and then dispatching it within three working days of the date of the document by pre-paid post to the last address for service provided to the Minister by the recipient or the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents. Section 494C(4) provides that if the Minister gives a document to a person by the method in s 494B(4), the person is taken to have received the document, if the document was dispatched from a place in Australia, to an address in Australia, seven working days after the date of the document.
GROUNDS OF REVIEW
There are four grounds set out in an amended statement of claim. Those grounds were developed in the course of argument. Those grounds are as follows:
‘1. The document entitled “Notice of Intention to Cancel” under s 109 of the … Act …, sent to the First Applicant on or about 6 January 2003, did not comply with the mandatory requirements of s 107 of the Act in that it did not include the information referred to in s 107(1)(f);
2.It was a condition of exercise of the power under s 109 that the Respondent take steps to discover the First Applicant’s actual residential or postal address so as to effect service of the notice and give the Applicant a real opportunity to respond;
3.The decision maker failed to take into account the matter prescribed by reg 2.41(c) of the Migration Regulations;
4.The decision maker applied a wrong test in determining whether the First Applicant had breached s 103 of the Act.’
I shall deal with each of those grounds separately.
GROUND 1
It is common ground that the notice of 6 January 2003 did not comply with the requirement of s 107(1)(f). The effect of that provision is that the Minister may give the holder of a visa a notice requiring the holder:
·to tell the Minister the address at which the holder is living; and
·if the holder changes the address before the Minister notifies the holder of the Minister’s decision, to tell the Minister the changed address.
The reason for requiring that a notice require the holder to give that information is obscure. The provisions of par (f) of s 107(1) must be contrasted with the provisions of par (a) to par (e) of that section. Each of those paragraphs requires that a notice contain information for the benefit of the recipient.
Counsel for the applicants was unable to point to any requirement of the Act or the Migration Regulations 1994 (Cth) requiring a holder of a visa to tell the Minister the address at which the holder is living or, if the holder changes that address, to tell the Minister the changed address, other than s 104. However, failure to comply with s 104 does not, of itself, bear on the ground for cancellation to which subdiv C relates. Further, s 107(1)(e) itself refers to s 104. Section 107(1)(f), on the other hand, is a provision that could be of benefit to the Minister. The failure to include that requirement in a notice pursuant to s 107(1) may be prejudicial to the Minister. I am unable to see, however, how the failure to include the requirement referred to in s 107(1)(f) could be prejudicial to the recipient of the notice. Even though there has been a non-compliance with s 107(1)(f), I consider, nevertheless, that the first applicant was given a notice that can be fairly described as a notice under s 107. The failure to comply with s 107(1)(f) is not a matter that constitutes a jurisdictional error on the part of the Minister’s delegate.
GROUND 2
The applicants contend that, in determining pursuant to s 494A an appropriate method for giving notice to the applicants, the Minister’s delegate should have had regard to all of the material on the file. In particular, regard should have been had to the fact, first, that the first notice of 5 April 2002 elicited no response and, secondly, to the fact that settlement information attached to the ‘Notification of Changes in Circumstances’ sent on or around 7 November 2001 to the Minister, indicated that the applicants proposed to settle in Brisbane.
However, at that stage (that is, the time of giving the notice pursuant to s 107), the notice of 5 April 2002 had not been returned undelivered. Further, the first applicant had notified the department in a formal manner of the change of address, to the Mt Keira address. While s 109 contemplates that the recipient under s 107 will be given the opportunity of making a response to the notice, I do not consider that there is anything in s 494A that would have required the delegate, in the present case, to have done anything other than to forward a notice to the address notified by the applicant. Whether or not the failure to comply with s 494A would have given rise to an error, however that might have been characterised, I consider that the effect of s 97A, coupled with ss 494A, 494B and 494C, is clear. That is to say, procedural fairness is to be accorded to a visa holder in respect of whom a decision is contemplated under subdiv C only to the extent provided for in subdiv C. It is clear from the terms of the Act that a decision can be made in circumstances where a visa holder may not, in fact, have been informed of the intention to cancel the visa so long as the requirements of ss494A, 494B and 494C have been satisfied. In the present circumstances, I consider that they have. Accordingly, this ground fails.
GROUND 3
Section 109(1)(a) relevantly provides that the Minister may cancel a visa after having regard to any prescribed circumstances. Regulation 2.41 relevantly provides as follows:
‘For the purpose 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)the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document … .’
As I have said, the decision record of the Minister’s delegate of 23 February 2003 purports to respond to those matters or the matters in par (b) and par (c) of reg 2.41. The decision maker first noted that ‘[n]o genuine document has been presented’ and then purported to deal with the likely effect on a decision to grant a visa of the genuine document.
The applicants contend that the decision record indicates that the decision maker did not advert to the question of what effect the genuine document might have had on the decision to grant a visa. The reason for that, of course, is that there was no genuine document. It may be that the observation made by the decision maker is not a response to par (c) of reg 2.41. However, in the circumstances where there is no genuine document, as distinct from the document that was actually presented to the Minister’s delegate, I do not consider that there has been a failure to have regard to the circumstances prescribed by reg 2.41. I consider that this ground has not been established.
GROUND 4
The final ground is one that arose in the course of argument and depends upon the true construction of the definition of ‘bogus document’ in s 97 and a fair construction of the decision record in dealing with that aspect. The delegate who made the decision did not purport to express any suspicion that the reference was not issued in respect of the first applicant. Nor does the decision record reflect any suspicion that the reference was obtained because of a false or misleading statement. Nor, indeed, does the decision record refer to a suspicion that the reference was counterfeit or had been altered by a person who did not have authority to do so.
The delegate used a variety of language in referring to the reference. In the Notice of Intention to Cancel of 6 January 2003, the delegate said: ‘… you submitted to DIMIA a false work reference from China Northwest Airlines’. In the record itself, the decision maker recorded that the first applicant ‘has provided a document that is false and misleading’. The decision maker also recorded that the applicant had presented a document ‘that purports to be a genuine employment reference from China Northwest Airlines’ but that ‘the content of this document is not genuine’.
The definition of ‘bogus document’ in s 97 draws a clear distinction between a document that is counterfeit or has been altered, on the one hand, and a document that has been obtained because of a false or misleading statement, on the other. I do not consider that a fair reading of the decision record indicates that the decision maker turned his mind to the question of whether or not the reference was a counterfeit. On its face, there is no evidence of it having been altered and there was therefore no basis for concluding that the decision maker found that it fell within the definition of ‘bogus document’ for that reason. There is certainly a finding that the reference contains false information. However, there is no suggestion that the decision maker suspected that the document was obtained because of a false or misleading statement.
In the circumstances, I am not satisfied that the decision maker turned his mind to the correct question that is contemplated by s 103. That is to say, I am not satisfied that the decision maker embarked on a determination of the question that s 103 poses. Section 103 provides that, in effect, the applicant should not have given the Minister’s delegate a document that is counterfeit or has been altered. The decision maker did not turn his mind to that question.
RELIEF
Section 476(1) of the Migration Act provides that the Federal Court does not have any jurisdiction in relation to a ‘primary decision’. Section 476(6) provides that ‘primary decision’ means a ‘privative clause decision’ of certain kinds. Under s 474(2), a ‘privative clause decision’ means ‘a decision of an administrative character made under the Act’.
Identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material results in the decision maker exceeding the authority or powers given by the relevant statute. If an error of those types is made, the decision maker did not have the authority to make the decision that was made. The decision maker simply does not have jurisdiction to make a decision in those circumstances: see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 and Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 at 45 [76]-[78]. In the circumstances, I do not consider that the decision of 25 February 2003 was a decision made under the Act and is therefore not a privative clause decision.
Section 475A provides that s 476 does not affect the jurisdiction of the Federal Court under s 39B of the Judiciary Act in relation to any decision in respect of which the court's jurisdiction is not excluded by section 476. I do not consider that jurisdiction to grant relief in respect of the decision was excluded by s 476.
Under s 114(1), if the Federal Court sets aside the decision under s 109 to cancel a person’s visa, the visa is taken never to have been cancelled. In the circumstances, I consider it is appropriate to make an order that the decision made under s 109 of the Act on 25 February 2003 to cancel the visas granted to the applicants on 4 December 2001 be set aside.
The applicants ask for an order for the costs of the proceeding. That order was opposed by the Minister on the basis that the ground upon which the applicants have succeeded was not raised by the applicants but arose, in effect, as a result of questions raised by the Court in the course of the hearing. It would have been open to the Minister to seek an adjournment when the applicants sought to rely on that fourth ground. It is conceivable that the Minister may have received instructions to consent to the order that I have made. However, no application for adjournment was made and the Minister advanced submissions opposing the ground upon which I have now determined that the decision should be set aside. Certain of the costs that have been involved in the preparation for the hearing have been wasted but that is the case wherever more than one ground is relied upon. In the circumstances, I think it is appropriate to order that the Minister pay the costs of the applicants of the proceeding.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 30 July 2003
Counsel for the Applicant: G R Kennett Solicitor for the Applicant: Christopher Levingston & Associates Counsel for the Respondent: R T Beech-Jones Solicitor for the Respondent: Clayton Utz Date of Hearing: 23 June 2003 Date of Judgment: 23 June 2003
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