WANG and Anor v Minister for Immigration
[2019] FCCA 2146
•5 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WANG & ANOR v MINISTER FOR IMMIGRATION | [2019] FCCA 2146 |
| Catchwords: MIGRATION – Cancellation of the first applicant’s Employer Nomination (subclass 186) visa under s.128 of the Migration Act 1958 (Cth) – whether the second applicant should be removed as a party to the proceedings – whether the Court should await the outcome of the revocation decision – whether delegate failed to give proper, genuine and realistic consideration to the applicants’ circumstances – delegate’s reasons not to be read with a keen eye for error – whether the proceedings should be dismissed – no jurisdictional error made out – application dismissed. |
| Legislation: Federal Circuit Court Rules 2011 (Cth), rr.11.01, 44.12 |
| Cases cited: Thapaliya v Minister for Immigration [2018] FCCA 3278 |
| First Applicant: | ZHIJUN WANG |
| Second Applicant: | GUANTONG WANG |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | SYG 53 of 2019 |
| Judgment of: | Judge Street |
| Hearing date: | 5 August 2019 |
| Date of Last Submission: | 5 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 5 August 2019 |
REPRESENTATION
| Counsel for the Applicants: | Mr O Jones |
| Solicitors for the Applicants: | Lazarus Legal Group |
| Solicitors for the Respondent: | Mr H Gao Australian Government Solicitor |
ORDERS
The name of the respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The request by the respondent to remove the second applicant as a party to the proceedings is refused.
The application is dismissed.
The applicants pay the respondent’s costs fixed in the amount of $6,000.00.
DATE OF ORDERS: 5 August 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 53 of 2019
| ZHIJUN WANG |
First Applicant
| GUANTONG WANG |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a non-tribunal reviewable decision of a delegate of the respondent made on 6 December 2018 to cancel the first applicant’s Employer Nomination (subclass 186) visa under s.128 of the Act.
At the outset of the proceedings, the Court corrected the name of the respondent.
The second applicant
The Court explored the issue in respect of whether the second applicant should be removed as a party to the proceedings. Mr Gao, solicitor on behalf of the respondent, correctly identified that the second applicant is not a person entitled to seek review of the decision dated 6 December 2018 and, as such, is not a person entitled to bring the proceedings. Mr Gao also foreshadowed that he may seek costs against the second applicant if she remains a party and the applicants are unsuccessful.
In those circumstances, Mr Jones of counsel, on behalf of the applicants, was the subject of enquiry by the Court as to whether he wishes to seek the removal of the second applicant. Mr Jones identified that he had an argument he wished to agitate about the meaning of “proper parties” and “necessary parties”, as well as the decision of Thapaliya v Minister for Immigration [2018] FCCA 3278.
Rule 11.01(4) of the Federal Circuit Court Rules 2011 (Cth) (“the Rules”) makes clear that the joinder of a person who is not a necessary or proper party does not invalidate the proceedings. The joinder of the second applicant, who was identified as a member of the family unit in the first applicant’s visa application which is now the subject of cancellation, has a benefit by reason of being joined to these proceedings which is the ease by which a bridging visa may be obtained. The second applicant’s joinder is not only understandable in that regard but is one in respect of which, if she were then made the subject of an application to be removed as a party to the proceedings, this Court would readily grant relief to preserve the subject matter of the proceedings if persuaded there was an appropriate prima facie case. In these circumstances, the mere fact that the second applicant is not a necessary or proper party is not a sufficient basis upon which the Court is prepared to remove the second applicant from the proceedings.
Mr Jones wished to also formally record a challenge to the correct principles in respect of “necessary” and “proper” parties. The Court made it clear to Mr Jones that this matter was not one where the Court was inclined to accept the application for removal of the second applicant because of the second applicant being able to bring herself within the entitlements of parties who may challenge the delegate’s decision.
The Court is not satisfied that it is appropriate to remove the second applicant because of the pragmatic and practical benefits that the second applicant may obtain in respect of a bridging visa and the potential for her to fall within the subject matter of the proceedings which this Court has jurisdiction to preserve pending determination of the proceedings.
The Court would not, however, impose that outcome upon the second applicant if she wished to be removed as it would avoid, for her, the exposure to costs. Mr Jones made clear that he did not seek the removal of the second applicant. For the reasons given, the Court is not satisfied that it is appropriate to remove the second applicant.
Revocation
A further matter which should be addressed at the outset is that the body of the letter notifying the first applicant of the delegate’s decision identified that a request could be made by the first applicant for revocation of the delegate’s decision if lodged within 28 days of receiving the notice. It is apparent that such an application was made by the first applicant for revocation of the delegate’s decision at Court Book page 47.
From the bar table, the Court has been informed that there is still on foot and reserved a revocation decision. No step was taken by the respondent to seek to have the proceedings dismissed, either as an abuse of process or under r.44.12 of the Rules. The respondent identified that it had accepted the delegate’s decision is a migration decision falling within this Court’s jurisdiction. That proposition is clearly correct. The respondent went further and identified that, if there was a jurisdictional error in the delegate’s decision of 6 December 2018, then, notwithstanding the revocation request and deliberations that are still on foot, the Minister would not contend that there is any discretionary ground why relief should not be granted. Further, the Minister consented to orders in which the show cause hearing under r.44.12 of the Rules was dispensed with. As a result of the Minister’s decision, the Court will determine the issue of whether there is any jurisdictional error in the delegate’s decision as contended by the applicants.
The Court, however, identifies that in the future it would expect there to be brought forward an application for the Court to consider whether or not it should fix the matter for hearing and/or determine proceedings that are the subject of a further merits review. In principle, it is not appropriate for this Court’s jurisdiction to be engaged where there is a further merits review application still on foot. Such proceedings, on their face, are capable of being dismissed as being an abuse of process. The fact that one might seek, in due course, to challenge the revocation decision and the earlier decision together, is not a basis upon which proceedings should ordinarily be brought where there is a further merits review still on foot.
Indeed, had the issue been drawn to the Court’s attention, there are other steps which may have been taken to await the outcome of the revocation decision before fixing for hearing proceedings seeking to challenge those decisions. The Court expects any such issue in the future to be brought forward so that the Court can consider what power should be exercised where there is still on foot and reserved a revocation decision.
The delegate’s decision
On 30 June 2014, the first applicant applied for an Employer Nomination (subclass 186) visa. The first applicant’s nominator was a particular entity which nominated the first applicant for a position as Chief Executive Officer (“CEO”) which paid a particular amount per annum and employed the first applicant at a particular location. On 6 November 2014, the first applicant’s visa application was approved. On 18 November 2014, the first applicant was granted the visa.
The delegate referred to international movement records which identify the first applicant departing Australia on 3 June 2014 and not returning to Australia until 1 September 2015. The delegate identified that the applicant then departed Australia on 3 September 2015 and has not returned to Australia since that date. Part of the movement records which have been tendered in the proceedings relate to the second applicant. Those records make patent that the second applicant arrived in Australia on 14 February 2013.
The delegate correctly identified that the first respondent was granted a visa on the basis that he would be employed by his nominator at an address in Australia. The delegate was satisfied that the first applicant is no longer employed by his nominator at the nominated address has not been employed at that address for more than three years.
In those circumstances, the delegate was satisfied that the decision to grant the first applicant the visa was based, at least in part, on a fact or circumstance which no longer applied. Therefore, the delegate was satisfied that there was a ground to cancel the first applicant’s visa under s.116(1)(a) of the Act.
The delegate referred to s.128(a)(i) of the Act. The delegate was satisfied that there is a ground for cancelling the first applicant’s visa under s 116 of the Act.
The delegate referred to s 128(a)(ii) of the Act. The delegate referred to the issue of whether it was appropriate to cancel the first applicant’s visa in accordance with Subdivision F of the Act. The delegate expressly referred to having regard to all the circumstances of the case and being satisfied that it was appropriate to cancel the first applicant’s visa in accordance with Subdivision F of the Act. The delegate also referred to considering it appropriate to cancel the first applicant’s visa without notice under s.128 of the Act.
The delegate referred to s 128(b) of the Act. Based on the Departmental international movement records, the delegate found that the first applicant was outside Australia, having departed Australia on 3 September 2015 and not re-entered Australia since his departure.
The delegate referred to being satisfied that there is a ground for cancelling the first applicant’s visa under s.116 of the Act, the requirements of s.128 of the Act and then the need to consider the delegate’s residual discretion.
The delegate referred to the purpose of the first applicant’s travel to and stay in Australia. The delegate also referred to the extent of the first applicant’s compliance with the visa conditions.
The delegate also referred to the degree of hardship which may be caused to the first applicant and any family members. The delegate referred to the first applicant having been outside of Australia since 3 September 2015. The delegate also referred to the fact that, according to Department records, most of the members of the first applicant’s family unit who also hold Employer Nomination (subclass 186) visas are also outside Australia. The Department records included movement records which make plain that the second applicant has been in Australia since 2013.
In respect of the members of the family unit outside Australia, the delegate referred to them not being likely to have formed extensive ties to Australia. The delegate was not satisfied that cancellation of their visas would cause them a significant degree of hardship.
The delegate referred to there being one exception, however, being the second applicant who was identified both by name and date of birth. The delegate referred to movement records in respect of the second applicant. It is common ground that those movement records were before the delegate. Based on those movement records, the delegate referred to the second applicant having resided continuously in Australia since she last entered Australia on 30 January 2017. The delegate also referred to the fact that the second applicant had lodged a citizenship application in July 2018 and identified as being a student.
The delegate accepted that cancellation of the second applicant’s visa may cause some degree of hardship for her in the short term. The delegate, however, took into account that it would be open for the second applicant to apply for another visa, the purpose of which would be more closely aligned to the purpose of her stay in Australia. The delegate referred to giving some weight to this consideration in favour of the first applicant.
The delegate referred to the circumstances in which the ground for cancellation arose. The delegate also referred to the first applicant’s past and present behaviour towards the Department. The delegate also referred to any consequential cancellations which may occur and identified these as being the cancellation of the visas of members of the family unit, including the second applicant.
The delegate again referred to the fact that the dependent visa holders may apply for visas which are aligned with their current or future need to travel to, or stay in, Australia. Accordingly, the delegate gave this consideration minimal weight in favour of the first applicant.
The delegate referred to legal consequences of a decision to cancel the first applicant’s visa. The delegate also referred to Australia’s international obligations and considered whether there were any other relevant matters.
In these circumstances, the delegate decided to cancel the first applicant’s visa.
The ground
On 9 January 2019, these proceedings were commenced by the applicants. On 6 February 2019, orders were made by this Court for the filing of any amended application, affidavit evidence and submissions. On 24 July 2019, the applicants filed submissions. On 30 July 2019, the applicant filed an affidavit of Phillip Silver affirmed 30 July 2019.
The ground in the originating application is as follows:
1. The Delegate made a jurisdictional error by failing to give proper, genuine and realistic consideration to the Applicants circumstances, as the Delegate failed to undertake active intellectual engagement with the actual date from which the Second Applicant has resided in Australia, which has been since 5 August 2013 to present, and with the significance of the degree of hardship that would flow to the Second Applicant from the cancellation of the subclass 186 visas.
Particulars
The delegate relied on his assertion that the Second Applicant “has resided in Australia continuously since she last entered Australia on 30 January 2017.”
The Delegate failed to consider that the Second Applicant had resided in Australia from 5 August 2013 to the date of cancellation of the visa, which included attending schooling in Australia for years 10-12 during this period.
The Court has also had the benefit of receiving submissions, both written and orally, from Mr Jones on behalf of the applicants and submissions from the respondent.
The kernel of Mr Jones’ submission of alleged jurisdictional error is a failure by the delegate to give proper, genuine and realistic consideration to the hardship imposed upon the second applicant. Mr Jones submitted that the second applicant has resided in Australia since 5 August 2013 to the date of cancellation of the visa, including attending school during this period. Mr Jones referred to the delegate’s language in the decision which allegedly focused upon the second applicant’s residence in Australia continuously since she last re-entered Australia on 30 January 2017.
Mr Jones drew attention to the fact that the second applicant has been resident in Australia for longer than since 30 January 2017, in accordance with the movement records. Mr Jones submitted that, had there been a real or genuine engagement by the delegate with the issue of hardship in relation to the second applicant, one would expect a reference to the period during which the second applicant had been resident in Australia, the second applicant’s pursuit of her schooling and the extent of the second applicant’s ties to Australia. Mr Jones submitted that the lack of such references indicates jurisdictional error by the delegate.
It is clear that the delegate gave some weight to the hardship that would be caused to the second applicant and accepted that the second applicant would be the subject of hardship. A fair reading of the delegate’s reasons should not confine the period during which the second applicant has been in Australia to being 30 January 2017 onwards. The delegate’s reasons are not to be read with a keen eye for error. It is apparent that the delegate had before it the movement records to which reference has earlier been made.
In circumstances where the delegate has referred to the second applicant’s last re-entry into Australia, the second applicant’s application for citizenship and the second applicant being a student, there is no basis to conclude that there was not a real, proper and genuine engagement by the delegate with the issue of hardship in respect of the second applicant. Such a proposition is inconsistent with the acknowledgement by the delegate of giving some weight in favour of that issue to the first applicant and the express recognition that cancellation of the first applicant’s visa would probably cause some degree of hardship for the second applicant. The observations made by the delegate in relation to the second applicant’s ability to apply for other visas are also consistent with a real and genuine engagement with that issue.
Insofar as the particulars alleged that the delegate failed to consider that the second applicant has resided in Australia from 5 August 2013 to the date of cancellation of the first applicant’s visa, Mr Jones appeared, in the course of submissions, to accept that the Court would infer that the delegate would have had regard to the movement records in determining the issue of hardship. That is an inference which the Court draws from the material before the Court. It is apparent that the delegate took into account the movement records, the second applicant’s age and that the second applicant had been a student. Those inferences are further supported by the delegate’s reference to the second applicant’s date of birth and her age. No jurisdictional error as alleged in the application is made out.
An issue now arises as to whether or not the proceedings should now be dismissed. Neither party has submitted that the Court should dispose of these proceedings, other than that the ordinary consequence of orders follow. This is an unsatisfactory course as it leaves the parties in a position where it is likely that there is to be a further decision made on the revocation which could then give rise to occupying the time and resources of this Court, which should not ordinarily occur.
As a matter of case management, if there is such a dual issue, it should be one in respect of which the existence of a revocation proceeding should have been clearly drawn to the Court’s attention so that the Court could consider whether or not it should deal with all matters in one hearing rather than the likely consequence that there now may be further litigation before this Court involving the same parties and in substance the same subject matter. As unfortunate as that may be, neither party has asked the Court to take any course other than to make final orders which would follow from the reasons the Court has delivered.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 2 September 2019
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