SZVCL v Minister for Immigration
[2016] FCCA 1856
•22 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVCL v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1856 |
| Catchwords: MIGRATION – Review of decision of Migration Review Tribunal (Tribunal) affirming decision of delegate of the first respondent (Minister) not to grant the visa applicants Visitor (Class FA) visa (Visitor visa) – whether Tribunal made jurisdictional error in concluding it was not satisfied the visa applicant did not have a genuine intention to stay temporarily in Australia – whether in so concluding the Tribunal relied on a fact for which there was no evidence – whether such fact was a jurisdictional fact – whether the “no evidence” ground of jurisdictional error is restricted to jurisdictional facts – whether it was reasonably open to the Tribunal to consider relevant to whether the visa applicants did not have a genuine intention of staying temporarily in Australia one of the visa applicant’s parents visiting the visa applicants in China, the father of one of the visa applicants (Son) purchasing in the names of the father and the Son’s wife (wife) a four-bedroom property in Australia, the Son’s having previously been included in his mother’s application for a partner visa, the father’s having entered Australia on a tourist visa but after entering Australia successfully obtaining a Protection visa – whether Tribunal considered separately the wife’s claim for a Visitor visa – whether the Tribunal misunderstood claim made by the Son’s mother – whether Tribunal mistakenly attributed to Son evidence given by father – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 359A(1), 359A(4), 359A(4)(a), 359A(4)(b), 360(1), 424A, 424A(1), 424A(3)(a) Migration Regulations 1994 (Cth), Sch.2, cl. 600.211, 600.211(c) |
| Cases cited: Buchwald v Minister for Immigration and Border Protection [2016] FCA 101 SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 |
| Applicant: | SZVCL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1964 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 11 June 2015 |
| Date of Last Submission: | 21 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondents: | Mr D Hughes |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1964 of 2014
| SZVCL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant’s son, daughter-in-law, and grandson, Visitor (Class FA) visas (Visitor visas). In these reasons for judgment, I will collectively refer to the persons who applied for the Visitor visas as the “visa applicants”.
Background
The visa applicants are nationals of the People’s Republic of China. One of the visa applicants (Son) is a doctor who practices in China.
In 2007 the Son’s father (review applicant) entered Australia on a subclass 676 Tourist visa, but then applied for a Protection visa. In January 2008 the Refugee Review Tribunal concluded Australia owed the review applicant protection obligations. The review applicant was granted a Protection visa and, later, became an Australian citizen.
In August 2008 the Son’s mother (mother) applied for a partner visa on the ground that she wanted to join and be united with the review applicant. The Son, who was then 26 years of age, was included in the mother’s application as a family member. In January 2009 a delegate of the Minister granted the mother a partner visa, but refused to grant the Son a visa because he was not a dependent of his parents.
In June 2013 the Son, wife, and their child, applied for Visitor visas. This was the second occasion on which the Son and the wife applied for such visa. They had each applied for a Visitor visa in 2010, but their applications were refused by a delegate of the Minister because the delegate was not satisfied the Son and the wife were genuine visitors, and was not, therefore, satisfied they would return to China at the expiry of the Visitor visas, if they were granted.
To have been entitled to a Visitor visa, the visa applicants had to satisfy, among other things, the criterion provided for by cl.600.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations):
The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(a) whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b) whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and
(c) any other relevant matter.
In their application for Visitor visas, the visa applicants stated they intended to visit the Son’s parents and spend time with them, and for the Son’s parents to meet their child for the first time. In support of the application, the Son provided letters from his and the wife’s employers, and documents evidencing ownership of properties and of two motor vehicles in China. The Son’s agent submitted the Son and the wife have no incentive to stay in Australia, and have a strong incentive to return to China.
A delegate of the Minister refused to grant the visa applicants Visitor visas. The review applicant then applied to the Tribunal (First Tribunal) for a review of the delegate’s decision. After conducting a hearing on 15 November 2013, the First Tribunal affirmed the delegate’s decision. By consent, however, this Court set aside the First Tribunal’s decision, and remitted the matter to the Tribunal for reconsideration.
Before the Tribunal
The review applicant, mother, and Son gave evidence before the Tribunal on 21 May 2014.
Review applicant’s evidence
The review applicant gave evidence on a number of topics. The first was the period for which the Son intended to stay in Australia. The review applicant said the Son and his family were now planning to stay in Australia possibly for two weeks.[1]
[1] CB265, [18]
The second topic was where the visa applicants intended to stay in Australia, if Visitor visas were granted to them. The review applicant said that where the visa applicants would stay depended on whether they were to arrive before December 2014. In that month, the review applicant intended to settle a contract for sale of a property he had purchased. The property was purchased for $680,000, but in the name of the review applicant and the wife. The Son had given his parents $140,000 to pay for the property. The money came from the Son’s father-in-law. The review applicant and the mother had not contributed towards the purchase price of the property. The property was a townhouse with four bedrooms, but only the review applicant and the mother intended to live in the property.
The third topic on which the review applicant gave evidence related to the Son’s and the wife’s employment and financial circumstances in China. The review applicant said the Son was working in the same hospital he was working in in 2008, and that he was earning between 480,000RMB and 600,000RMB per annum, and that 480,000RMB was equivalent to AUD70,000. The wife was earning 100,000RMB per annum, which was equivalent to AUD17,330. The Son owned between three and five properties in China.
The fourth topic related to the review applicant’s relationship with the mother. When he applied for a Protection visa, the review applicant claimed he had been estranged from the mother for ten years; yet, soon after the review applicant was granted a Protection visa, on 8 August 2008 he sponsored the mother for a partner visa. Before the review applicant arrived in Australia in 2008 he and the mother lived 500 km apart and only saw each other two or three times a year. They were “separated but together”, and they separated because of the review applicant’s belief in Falun Gong, and the mother’s being against it.
The fifth topic related to the Son’s applying in 2008 to live permanently in Australia when the mother had applied for a partner visa. The review applicant said the Son never really did want to live in Australia, and that “it was a mistake of the agent”. At the time that application was made, the Son was working as a doctor with his current employer.
The Tribunal informed the review applicant of a number of matters which, subject to comments the review applicant might make, would be the reason, or a part of the reason for the Tribunal affirming the delegate’s decision.
a)The review applicant previously applied to enter Australia on a tourist visa, but then applied for a Protection visa. The Tribunal said that information was relevant because it showed that a close family member of the Son had applied for a tourist visa when he was not a genuine tourist.[2] The review applicant said the Son had a good job in China, the Son’s wages were good, and the Son’s parents in law live in China, but the review applicant’s situation was different because he suffered harassment in China.[3]
b)The Son was included as a family member in the mother’s partner visa application. The Tribunal said that was relevant because it indicated the Son had applied to reside permanently in Australia, and that further indicated the Son had a current intention to reside in Australia.[4] The review applicant said that batches of people from the Son’s work had come to Australia, but returned to China. The review applicant did not understand the partner visa application, and did not know the Son was included in that application; it was his agent “who did it”.[5]
c)There were a number of inconsistencies in the evidence about the relationship between the mother and the review applicant. One inconsistency was that in his application for a Protection visa, the review applicant said he had been separated from the wife for ten years. Further, at the hearing before the Tribunal in November 2013 the review applicant said the wife lived and worked in the fashion industry in Yan Bian from 1996 while the father remained in Jilin until his departure in 2007 to Australia. On the other hand, at the hearing before the Tribunal, the mother said she had retired from work in 1996 and that she lived with the review applicant all the time until the review applicant came to Australia in 2007. Further, in her application for a partner visa, the mother stated she had been living at the same residence in Jilin for ten years before she applied for a partner visa, and the address the review applicant had stated in his application for a Protection visa was the same address as that given by the mother in her application for a partner visa.
d)The Son and the wife stated they owned two properties in China whereas the review applicant said the Son had three to five properties. The Tribunal informed the review applicant that this inconsistency suggested the review applicant was exaggerating his evidence to support the Son’s case.
[2] CB266, [30]
[3] CB266, [31]
[4] CB266, [32]
[5] CB267, [33]
Mother’s evidence
According to the Tribunal’s reasons for decision, the mother said the Son and his family were only to visit Australia for two weeks. She said the Son wanted to visit the mother because she was sick with varicose veins and other health issues.[6] A four-bedroom property was purchased in the name of the review applicant and the wife to prepare for other family members who will come and live with them.[7]
[6] CB267, [38]. That reflects the evidence the mother gave: see Affidavit G Hawkins, annexure “A” (Transcript).
[7] CB268, [39]
The mother also gave evidence about her relationship with the review applicant before he came to Australia in 2007. She said she had lived separately from the review applicant for about ten years because she did not accept the review applicant’s Falun Gong practice. During the period of separation, the mother worked in the fashion industry at Yan Bian whereas the review applicant lived in She Yang. The mother said that after the review applicant left for Australia, she did accept Falun Gong because the Son had a cold and was quite ill.[8]
The Tribunal informed the mother that her evidence was inconsistent with information she had previously provided to the Tribunal.[9] That appears to have been a reference to the mother having stated to the First Tribunal at the hearing of 15 November 2013, that she had retired from work in 1996, and that she lived with the review applicant all the time until he came to Australia in 2007.[10] It also appears to have been a reference to the mother having stated in her application for a partner visa that she had been living in the same residence in Jilin for the ten years before filing her application in 2008.[11] The Tribunal noted that, when invited to comment on these inconsistencies, the mother “became extremely hesitant in giving any answers to the tribunal and appeared to be confused as to what she should answer”.[12] The Tribunal noted the mother “was not able to explain the inconsistencies in the information she had provided to the tribunal on different occasions or why in her partner visa application she had stated that she had been living with her husband at the same address”.[13]
[8] CB268, [40]
[9] CBCB268,[41]
[10] CB267, [34], third bullet point
[11] CB267, [34], fourth bullet point
[12] CB268, [41]
[13] CB268, [41]
Finally, the Tribunal informed the mother the Son had been included in her application for a partner visa. The mother said she did not know the Son had been included in the application.[14]
[14] CB268, [42]
Son’s evidence
The Son said the main purpose of his visit was to see the mother because of her health issues.[15] He said he and his father-in-law contributed money towards the review applicant’s purchase of the property. The Son said the property was purchased in the name of the review applicant and the wife. The Tribunal noted there was a long pause between his saying the property was purchased in the review applicant’s name before he said the property was also purchased in the wife’s name. The Son said he did not originally mention the wife’s name because she was not the main buyer.[16]
[15] CB268, [43]
[16] CB268, [44]
The Son said they purchased a three-bedroom house so that he, the wife and family had a place to stay when they visit.[17] He said he was currently earning 25,000 RMB per month, and that his wife was earning about 40,000RMB per month.[18] In response to the Tribunal’s asking how it was that his income had increased from the 200,000RMB the Son had disclosed in May 2013, the Son said there was the normal increase of income each year based on an index.[19] The Son also said the wife’s income had increased by 400% because she returned to full time work.[20]
[17] CB268, [45]
[18] CB269, [46]
[19] CB269, [47]
[20] CB269, [48]
The Tribunal’s decision
The Tribunal considered that the issue before it was whether it was satisfied the visa applicants genuinely intend to stay in Australia for the purpose for which the Visitor visas were to be granted, and whether the visa applicants intended to comply with the visa conditions to which the Visitor visas would be subject.[21] The purpose for which the visa applicants claimed they sought the Visitor visas was to visit the review applicant and the mother. That was a purpose for which a Visitor visa could be granted. The Tribunal, however, was not satisfied the visa applicants genuinely intend to stay temporarily in Australia for that purpose. In reaching this conclusion, the Tribunal considered a number of matters.
[21] CB269-270, [56]
The first was the credibility of the review applicant, the mother, and the Son. The Tribunal found the evidence given by them was “designed to obtain the desired immigration outcome and was not based on an open and honest account of the facts or answers to the questions put to them by the tribunal”.[22] For this conclusion, the Tribunal relied on inconsistencies in the answers given by the review applicant and the mother about their relationship immediately before the review applicant arrived in Australia in 2007 on a tourist visa,[23] on the review applicant’s having stated the Son owned three or five properties in China (later the review applicant stated three or four properties), whereas the Son and mother gave evidence the Son owned only two properties;[24] the income of the Son and the wife had been exaggerated;[25] and the Son’s initially failing to disclose that the wife was part owner with the review applicant of a property in Sydney.[26]
[22] CB271, [70]
[23] CB270-271, [64]
[24] CB271, [66]
[25] CB271, [67]-[68]
[26] CB271, [69]
The second matter the Tribunal considered was the immigration history of the review applicant, the mother, and the Son. Here, the Tribunal referred to the Son’s having been included as a family member in the mother’s application for a partner visa. The Tribunal found that indicated a desire by the Son at the time that application was made to live permanently in Australia.[27] The Tribunal did not accept the review applicant’s, the mother’s, and the Son’s evidence that the Son was included in the partner visa application by their agent’s mistake.[28] The Tribunal acknowledged that the Son’s circumstances in 2008 were different from those that currently exist because he was not then married, and did not have a child. The Tribunal, however, considered it significant that the Son has remained employed by the same employer.[29] The Tribunal also considered relevant the review applicant’s having entered Australia in 2007 on a subclass 676 Tourist visa when his intention was to seek a Protection visa and reside permanently in Australia.[30]
[27] CB272, [71]
[28] CB272, [72]
[29] CB272, [74]
[30] CB272, [75]
The third matter the Tribunal considered was the relatives the Son and the wife had in China. The Tribunal accepted the Son has uncles and aunts who live in China, but it was not satisfied the Son’s relationship with these relatives would provide encouragement to him to return to China at the end of any visit to Australia.[31] The Tribunal also accepted that the wife’s parents continue to live in China, and this would encourage the visa applicants to return to China at the end of any visit to Australia.[32]
[31] CB272, [76]
[32] CB272, [77]
The fourth matter the Tribunal considered was the Son’s and the wife’s employment in China. The Tribunal considered this aspect of the application on the assumption that the Son’s income in China was 200,000 RMB, being the income the applicant stated in his application for the Visitor visa. That equated to approximately AUD34,700. Although the Tribunal acknowledged that such salary might provide a reasonable standard of living in China, it did not accept that it would provide any significant incentive for the Son, being a person with medical qualifications, to return to China at the end of a visit.[33] As for the wife, the Tribunal noted she had provided a certificate from her employer stating she was earning 100,000RMB per annum, which equated to approximately AUD17,330, but the Son claimed the wife’s income was 400,000RMB per annum. The Son said the wife’s previously disclosed income reflected what she was paid when she worked part time because she had to look after their child. In the absence of independent information to confirm the Son’s claims, the Tribunal was not prepared to accept the wife earned 400,000RMB per annum. The Tribunal concluded that the income of 100,000RMB did not provide significant incentive for the wife to return to China.[34]
[33] CB272, [78]
[34] CB273, [79]
The fifth matter the Tribunal considered was the properties the Son owned in China. The Tribunal found the Son owned not more than two properties in China, and that provided some incentive to the Son to return to China.[35]
[35] CB273, [80]
The sixth matter the Tribunal considered were conditions that might encourage the Son and the wife to remain in Australia or fail to comply with the visa conditions. These were the review applicant and the mother residing in Australia; the mother suffering from medical conditions;[36] the review applicant having purchased a property in Australia in the name of the review applicant and the wife, and the money to purchase the property was provided by the Son, and possibly from the Son’s father-in-law;[37] and the property that was purchased had four bedrooms, even though the Son said it had only three bedrooms.[38] The Tribunal concluded:[39]
The significant investment by the visa applicant and his wife into a four-bedroom unit in Australia provides a very real encouragement for the visa applicants to remain in Australia. It also indicates a willingness of the visa applicant and his wife to invest further in Australia on a long-term basis.
[36] CB273, [81]
[37] CB273, [82]
[38] CB273, [83]
[39] CB273, [84]
In a section headed “Overall assessment”, the Tribunal noted it must “assess the circumstances and relevant matters” of the visa applicants to determine “whether the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted”.[40] The Tribunal noted its credibility findings were of “significant concern”,[41] and that it has considered “all the information both individually and cumulatively”.[42] The Tribunal noted, however, that some aspects of the visa applicants’ claims support a finding that they intend to stay in Australia temporarily. Against that, however, there were “significant factors” that would indicate otherwise:[43]
This includes the fact that they have made a significant financial investment in property in Australia, the close ties the visa applicant has to his parents, the fact that the visa applicant has previously applied to live permanently in Australia, the disparity in the relative income the visa applicant would be able to earn [in] Australia as compared to China, and the fact that the review applicant and his wife have recently spent time with the visa applicant and his family in China.
[40] CB274, [86]
[41] CB274, [87]
[42] CB274, [88]
[43] CB274, [88]
The Tribunal concluded that, when assessing all of these matters, “the weight of evidence does not support a finding that the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted”.[44]
[44] CB274, [89]
Ground 3 – income disparity finding
In his amended application, the review applicant identifies a number of findings made by the Tribunal which, he claims, were made as a result of jurisdictional error. The first finding counsel for the review applicant addressed is that identified in ground 3 of the amended application, namely, that one of a number of significant factors “which would indicate that the visa applicants did not intend to stay temporarily in Australia for the purpose for which the visa is granted” was “the disparity in the relative income the visa applicant would be able to earn [in] Australia as compared to China” (income disparity finding).
The review applicant makes five submissions in support of his contention that the income disparity finding was made as a result of jurisdictional error.
a)First, the income disparity finding was premised on the assumption that the Son would be able to earn an income in Australia; yet there was no basis on which the Tribunal could have so assumed.[45]
b)Second, and in any event, the Tribunal made the income disparity finding without considering whether the Son or the wife would be able to obtain employment in Australia. That reveals jurisdictional error because, whether or not the Son or the wife would be able to obtain employment in Australia if they were to overstay their visa was a “relevant matter” within the meaning of cl.600.211(c) of Schedule 2 to the Regulations which the Tribunal was bound to, but did not, consider.[46]
c)Third, the income disparity finding is based on information concerning the income the Son would be able to earn in Australia. That constituted “information” within the meaning of s.359A of the Migration Act 1958 (Cth) (Act), but the Tribunal failed to give to the review applicant clear particulars of that information, and otherwise failed to do that which s.359A of the Act required the Tribunal to do in relation to the information.[47]
d)Fourth, even if the income the Son would be able to earn in Australia was not “information” within the meaning of s.359A of the Act, whether or not the Son would be able to earn an income in Australia that was disparate from what he earned in China was an issue of which the Tribunal ought to have given notice to the applicant and, by failing to do so, failed to accord the review applicant a hearing as required by s.360(1) of the Act.[48]
e)Fifth, the Tribunal failed to consider the comparative purchasing power of the Australian dollar and the Chinese Ren Min Bi.[49]
[45] Amended application, ground 3(a); Outline of Submissions for Applicant, [43(a)]
[46] Amended application, ground 3(a); Outline of Submissions for Applicant, [43(b) and (c)]
[47] Amended application, ground 3(b); Outline of Submissions for Applicant, [44]
[48] Amended application, ground 3(c); Outline of Submissions for Applicant, [45], relying on SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152
[49] Amended application, ground 3(d); Outline of Submissions for Applicant, [46], [47]
The Minister’s response to these submissions is as follows:
a)The Tribunal’s finding is based on its own knowledge. It was open to the Tribunal to find that a doctor in Australia can make more than the $34,700 per annum the Tribunal found the Son was earning in China, and that, therefore, the Son would be able to earn more money in Australia than he currently earns in China.[50] Further, the review applicant’s submission overlooks what would have been obvious to the Tribunal and the review applicant, namely, that it was likely that, if the Son were to apply for a Protection visa, he would be able to obtain a bridging visa and, if the application for a Protection visa were granted, the Son would be able to work in Australia.[51]
b)The amount the Son would have earned in Australia was not “information” for the purposes of s.359A of the Act because it was based on general knowledge of what doctors earn in Australia. Moreover, what the Son would earn in Australia was not information which, “in its terms”, would undermine the genuineness of the Son’s applicant’s claims for a Visitor visa.[52]
c)The review applicant cannot rely on some requirement of procedural fairness beyond that provided for by s.359A of the Act.[53]
d)The Tribunal did not fail to have regard to any relevant matter.[54]
[50] First Respondent’s Written Submissions [25]
[51] First Respondent’s Written Submissions [26]
[52] First Respondent’s Written Submissions [27]
[53] First Respondent’s Written Submissions [28]
[54] First Respondent’s Written Submissions [29]
The issues that arise on these competing submissions, therefore, are as follows:
a)Did the Tribunal rely on an assumption that the Son would be able to earn an income in Australia for which there was no evidence and, if so, did it commit a jurisdictional error?
b)In any event, did the Tribunal consider whether the Son would be able to earn an income in Australia?
c)Is the income the Tribunal found the Son would be able to earn in Australia “information” within the meaning of s.359A of the Act?
d)Whether or not the income the Tribunal found the Son would be able to earn in Australia is “information” within the meaning of s.359A of the Act, was the Tribunal obliged to give the review applicant notice that it might make a finding to that effect?
e)Did the Tribunal ignore the comparative purchasing power of the Australian dollar and the Chinese Ren Min Bi?
Relying on assumption for which there was no evidence
There is no issue that, in making the income disparity finding, the Tribunal relied on two related factual premises, namely, that the Son would be able to earn income in Australia, and the income he would be able to earn in Australia would be greater than the income the Tribunal found the Son was earning in China. Nor is there any issue that the factual premises on which the Tribunal relied were not based on any particular evidence; the premises were something the Tribunal found to be the case. The question that arises is whether the Tribunal made a jurisdictional error by making such finding without explicitly referring to or relying on any evidence.
The review applicant submits the Tribunal made a jurisdictional error; and he relies on what may for convenience be called the “no evidence ground of review”. Counsel for the review applicant particularly relies on the following passage from the reasons for judgment of the Full Federal Court in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs:[55]
If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error. . . . If . . . the material on which the tribunal relied was so inadequate that the only inference was that the tribunal applied the wrong test or was not, in reality satisfied in respect of the correct test, then there would be jurisdictional error.
[55] SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19] (Mansfield, Selway and Bennett JJ)
This apparently simple statement of principle masks difficulties in formulating and applying a ground of review based on the absence of evidence. The difficulties arise, at least in part, from the nature of reasoning based on evidence. One difficulty arises from the fact that reasoning based on evidence consists in the drawing of inferences. As has been noticed, however:[56]
On close examination many apparently simple inferences reveal some remarkably subtle properties that often go unrecognized. Inferences can be decomposed to various levels of “granularity”. As we make finer decompositions of an inference, we expose additional and often interesting sources of uncertainty. One trouble we face is that there rarely seems to be any final or ultimate decomposition of an inference.
[56] D A Schum Evidential Foundations of Probabilistic Reasoning John Wiley & Sons, Inc. 1994, page 2
This aspect of inferential reasoning based on evidence means that any given finding of fact is capable of being decomposed into one or more premises for which no supporting evidence can be identified. The “more one subdivides the findings of fact into their separate components, the greater the possibility of discovering a finding unsupported by any evidence”.[57] The formulation of a “no evidence” ground of review, therefore, needs to specify the type of facts for which there must be no evidence. And there are a number of statements in the cases that identify such types of fact.
[57] M Aronson and M Groves Judicial Review of Administrative Action Fifth Edition, 2013 at page 247 [4.620]
One class of facts are those identified by Kenny J in SZFWB v Minister for Immigration and Citizenship:[58]
Generally speaking, as the Full Court in WAJS noted (at [12] citing Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 at 150 per Wilcox J) the “no evidence” ground has been treated as a distinct ground of invalidity in “cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact”.
[58] [2007] FCA 167 at [31]
On this approach, the class of facts for which there must be an absence of evidence are facts which the decision-maker must be satisfied exist before he or she can make the relevant decision. This class of facts appears to be narrower than the facts for which the Full Court in SFGB found there must be an absence of evidence before the “no evidence” ground can apply, namely, facts which constitute “a critical step” in the decision-maker’s ultimate conclusion.
A still narrower class of facts is the class suggested by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB.[59] One of the issues before the High Court in that case was whether the Tribunal made a jurisdictional error by finding, in the absence of any evidence, that the applicant in that case suffered from Post-Traumatic Stress Disorder. Gummow and Hayne JJ held there was no jurisdictional error because “nothing in the Act made the question of whether or not the respondent suffered from PTSD a precondition to the exercise of jurisdiction” and, for that reason, “[n]o question of a “no evidence” ground of jurisdictional error arises”.[60]
[59] [2004] HCA 32; (2004) 78 ALJR 992
[60] [2004] HCA 32; (2004) 78 ALJR 992, at [39]
This approach was applied in Plaintiff S156-2013 v Minister for Immigration and Border Protection where the High Court said:[61]
The plaintiff also argues that there was no evidence that PNG would fulfil its assurances and would promote the maintenance of a programme which was fair to UMAs. However, there was no statutory requirement that the Minister be satisfied of these matters in order to exercise the relevant power. They do not qualify as jurisdictional facts.
[61] [2014] HCA 22 at [46]
Thus, on this approach, the “no evidence ground” of review applies only to jurisdictional facts. It has been held that “the jurisdictional fact approach is the preferred approach to the “no evidence” ground as a stand-alone ground of judicial review”.[62]
[62] Buchwald v Minister for Immigration and Border Protection [2016] FCA 101 at [39] (Bromberg J). See also SZSQL v Minister for Immigration and Border Protection [2015] FCA 294 at [30] (“The fact of which there is said to be no evidence must be a jurisdictional fact, that is “an essential preliminary to the decision-making process” as distinct from “a fact to be adjudicated upon in the course of the inquiry”.”) (Gleeson J)
Another difficulty that arises from the nature of reasoning based on evidence is that the reasoner often, if not always, draws inferences from evidence by reference to generalisations concerning the physical, human, or social worlds the existence of which is not supported by evidence. The use of unproven generalisations to draw inferences is near ubiquitous:[63]
Much empirical material is employed in decision making by courts without evidence being received, without judicial notice being taken, without admissions being made, and without any specific warning being given to the party against whom that empirical material is used . . . It is material which is part of the make-up of human beings who form courts arising out of their general experience of life. That experience has many elements – their personal experiences, what they were taught by their parents and their schools, what others told them about their experiences, and what they learned from newspapers, radio, television, films and books. This general common experience of life causes the minds of courts to be full of many generalisations – right or wrong, crude or subtle, useful or misleading – about the behaviour of humans and about the physical and social world they inhabit.
[63] J D Heydon Cross on Evidence 10h Australian ed (2015) at 208 ([3200]) (footnotes omitted)
Given the ubiquitous use of assumed generalisations in the drawing of inferences, and quite apart from the restriction of the “no-evidence” ground of review to jurisdictional facts, it is unlikely that the “no-evidence” ground could be applied to generalisations an administrative tribunal consciously or unconsciously applies when drawing inferences on the basis of evidence that is before it.
There is another, though related, difficulty in the way of formulating a “no-evidence” ground of jurisdictional error; and this arises from knowledge a tribunal has accumulated as a result of the tribunal’s experience. This class of facts has been discussed, particularly in the United States, under the heading of “official notice”,[64] although a leading Australian textbook on administrative law also considers an administrative body’s use of such information under the same heading.[65] That administrative tribunals are entitled to rely on such accumulated knowledge appears to be accepted in Australia,[66] but the precise scope of that ability in any particular set of circumstances may be unclear.[67] Even where an administrative tribunal may be entitled to rely on his or her own accumulated knowledge, that ability might be conditional on the tribunal giving the person who is likely to be adversely affected by the tribunal’s use of such knowledge an opportunity to be heard. In any event, the point of mentioning that, at least in certain circumstances, an administrative tribunal may be entitled to make a finding based on nothing more than the tribunal’s accumulated knowledge, is that such finding would not be amenable to challenge on the “no evidence ground”. And this is the Minister’s submission in answer to this part of the review applicant’s case. The Minister submits the Tribunal was entitled to find the Son would be able to find employment in Australia because it could reasonably be said the Tribunal relied on its knowledge of the operation of the Act.
[64] See R J Pierce Administrative Law Treatise 5th ed 2010 Vol II pages 946-965.
[65] M Aronson and M Groves Judicial Review of Administrative Action Fifth Edition, 2013 at pages 533-537, [8.210]
[66] See, for example, Chiropractors Association of Australia (SA) Ltd v WorkCover Corporation of South Australia [1999] SASC 120 at [187] (Doyle CJ)
[67] See M Aronson and M Groves Judicial Review of Administrative Action Fifth Edition, 2013 at pages 533-537, [8.210]
I now return to the question in issue: did the Tribunal make a jurisdictional error by finding, without explicitly referring to or relying on any evidence, the Son would be able to find employment in Australia?[68] If the “no evidence ground” is restricted to jurisdictional facts, the Tribunal made no jurisdictional error by so finding. Whether or not the Son would be able to find employment in Australia is not a jurisdictional fact; the only jurisdictional fact in relation to the Tribunal’s determination of the application for review was whether the Tribunal was or was not satisfied the visa applicants were entitled to Visitor visas.
[68] Outline Submissions for Applicant [43(a)]
In supplementary submissions, counsel for the review applicant submitted that I should follow SFGB because the High Court was moving towards subsuming a “no evidence” contention as an aspect of the ground of judicial review based on irrationality or illogicality.[69] Counsel further submitted that the source of the jurisdictional fact approach to the “no evidence ground” was less secure than the source of the “no evidence ground” as stated by the Full Federal Court in SFGB. I do not accept these submissions. Plaintiff S156-2013 is unequivocal authority for the proposition that the “no evidence ground” applies only to jurisdictional facts.
[69] Supplementary Submissions for Applicant [11]
Counsel for the review applicant also submitted that if, contrary to his submissions, I decide to apply the jurisdictional fact approach, the review applicant’s “no evidence” contentions are also relevant to the review applicant’s “illogical/irrational contentions”, as set out in paragraph 48(b) of the review applicant’s written submissions. This, however, does not assist the review applicant. As was said by Gummow A-CJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS, the “ascertainment of the relevant jurisdictional error, if there be one, must fix upon the treatment of the requirement mandated by s 65 of the Act that the decision maker be “satisfied” that there is ““satisfied”” the criteria for the granting of a visa.[70] In other words, the illogicality ground of review, just like the “no evidence” ground, applies to jurisdictional facts, in this case, the Tribunal’s being satisfied that the visa applicants are entitled to be granted Visitor visas. Thus, just as with the “no evidence ground”, the review applicant must show that the Tribunal’s finding that the Son would be able to find employment in Australia was a jurisdictional fact, before it may be concluded that any irrationality or illogicality attending that finding constitutes jurisdictional error.
[70] (2010) 240 CLR 611 at [37]
If, contrary to what I have concluded, the “no evidence” ground was not restricted to jurisdictional facts, or that the Son’s ability to find employment in Australia was a jurisdictional fact, I would not have accepted the Minister’s submission that the Tribunal relied on its own knowledge for so finding. It might reasonably be supposed the Tribunal was aware that if the Son were granted a Visitor visa, and he were to stay beyond the time permitted by the Visitor visa, the Son would be an unlawful non-citizen. It may also be reasonably supposed the Tribunal was aware there were means available to the Son and the wife by which they might lawfully be able to work, provided they obtained an appropriate visa. But whether or not the Son and the wife would be able to work would depend on a number of evidentiary matters which it could not reasonably be supposed to have been within the knowledge of the Tribunal.
In any event, based on my conclusions that the “no evidence” ground applies only to findings of fact that are jurisdictional facts, and that the Tribunal’s finding that the Son and wife would be able to work in Australia is not a jurisdictional fact, this part of the review applicant’s claims fails.
Not considering whether visa applicants would be able to earn an income in Australia
The review applicant submits the Tribunal did not consider whether the Son would be able to earn an income in Australia.[71] To an extent, this submission conflicts with the review applicant’s submission that it was on the basis of no evidence that the Tribunal found the Son would be able to earn an income in Australia.
[71] Outline Submissions for Applicant, [43(b) and (c)]
The Tribunal does not in its reasons for decision discuss what the Son and the wife would do at the expiry of the Visitor visa. It does not consider whether the Son and the wife intend to seek work and, if so, how they intend to seek work given that, unless they applied and were granted an appropriate visa, they would have no legal entitlement to seek such work. There is nothing in the transcript of the hearing before the Tribunal that indicates the Tribunal asked the Son or the review applicant or the mother whether the Son or the wife intended to work in Australia or how they would manage lawfully to work in Australia if they overstayed their Visitor visas. I am not prepared to find, however, that the Tribunal did not consider whether the Son and the wife would be able to earn an income in Australia. The income disparity finding necessarily implies the Tribunal at the very least expressly assumed the Son and the wife would be able to work in Australia. On what basis the Tribunal came to hold that assumption, however, is not apparent from its reasons for decision.
This part of the review applicants’ claims also fails.
Section 359A of the Act
The review applicant submits the income disparity finding is based on “information” within the meaning of s.359A of the Act. The relevant information is the income the Son earned in China and the income the Son would be able to earn in Australia. The review applicant submits the Tribunal, therefore, was required, but failed, to give clear particulars of that information to the review applicant and, for that reason, made a jurisdictional error.
I made some observations in SZQQA v Minister for Immigration& Anor about the meaning of “information” in s.424A(1) of the Act (which is equivalent to s.359A(1) of the Act). I there said:[72]
[12] A formulation that is often applied to determine whether any given information is “information” to which s.424A(1) applies is that given by the High Court in SZBYR and Another v Minister for Immigration and Citizenship and Another.[73] In that case, the High Court held that portions of a statutory declaration did not constitute “information” for the purposes of s.424A(1) of the Act because they “did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations”.[74] And in Minister for Immigration and Citizenship v SZLFX and Another, the High Court said that for s.424A(1)(a) to be engaged, “the material in question should in its terms contain a rejection, denial or undermining of the review applicant’s claim to be a refugee”.[75]
[13] The presence of the words “in their terms” in the High Court’s formulation suggests that to fall within s.424A of the Act the information must on its face disclose a rejection, denial or undermining of a claim. That, in turn, suggests that the information must contain some reasoning which links the information to the claim. But that cannot be what the High Court intended the expression to cover.
[14] In my opinion, the information that is caught by s.424A of the Act is “evidentiary material or documentation” which the Tribunal provisionally considers to be the reason or a part of the reason for affirming the decision under review. Thus, it must be evidence on the basis of which it is open to the Tribunal to conclude that it contradicts or undermines an essential element of an applicant’s claim for protection, or evidence in combination with other evidentiary material on the basis of which it is open to the Tribunal to find a fact which by itself contradicts or undermines an essential element of an applicant’s claim for protection.
[15] Accordingly, whether the information which the applicant claims, and the Minister disputes, is information to which s.424A(1) applied depends on whether the Tribunal considered either item of information to be evidence that by itself contradicted or undermined an essential element of the applicant’s claim or was evidence that, in combination with other evidence the Tribunal accepted, led to the making of a finding of fact that by itself contradicted or undermined an essential element of the applicant’s claim. That requires an analysis of the applicant’s claims, and the Tribunal’s reasons for affirming the delegate’s decision . . . .
[72] SZQQA v Minister for Immigration& Anor [2014] FCCA 1923 at [12]-[15]
[73] (2007) 235 ALR 609
[74] (2007) 235 ALR 609 at page 615 ([17])
[75] (2009) 238 CLR 507 at page 513 ([22])
As I have already said, the review applicant relies on two items of information he submits is “information” within the meaning of s.359A of the Act, namely, the income the Son earned in China, and “the income the visa applicant [Son] would be able to earn in Australia”.[76] I first turn to the Son’s income in China. That is not “information” within the meaning of s.359A of the Act. That is so because it is information on which the review applicant relied to support the visa applicants’ case. That is, the review applicant relied on the Son’s income to submit that it offered incentive for the Son to return to China, rather than remain in Australia. It was not information, therefore, that constituted a rejection, denial, or undermining of the visa applicants’ claims for Visitor visas.
[76] Outline Submissions for Applicant. [44]
It is not entirely clear to what the Tribunal intended to refer by the expression “the income the visa applicant would be able to earn in Australia”, being the second item of information the review applicant submits was “information” within the meaning of s.359A of the Act. The Minister submits the income the Tribunal had in mind is income that medically qualified persons earn in Australia. That appears to be, and I find that it is, the Tribunal’s intended use of “income”. That is apparent in the Tribunal’s finding that although “this income [of AUD34,700] may provide a reasonable standard of living in China, as the person with medical qualifications, an income of only AU$34,700 would not appear to provide any significant incentive for the visa applicant to return to China at the end of any visit”.[77] Thus, the Tribunal’s reference to “disparity in the relative income the visa applicant would be able to earn” is a reference to the disparity between the Son’s income of AUD34,700, being the Australian dollar equivalent of what the Tribunal found the applicant earned in China, and what the Son, as a qualified doctor, would be able to earn in Australia.
[77] CB272, [78]
In my opinion, the “income the visa applicant would be able to earn in Australia”, that is, the income a medical practitioner would earn in Australia, is “information” within the meaning of s.359A of the Act. It is evidence that, in combination with other evidentiary material, is capable of undermining, and the Tribunal actually used that information to undermine, an essential element of the visa applicants’ claim for Visitor visas. That is, the amount the Son would be able to earn in Australia as a doctor is information that undermined an essential element of the visa applicants’ claim, namely, the Son’s income as a doctor in China constituted sufficient incentive for him to return to China, rather than stay in Australia. Thus, I do not accept the Minister’s submission that the income the Son would earn as a doctor in Australia is not “information” within the meaning of s.359A of the Act.
I next turn to the Minister’s submission that if the income the Son would have earned in Australia is “information” for the purposes of s.359A of the Act, it falls within s.359A(4)(a) which provides that s.359A does not apply to information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”. The equivalent paragraph in s.424A of the Act has been considered in a number of cases. What has given some difficulty is the expression “and is just about a class or persons of which the applicant or other person is a member”. It has been held that these words do not constitute “another criterion to be met but . . . is designed to underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals (including for example, an applicant) falling within it”.[78] That is, in “considering whether certain information is specifically about an applicant or another person for the purposes of” s.359A(4)(a) of the Act, “it is not necessary for the tribunal, as a separate requirement, to make a finding that the relevant “information” is “just about a class of persons of which the applicant or other person is a member””.[79]
[78] Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 at [138] (Merkel and Hely JJ)
[79] Minister for Immigration and Citizenship v SZHXF & Anor [2008] FCAFC 36 at [19] (Tamberlin, Gyles, and Stone JJ) (emphasis in original)
The income that medically qualified persons earn in Australia is not specifically about the Son or some other person. For that reason, the “the income the visa applicant would be able to earn in Australia”, although information within the meaning of s.359A of the Act, is also information that fell within s.359A(4) of the Act. The consequence of that conclusion is that s.359A(1) did not apply, which means the Tribunal was not required to give the review applicant clear particulars of what medically qualified persons earned in Australia.
This part of the review applicant’s claims also fails.Failure to give notice?
The applicant, relying on the principles discussed by the High Court in SZBEL v Minister for Immigration and Multicultural Affairs,[80] submits the Tribunal was obliged to notify the review applicant that what the Son earned in China, compared with what the Son would be able to earn in Australia, was an issue the Tribunal considered to be relevant.[81]
[80] [2006] HCA 63; (2006) 228 CLR 152
[81] Outline Submissions for Applicant [45]
The Tribunal does not appear to have expressly put to the review applicant, or to the Son or mother, that the Son would be able to earn income in Australia, or that the income he would be able to earn in Australia would be greater than the income the Son earned in China. In my opinion, however, there was no need for the Tribunal to explicitly raise these matters with the review applicant, or the Son, or the mother. The delegate, in her decision, expressed concerns that “the applicant’s employment may not provide incentive to induce him to return to China within the validity of his visa”.[82] This raised as an issue the income the Son (and the wife) earned in China; and this could only have been relevant having regard to whether the Son (and the wife) would be able to earn income in Australia. That is, whether or not the income the Son and wife earned in China was an incentive for them to return to China necessarily had to be assessed by reference to whether they would be able to earn income in Australia, and the amount of income they would be able to earn in Australia. That this is how the review applicant, Son, and wife saw the relevance of what the Son and the wife earned in China is confirmed by their conduct before the Tribunal. As the Tribunal noted, the Son and the review applicant gave inconsistent evidence about the Son’s income in China. In his application for the Visitor visa, the Son provided evidence that he earned the equivalent of 200,000RMB per annum; but he later claimed he earned 300,000RMB, and the review applicant claimed the Son earned 600,000RMB per annum.[83] In her written application for a Visitor visa, the wife provided evidence she earned 100,000RMB, yet the Son subsequently claimed the wife earned 400,000RMB.[84]
[82] CB173
[83] CB292-273, [78]
[84] CB273, [79]
All this indicates that the review applicant and the Son were aware that the income the Son and the wife earned in China was relevant to their applications for Visitor visas; and the only relevance they could reasonably be considered to have understood the Son’s and the wife’s income in China to have had to the success of their application was that it showed that they had an incentive to return to China. That, in turn, implies they were aware that whether or not their income in China provided sufficient incentive to return to China depended, at least in part, on whether they would be able to earn income in Australia and the amount of income they would be able to earn, if they were to remain in Australia. Stated another way, the only relevance the Son and review applicant could reasonably be considered to have ascribed to the evidence they gave about the Son’s and the wife’s earnings in China is that it was of such an amount that, when compared to what they would be able to earn in Australia, they had a sufficient incentive to return to China, rather than remain in Australia.
This part of the review applicant’s claims also fails.
Failure to consider comparative purchasing power of currencies
The review applicant submits the Tribunal either failed to consider the comparative purchasing power of the Australian dollar (AUD) and the Chinese Ren Min Bi (RMB). Alternatively, if the Tribunal did consider the comparative purchasing power of the two currencies, the Tribunal’s reasoning process was illogical or irrational.
I do not agree the Tribunal did not take into account the comparative purchasing power of the AUD and the RMB. The Tribunal accepted that the AUD equivalent of 200,000 RMB per annum, namely, AUD34,700, “may provide a reasonable standard of living in China”.[85] That indicates the Tribunal was aware that AUD, when converted to RMB, had greater purchasing power in China than the equivalent AUD had in Australia.
[85] CB272, [78]
It is true the Tribunal did not rely on any evidence about the comparative purchasing power of AUD and RMB. In my opinion, however, the Tribunal was entitled to rely on its general knowledge about the comparative purchasing power of AUD when converted into RMB. It was reasonably open to the Tribunal to find, based on its general knowledge, that RMB200,000, being the equivalent of AUD34,700, although capable of providing a reasonable standard of living in China, was less than a doctor would be able to earn in Australia. That it was reasonable for the Tribunal to do so is supported by the conduct of the Son and the review applicant.
As I have already noted, the Tribunal recorded that the Son and the review applicant claimed the Son and the wife earned in China significantly more than the documentary evidence they provided with their visa application indicated they earned. That indicates that the Son acknowledged – and it is reasonable to infer the Tribunal itself recognised that the Son acknowledged – that the 200,000RMB and the 100,000RMB the Son and the review applicant represented the Son and the wife earned in China may not be sufficient incentive for them to return to China; and that it may not be sufficient incentive for them to return to China because the Son and the wife would be able to earn more in Australia.
Other matters
In his written submissions, counsel for the review applicant submits the Tribunal was illogical or irrational in making the income disparity findings, given that there was evidence that the Son and the wife lived comfortably in China. That does not establish that the finding was irrational or illogical. The Son’s and the wife’s leading a comfortable life in China does not necessarily mean the Son and wife did not consider they would be even more comfortable if they were to remain in Australia.
Conclusion on ground 3
For these reasons, ground 3 fails.
Ground 4 – reliance on review applicant’s and mother’s travel to China
Ground four of the grounds of application relates to the Tribunal’s relying on the “fact that the review applicant and his wife have recently spent time with the visa applicant and his family in China”.[86] The review applicant makes two submissions. First, he submits the review applicant’s and mother’s visiting the Son and the wife in China was “information” within the meaning of s.359A of the Act. In response, the Minister submits the review applicant’s and mother’s visiting China is not “information”, and, in any event, if it were “information”, s.359A does not apply because it is information “that the applicant gave for the purpose of the application for review” within the meaning of s.359A(4)(b) of the Act.
[86] CB274, [88]
Whether or not the review applicant’s submission that his and the mother’s visiting China is “information” within the meaning of s.359A of the Act requires that I first consider the manner in which the Tribunal relied on that information. The Tribunal does not explicitly state the reason it considered the information relevant. But it is reasonable to infer what that reason was; and the basis of that inference is the Tribunal’s noting that the review applicant and mother visited the Son “after the application was filed where it was claimed that part of the reason for the visit was to allow his parents to meet the visa applicant’s son”.[87] The relevance, therefore, the Tribunal attached to the review applicant’s and mother’s visiting China is that it undermined the visa applicants’ case to the extent that case relied on the Son’s having stated that part of the reason for his wishing to obtain a Visitor visa was to give the review applicant and mother an opportunity to see their grandchild.
[87] CB274, [85]
Given what I have found to have been the relevance the Tribunal attached to the review applicant’s and mother’s visit to China, it follows that that information was “information” within the meaning of s.359A of the Act. It was information which undermined, at least in part, the visa applicants’ claims; and it did so because it raised doubts in the Tribunal’s mind about the genuineness of the statements the Son and the wife made in their visa applications about the purpose for which they sought to obtain Visitor visas.
The next question is whether, as the Minister submits, the review applicant’s and the mother’s visiting China was information “that the applicant gave for the purpose of the application for review” within the meaning of s.359A(4)(a) of the Act. The meaning of the equivalent paragraph in s.424A(3)(a) of the Act was recently considered by the Full Federal Court in SZTGV v Minister for Immigration and Border Protection:[88]
[24] It is apparent from the various approaches taken to s 424A(3)(b) that the question is ultimately one of fact. Consistent with the reasoning of Heerey J in VWBF and SZCJD, there is nothing in the text of s 424A(3)(b) which supports any distinction between information proffered by an applicant to the Tribunal of the applicant’s own volition or elicited from an applicant by the answering of the Tribunal’s questions. In either case, the applicant may have given information to the Tribunal. Despite this, not every answer by an applicant to a question from the Tribunal will involve the applicant giving information to the Tribunal. The nature of the information, of the question asked by the Tribunal and the applicant’s answer will all be relevant to determining whether s 424A(3)(b) is engaged.
[25] Contrary to the submissions of the appellant and the two applicants in the present matters, there is no principle that complex information or information about controversial facts cannot be given by an applicant to the Tribunal by a mere affirmation in response to a question by the Tribunal. The nature of the information will be relevant, as we have said. But labelling the information as complex or simple or as about a controversial or undisputed fact does not determine the answer to the question whether s 424A(3)(b) is engaged. The complexity or simplicity of the information and whether the information relates to a controversial or undisputed fact are circumstances that inform the answer to the question whether s 424A(3)(b) is engaged, but to focus on these circumstances alone involves an incorrect focus, away from the statutory description.
[88] [2015] FCAFC 3 at [24], [25] (Perram, Jagot, and Griffiths JJ)
The Tribunal first became aware the review applicant and the mother had visited China as a result of an answer the review applicant gave to the Tribunal’s question about the last time the review applicant travelled to China. In the course of the questioning that followed, the review applicant revealed he and the mother travelled to China in February 2014.[89] The mother and the Son also confirmed to the Tribunal that the review applicant and mother had visited China in February 2014.[90]
[89] Transcript, page 6
[90] Transcript, pages 22 and 30
In my opinion, the information the review applicant provided to the Tribunal in answer to questions asked by the Tribunal to the effect that the review applicant and the mother had visited the Son and his family in China in February 2014 was information “that the applicant gave for the purpose of the application for review” within the meaning of s.359A(4)(b) of the Act. For that reason, therefore, s.359A of the Act did not apply.
The review applicant also submits that the Tribunal’s relying on the review applicant’s and mother’s visit to China was an irrelevant consideration, and the Tribunal made a jurisdictional error by relying on that information.[91] The review applicant relies on FTZK v Minister for Immigration and Border Protection.[92]
[91] Amended application, [4]; Outline Submissions for Applicant, [49]-[54]
[92] (2014) 88 ALJR 754
The question in that case was whether the Administrative Appeals Tribunal (AAT) made a jurisdictional error in concluding that Art.1F(b) of the Refugees Convention[93] applied to the applicant in that case. That article provides that the Convention does not apply “to any person with respect to whom there are serious reasons for considering . . . he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”. One of the issues was whether, in concluding it was satisfied there were serious reasons for considering that the applicant committed a serious crime in China, the AAT made a jurisdictional error. In three separate reasons for judgment, the High Court held the AAT did make a jurisdictional error. The review applicant particularly relies on the reasons for judgment of Bell and Crennan JJ.
[93] Being the Convention Relating to the Status of Refugees as modified by the 1967 Protocol Relating to Refugees.
Bell and Crennan JJ held the AAT made a jurisdictional error because it relied on evidence of the applicant’s conduct in Australia, and on lies the applicant told, without making any findings about how that conduct and those lies were connected with the crimes for which the AAT was satisfied there were serious reasons for considering the applicant had committed. The relevant jurisdictional error their Honours held the AAT made was its misconstruing its functions and powers under Art.1F(b) of the Refugees Convention to determine whether the applicant was excluded from Australia’s protection obligations;[94] and their Honours so held because, under Art.1F(b), the AAT was required “to ask of the evidence before it whether that evidence was probative of “serious reasons for considering” that the appellant had committed one or more of the alleged crimes”.[95]
[94] (2014) 88 ALJR 754 at [97]
[95] (2014) 88 ALJR 754 at [91]
Although the review applicant does not rely on the two other judgments delivered in FTZK, it will be necessary to refer to them. First, there is the judgment of French CJ and Gageler J. Their Honours held the AAT had made a jurisdictional error because the AAT’s “process of reasoning did not comply with the logical framework imposed on its decision-making by Art 1F(b)”; and the AAT “did not respond to the question it was required to ask in order to determine whether Art 1F(b) applied”.[96] Hayne J, on the other hand, concluded that the matters on which the AAT relied for concluding there were “serious reasons for considering” the applicant had committed a crime were not logically probative of the appellant’s having committed the crimes, and “because they were not logically probative of the appellant’s having committed the crimes alleged, and because they therefore could not be a reason for considering that he had done so, the Tribunal’s reliance upon them must show that the Tribunal misconstrued the test it had to apply”.[97]
[96] (2014) 88 ALJR 754 at [19]
[97] (2014) 88 ALJR 754 at [42]
Counsel for the review applicant submitted that FTZK is authority for the proposition that the Tribunal will make a jurisdictional error if there cannot be detected in its reasons for decision a logical link between material on which it relies, and the finding the Tribunal makes on the basis of that material; and that the jurisdictional error the Tribunal will make in such circumstances is the taking into account of irrelevant matters. I do not agree with counsel’s submissions. FTZK is not authority for any such broad proposition. The jurisdictional error in FTZK all three judgments found the AAT made was that the AAT failed to address the question it was required to address. It is true that, in the particular circumstances of a case, it may be appropriate for the Court to conclude from the absence of particular reasoning that the Tribunal may have misunderstood the tasks it was required to undertake; but FTZK is not authority for the proposition that the mere absence from the face of the Tribunal’s reasons for decision of reasoning that links an item of information to a finding necessarily means the Tribunal has taken into account an irrelevant consideration or otherwise misunderstood the tasks it was required to undertake.
In the case before me, the Tribunal did not explicitly articulate why it considered the review applicant’s and mother’s visiting China to be a significant factor that indicated the Son and the wife did not intend to stay temporarily in Australia. It is, however, readily apparent why the Tribunal did regard it as significant. As I have already noted, the Tribunal recorded that the review applicant and the mother visited China after the visa applicants lodged the application for a Visitor visa in circumstances where the applicant had claimed “that part of the reason for the visit was to allow his parents to meet the visa applicant’s son”.[98] The Tribunal, as it was reasonably entitled to do, was of the view that the review applicant’s and mother’s visiting the applicant in China cast doubt on the genuineness of the purpose for which the Son, in his application for a Visitor visa, stated he wished to obtain a Visitor visa, namely, for his parents to see their grandchild.
[98] CB274, [85]
For these reasons, ground 4 also fails.
Ground 5
Ground five of the grounds of application relates to the Tribunal’s relying on “the fact that they [the visa applicants] have made a significant financial investment in property in Australia”, and to the Tribunal’s finding that such property investment “provides a significant incentive for the visa applicants to remain in Australia”.[99] The review applicant submits the Tribunal made two jurisdictional errors in relying on these matters. First, he submits there is no logical connection between a person investing in property in Australia and the person intending to overstay a tourist visa, and as a consequence, becoming an unlawful non-citizen. Second, the Tribunal overlooked that if the visa applicants were to stay beyond the lawful period prescribed by the Visitor visas, if they were granted, the applicants would become unlawful citizens and be detained in immigration detention; and it does not explain how, in those circumstances, the visa applicants could remain lawfully in Australia to enjoy their “significant financial investments”.
[99] CB274, [88]
If the Son’s contributing money towards the purchase of the house was the only factor on which the Tribunal relied for concluding it was not satisfied the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the Visitor visa were to be granted, there would be force in the review applicant’s submission that there was no logical connection between investing in Australia, and a person not genuinely intending to stay temporarily in Australia. But that was not the only factor on which the Tribunal relied. Of relevance to the Tribunal were matters associated with the acquisition of the property in question. It was a four-bedroom house, it was purchased in the name of the review applicant and the wife, and the review applicant provided no money towards the purchase. These additional matters, considered alone, were matters on which it was reasonably open to the Tribunal to rely as indicating the visa applicants did not genuinely intend to stay temporarily in Australia. It was also reasonably open to the Tribunal to assign greater probative value to these aspects of the acquisition of the property in light of all the other matters on which the Tribunal relied, such as the credibility concerns the Tribunal had in relation to the Son, review applicant, and the mother. I do not, therefore, accept the review applicant’s first submission in support of ground 5 of the grounds of application.
I also do not accept the second of the applicant’s two submissions in support of ground 5. I am not prepared to find the Tribunal did not address its mind to what would occur if the Son and wife were to overstay the Visitor visa. It had before it the example of the review applicant. He entered Australia apparently without an intention of staying temporarily in Australia, yet he was able to obtain a Protection visa and, ultimately, citizenship. There is every reason to find that the Tribunal was aware there were options available to the Son and the wife to seek to obtain the favourable outcomes the review applicant had secured without the Son’s and the wife’s necessarily becoming unlawful non-citizens, and that the visa applicants believed they had some prospect of securing those outcomes.
Ground 5, therefore, also fails.
Ground 6 – reliance on review applicant’s immigration history
Ground 6 relates to the Tribunal’s giving weight to the review applicant’s having “used the tourist visa to enter Australia when his intention was to seek a protection visa and reside permanently in Australia” when considering whether the visa applicants “genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted”.[100] The review applicant submits that, in making this finding, the Tribunal made a jurisdictional error for three reasons:
a)First, the review applicant’s state of mind or intention when he arrived in Australia in January 2007 is not relevant to the Son’s state of mind or intention in 2014.
b)Second, the review applicant’s state of mind or intention when he arrived in Australia in 2007 is not relevant to the wife’s state of mind or intention in 2014.
c)The connection between the review applicant’s state of mind as at January 2007 and the wife’s state of mind in 2014 was “information” within the meaning of s.359A of the Act, and the Tribunal failed to provide particulars of that information to the visa applicants.
[100] CB272, [75]
The question the first submission raises is whether it was reasonably open to the Tribunal to consider as relevant to whether the Son and the wife had a genuine intention of staying temporarily in Australia the fact that the review applicant had previously entered Australia on a tourist visa in circumstances where the review applicant did not hold a genuine intention of staying temporarily. Given the nature of the relationship between the Son and the review applicant, that question is to be answered in the affirmative. That is so for at least two reasons. First, it is reasonable to infer, at least where there is no evidence of disharmony, that a son would like to live in the same country as his father, particularly where, as in the case before me, there is a young grandchild. Second, because the review applicant secured Australian citizenship by a method whose first step was applying for a tourist visa, it could reasonably be inferred that the Son himself might consider that it would be a method that it would be reasonable for him to follow.
This way of framing the relevance of the circumstances of the review applicant’s entry into Australia to the visa applicants’ intentions, however, is artificial; its relevance must be assessed by reference to the other circumstances on which the Tribunal relied. These include the fact the Son was included in the mother’s application for a partner visa, the inconsistent evidence the review applicant, the Son, and the mother gave about the income the Son and the wife earned in China, the inconsistent evidence the review applicant and the mother gave about their relationship before the review applicant entered Australia in 2007, and the purchase of a four-bedroom house in the name of the review applicant and the wife in circumstances where the review applicant did not contribute any money towards the purchase price. When all these matters are taken into account, it can with greater confidence be said that it was reasonably open to the Tribunal to consider the review applicant’s immigration history to be relevant to whether the applicant had a genuine intention of staying temporarily in Australia.
As to the review applicant’s second submission, given it was reasonably open to the Tribunal to find that the review applicant’s state of mind in 2007 was relevant to the Son’s state of mind or intention in 2014, it was also reasonably open to the Tribunal to find, on the basis of what the Tribunal found to be the Son’s state of mind in 2014, also to find that the wife shared the Son’s state of mind in 2014. The basis of such inference is the fact that the Son, the wife, and the child are a family unit, and it is a reasonable generalisation that most families act as a unit in such matters as where they choose to live.
As to the review applicant’s third submission, the review applicant’s intention when he applied for a tourist visa in 2007 is not “information” within the meaning of s.359A. The review applicant’s state of mind was a matter of inference for the Tribunal; it was not “evidentiary material or documentation”.[101]
[101] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]
Ground 6, therefore, fails.
Ground 7 – misunderstanding the mother’s claim
The seventh ground on which the review applicant relies arises out of paragraph 81 of the Tribunal’s reasons:[102]
There are a number of conditions which would encourage the applicant to remain in Australia or fail to comply with the visa conditions. The visa applicant’s parents reside in Australia. The visa applicant’s mother claims that she has had a medical condition treated in China and she wants her son to be with her so that he can provide some care for her. This, together with the relationship the visa applicant has with his parents provides significant incentive for the visa applicant to remain in Australia.
[102] CB273, [81]
The review applicant submits this misstated the mother’s evidence. The review applicant submits that paragraph 81 of the Tribunal’s reasons for decision incorrectly reflects the mother’s evidence which, the review applicant submits, the Tribunal accurately recorded in paragraph 38 of the Tribunal’s reasons. In that paragraph, the Tribunal said the mother said she wanted the Son “to visit her as she had been sick with varicose veins and other health issues”.[103] The review applicant submits the Tribunal decided the application before it partly on the basis of a claim the mother did not make.[104] The Minister, on the other hand, submits the review applicant has misunderstood the Tribunal’s findings. The resolution of these competing submissions requires me to consider the evidence that was given before the Tribunal by the mother. The mother’s evidence, however, must be viewed in the context of evidence the review applicant gave about the mother’s medical condition as it related to the purpose of the applicant’s visit to Australia.
[103] CB267, [38]
[104] Outline Submissions for Applicant, [71]
The review applicant gave evidence of the mother’s medical condition towards the end of his evidence, and in particular, when the review applicant was asked whether he wished to say anything further about matters the Tribunal put to him were inconsistent:[105]
[105] Transcript, page 19
Mem: . . . . Do you wish to say anything further about them?
LY:Yes.
Mem:Please say it …LY: And previously I just said a half of what I wanted to say. I just wanted to prove that at this time my son just wants to be with me and with his mother because his mother in China had a big operation.
Mem:You want your son to visit his mother because his mother had a big operation is that what you’re saying?
LY:Yes. Yes, and I always tell my son, I said the … is really good and my son still have concerns.
Mem:So your wife has had an operation, is that what you’re saying now?
LY:Yes.
Mem:Well why didn’t you say that before?
LY:Because this time … China. Because this time he went back and … …
Mem:Well when I asked you at the start of the hearing why your son wanted to come to Australia, it was just to visit me [sic] and his mother. You didn’t mention anything about your mother, sorry your wife recently having had an operation and your son wanting to visit her because of that.
Shortly after the review applicant gave this evidence, the mother gave evidence, and one of the first questions the Tribunal asked her was “what’s the reason for him [the Son] to coming to Australia?” The mother answered:[106]
Well because this time … I was sick, I had an operation for the varicose veins and because I’m over 60 I have high blood pressure and heart problems so he wants to visit.
[106] Transcript, page 20
Paragraph 81 of the Tribunal’s reasons does not literally reflect the evidence the mother gave. The transcript records the mother saying that the Son “wants to visit”; the mother did not say that she wanted the Son to be with her so that he can provide some care for her. Two questions arise. The first is whether it was reasonably open to the Tribunal to characterise the mother’s evidence as evidence to the effect that she wanted the Son to be with her because she wanted the Son to provide care for her. The second is, assuming the mother’s evidence could not reasonably be so characterised, whether the Tribunal made a jurisdictional error.
The mother’s evidence was not simply that the Son wanted to visit her; the mother said she was sixty years of age, and she had high blood pressure and heart problems. The mother said: “so he want to visit”. The mother, therefore, linked the Son’s desire to visit her with her medical condition. Given the Son is medically qualified, it was reasonably open to the Tribunal to construe this part of the mother’s evidence to be that she wanted the Son to be with her to provide some care for her.
This construction is supported by the review applicant’s evidence. The review applicant said the Son wanted to be with the review applicant and the mother because the mother had an operation. The review applicant also said that he had informed the Son the mother was “really good” but the Son “still have concerns”. It was reasonable for the Tribunal to have considered that the concerns the father said the Son had were concerns the Son held having regard to his knowledge and experience as a medical practitioner; and that the Son’s desire to come to Australia was not simply to visit the mother, but to be present with her and thus be in a position to observe first hand his mother’s health having regard to the knowledge and experience the Son has acquired as a medical practitioner.
If, contrary to my conclusion, it was not reasonably open to the Tribunal to so characterise the mother’s evidence, and the Tribunal, therefore, misunderstood the mother’s evidence, whether or not that means the Tribunal made a jurisdictional error depends on its materiality. In my opinion, the error, if that is what it was, was not material. There is little difference between evidence to the effect that the Son wanted to visit because the mother suffered from medical conditions, and evidence that the mother wanted the Son to be with her to provide care for her.
Ground 7, therefore, also fails.
Ground 8 – Son’s and wife’s incomes in China
The eighth ground on which the review applicant relies arises out of the Tribunal’s findings that “an income of only AU$34,700 would not appear to provide any significant incentive for the visa applicant to return to China at the end of any visit”,[107] and that an income of around AUD17,330 “does not provide a significant incentive for the visa applicant’s wife to return to China at the end of any visit to Australia”.[108] The review applicant makes three submissions. First, these findings are based on reasoning which contains as a premise the purchasing power of the Son’s and the wife’s income, and that the purchasing power was “information” within the meaning of s.359A of the Act of which the Tribunal did not give to the review applicant clear particulars, as it was required to do under s.359A(1) of the Act.[109] Second, the Tribunal did not compare the income it found the Son and the wife earned in China with the income they would be able to earn in Australia.[110] Third, the Tribunal’s findings were illogical.[111]
[107] CB272, [78]
[108] CB273, [79]
[109] Outline Submissions for Applicant, [74]
[110] Outline Submissions for Applicant, [75]
[111] Outline Submissions for Applicant, [76]
I do not accept that the “purchasing power” of the Son and the wife was “information” within the meaning of s.359A of the Act. First, the purchasing power of the Son’s and the wife’s income would itself be premised on the purchasing power of the denomination of the currency of the income the Tribunal found the Son and the wife earned in China. The purchasing power of any given currency, however, is a conclusion that could only be arrived at by inference, probably involving statistical reasoning, based on a mass of data and a host of assumptions; it is not itself “evidentiary material or documentation”.[112] Even if the purchasing power of money was “information”, it would be information that “is not specifically about the applicant” within the meaning of s.359A(4)(a) of the Act. Section 359A of the Act, therefore, would not apply.
[112] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]
As for the review applicant’s second submission, for reasons I have already given, it is reasonable to infer, and I am not prepared to find to the contrary, that the Tribunal did consider what the Son would earn if he remained in Australia. It is similarly reasonable to infer, and I am not prepared to find to the contrary, that the Tribunal considered what the wife would be able to earn in Australia. It is inherent in the Tribunal’s findings that the incomes the Son and the wife earned in China was insufficient incentive for them to return to China.
As for the review applicant’s third submission, I agree it would be illogical if the Tribunal member had concluded the Son’s and the wife’s income in China did not offer an incentive to return to China without the Tribunal considering the income the Son and the wife would be able to earn in Australia. I am not prepared to find, however, the Tribunal so concluded. The very finding itself implies the Tribunal must have considered what the Son and the wife would be able to earn if they remained in Australia.
Ground 2 – failure to properly treat the wife’s claim
This is the last of the grounds on which counsel for the review applicant made submissions. Ground 2, at least as stated in the amended application, raises three distinct grounds. The first is that the Tribunal made a jurisdictional error by finding that the Son’s having been a party to the mother’s partner visa application was a significant factor that would indicate the wife did not intend to stay temporarily in Australia. The second is that the Tribunal failed to take into account the fact that the wife never applied to, or indicated an intention to, live permanently in Australia. And the third ground is that the Tribunal did not properly or separately evaluate the wife’s visa application.
The Tribunal did include the Son’s having previously applied for permanent residency as one of the significant factors that indicated that both the Son and the wife did not intend to stay temporarily in Australia. The Tribunal, however, made no jurisdictional error in doing so. It was reasonably open to the Tribunal to conclude that that factor was probative of the wife’s intentions. If, as I find, it was reasonably open to the Tribunal to find that the Son’s having previously applied for permanent residency in Australia was probative of the Son’s not having a genuine intention to remain temporarily in Australia, it was also reasonably open to the Tribunal to find that the Son’s not having such intention was probative of the wife’s also not having such intention. The basis of such inference is the fact that the Son, the wife, and the child are a family unit, and it is a reasonable generalisation that most families act as a unit in such matters as where they choose to live.
As for the second of the three submissions, it is true the Tribunal did not in terms reason that the wife did not, like the Son, previously apply for permanent residency. The wife’s not having previously applied for permanent residency, when considered in light of the evidence that was before the Tribunal, could only reasonably have been regarded as neutral on the question whether the wife had a genuine intention of staying in Australia temporarily.
I do not accept the third of the review applicant’s submissions. The Tribunal did consider matters that were specific to the wife. The Tribunal referred to the wife’s income in China,[113] to her having family in China,[114] and to the purchase of the property in Australia having been made in the names of the wife and the review applicant.[115]
[113] CB273, [79]
[114] CB272, [77]
[115] CB273, [83]
Ground 11 – incorrect attribution of evidence
This ground relates to the Tribunal’s incorrectly recording in paragraph 81 of its reasons for decision that it was the Son, rather than the review applicant, who said that the reason why a four-bedroom property was being purchased was because “it was impossible to find property in Australia with less than three bedroom, and they were in a hurry to purchase it, and they didn’t really think about it”.[116] The review applicant submits this error of fact constituted a jurisdictional error because it had a consequential impact on the Tribunal’s assessment of the Son’s credibility.[117]
[116] CB273, [83]
[117] Outline Submissions for Applicant, [81]
The Tribunal made an error; it was the review applicant who gave evidence to the effect set out in paragraph 81 of the Tribunal’s reasons for decision. That is evident from the following passage from the transcript:[118]
[118] Transcript, page 10
Mem:If it’s only you and your wife who live together, why are you buying a 4 bedroom place to live in?
LY:When you buy a property … … had a look and we thought this property looks good didn’t think too much.
Mem:You didn’t think too much?
LY:No, at that time we … bought some property, we were in a hurry, so did not think about … And I think in Australia the properties have at least 3 bedrooms or 4 bedrooms.
What sort of error did the Tribunal make? There are two possibilities. One is that by using the expression “visa applicant”, the Tribunal in fact mistakenly intended to refer to the Son as having given the evidence. That is an error of mistaken identity; the Tribunal mistakenly thought the Son, rather than the review applicant, described the property as a three-bedroom property. The other possibility is the Tribunal made a typographical error. That is, the Tribunal intended to refer to the review applicant, but mistakenly used the words “visa applicant”, rather than “review applicant”, to refer to the review applicant. I am not satisfied the Tribunal made an error of identity; it is more likely the Tribunal made a typographical error. The sentence containing the error immediately follows in which the Tribunal correctly refers to the review applicant and the mother wishing to live in the property.
In any event, even if the Tribunal made a mistake of identity, I am not satisfied the Tribunal relied on this aspect of the evidence as a ground for doubting the credibility of the Son. The Tribunal identified in a separate section of the reasons the matters on which it relied for doubting the credibility of the Son, the review applicant, and the mother.
Ground 11, therefore, also fails.
Disposition
The review applicant has not succeeded on any of the grounds. The applicant does not rely on grounds 1, 9, and 10. I propose, therefore, to dismiss the application. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 22 July 2016