Wang & Ors v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] HCATrans 218

[2022] HCATrans 218

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M52 of 2022

B e t w e e n -

JIANDONG WANG

First Plaintiff

YUNPING HUANG

Second Plaintiff

RUOXIAO WANG

Third Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 DECEMBER 2022, AT 9.16 AM

Copyright in the High Court of Australia

HIS HONOUR:   By application dated 17 August 2022, the plaintiffs seek constitutional or other writs. For the reasons that I now publish, and pursuant to rule 25.09.1 of the High Court Rules 2004 (Cth), I would dismiss the application without listing it for hearing.

The orders are:

1.The application be dismissed.

2.The first plaintiff pay the costs of the respondent.

I publish those orders.  I direct that the reasons as published be incorporated into the transcript.

The first plaintiff was the primary applicant for a Business Skills (Provisional) (class EB) Business Innovation and Investment (Provisional) (subclass 188) visa.  The second and third plaintiffs, who are members of the first plaintiff’s family, were dependant applicants.

On 11 September 2020, a delegate of the Minister (“the first delegate”) refused the first plaintiff’s application for the Business Innovation and Investment visa. The ground of refusal was that the delegate was not satisfied of compliance with cl 188.211 of Sch 2 of the Migration Regulations 1994 (Cth). That clause requires that:

“The applicant, and the applicant’s spouse or de facto partner, do not have a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia.”

Importantly, cl 188.211 is plainly formulated in negative terms: the delegate must be satisfied that there is not a relevant history of such involvement.

On 23 February 2021, this Court made orders, by consent of the parties, quashing the 11 September 2020 decision of the Minister and remitting the Business Innovation and Investment visa application to the Minister to be determined according to law. This Court noted the Minister’s concession that the Minister fell into jurisdictional error in failing to consider certain information provided by the first plaintiff in breach of ss 54(1) and 55(1) of the Migration Act 1958 (Cth).

Following the remittal of the application, an officer of the Department of Home Affairs sent the first plaintiff an invitation to comment on adverse information that had since been received (“the adverse information notice”)[1].  The notice referred to publicly available information as well as submissions and supporting documents provided by the first plaintiff that had been received on 23 October 2019, 25 October 2019 and 28 October 2019.  The first plaintiff was given 28 days to respond to the notice.  An extension of a further 28 days was subsequently granted.

[1]       See Migration Act 1958(Cth), s 57.

In the adverse information notice, the officer observed that publicly available information appeared to indicate that companies with which the first plaintiff and his spouse were associated had been found to have illegally used land for construction and property development projects without approval from the relevant authority.  Three incidents were described.  The first was said to have occurred in June 2013.  The second – related to the same company (“the first company”) – was said to have been the subject of penalties in July 2020.  The third – related to a different company (“the second company”) – was the subject of a decision delivered to the second company in July 2019.

The first plaintiff was said to have been the General Manager of the first company from October 2007 until September 2018, and his spouse was the Chief Financial Officer from September 2007 until August 2014.  At the time of the second incident, the first plaintiff was said to have been the Vice General Manager of the first company.  The first plaintiff was said to have had 80 per cent ownership interests in that company since 2008 and his spouse was said to have held the remaining 20 per cent share prior to June 2014.  In relation to the second company, the first plaintiff and his spouse were said to have been 90 per cent and 10 per cent shareholders, respectively, since 2004, with the first plaintiff being the Executive Director and General Manager and his spouse being the supervisor.

The adverse information notice concluded in relation to the first incident by saying:

“Based on the above and given you are the majority shareholder, legal representative and general manager of [the first company] on or about the time of incident 1, I am unable to accept the claim that you would have no knowledge or involvement about the incident which would be a significant part of [the first company’s] operations at the time given its scale.”

On 13 July 2021, the representatives of the first plaintiff responded to the adverse information notice with submissions and supporting documents.  They included a detailed letter from the first plaintiff responding to each of the three incidents.  At the conclusion of that letter, the first plaintiff asserted that the “negative information and reports in public concern[ing] [the first company] were caused by other people’s illegal activities, which [caused] [the first company] to be implicated and punished”.  The first plaintiff asserted that he and his spouse had not participated in those activities and had assisted the government departments “in dealing with those illegal activities after learning about them”.

On 13 July 2022, a decision was given by a delegate of the Minister (“the second delegate”), being a different person from the first delegate and also a different person from the officer who had sent the adverse information notice.

The second delegate set out the history of the first plaintiff’s application for a Business Innovation and Investment visa, including the information provided in the adverse information notice.  The second delegate described the response of the representative of the first plaintiff, including the submission based on dictionary definitions of “involvement” that, while the first plaintiff and his spouse “may have occupied certain positions in the relevant companies, it does not necessarily mean they have taken part in or participated in those illegal activities”.

As to the first incident, the second delegate observed that the first plaintiff had submitted, relying on supporting documents, that his position as legal representative of the company should be taken as having concluded in June 2014 and that his replacement had full responsibility for the relevant project and was not required to report to the first plaintiff on a day‑to‑day basis.  The second delegate observed, however, that the same documents indicated that although the first plaintiff was not the legal representative of the company from June 2014, he became the supervisor of the company (with duties including inspection of company finances and supervision of directors and senior management personnel) and retained his 80 per cent shareholding.  The second delegate observed that the employment statements that had been submitted in support of the first plaintiff’s previous visa applications did not support the first plaintiff’s claim that he was not involved with, and did not participate in, the activities of the first company, although the first plaintiff “now submitted that those were mistakes made by his secretary at the time”.

Ultimately, the second delegate accepted that the first plaintiff had changed his position in the first company from June 2014 but concluded that “given he is still the majority shareholder and the supervisor of the company, I find it unreasonable [for him to assert] that he would be unaware of the progress of the [p]roject as claimed and I cannot accept the claim that he was not involved in or participated in the [first company’s] operations as claimed”.

As to the second incident, the second delegate referred to the submissions for the first plaintiff, including that the contravention had been committed by a branch of the company with which the first plaintiff was not involved and that the first plaintiff was not aware of, and had not participated in, the contravention.  The second delegate referred to the employment statement submitted by the first plaintiff in his previous visa application which stated that he was the Vice General Manager of the company, although the first plaintiff had submitted in response to the adverse information notice that this information was incorrect.  The second delegate explained that although a branch might have its own responsible person, it was not a separate legal entity from the company and the company had been penalised for the contravention.  The second delegate again referred to the first plaintiff’s position in the company as the majority shareholder and a supervisor of the company at the time of the contravention.  The second delegate found that it was “unreasonable [for the first plaintiff to assert] that [the first plaintiff] would be unaware of or not involved in the [company branch’s] operations as claimed”.

The second delegate accepted the first plaintiff’s claims that he and the second company were not the parties responsible for the third incident. But based on the findings concerning the first and second incidents, the second delegate concluded that they were “not satisfied that clause 188.211 in Schedule 2 of the Migration Regulations is satisfied”. The first plaintiff’s application for a Business Innovation and Investment visa was refused.

By application to this Court dated 17 August 2022, the three plaintiffs seek constitutional writs to quash the delegate’s 13 July 2022 decision and to require the visa applications be decided by the Minister according to law.

Remittal

An application of this nature would commonly be remitted for hearing by the Federal Circuit and Family Court of Australia (Division 2) or the Federal Court of Australia.  It is necessary to explain why that course cannot be adopted in this case.

It is common ground that the 13 July 2022 decision fell within the definition of a “Part 5‑reviewable decision” in s 338 of the Migration Act. Although the decision could be the subject of merits review, the first plaintiff was unable to apply for merits review because he was offshore during the period when a review application could have been made and s 347(3) of the Migration Act provides that an application for review of a Part 5‑reviewable decision covered by the relevant part of s 338 may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made. Hence, the plaintiff did not bring an application for merits review.

It is also common ground that the first plaintiff’s application in this Court cannot be remitted to either the Federal Circuit and Family Court of Australia (Division 2) or the Federal Court of Australia.  The reasoning to that conclusion, which appears to be supported by the decision of Kiefel J in Gajjar v Minister for Immigration and Citizenship[2]^, is as follows.

[2][2012] HCA Trans 275, unpublished reasons helpfully set out in full in Xia v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1944 at [20].

First, by s 476B(2) of the Migration Act, this Court may only remit a matter or part of a matter to the Federal Circuit and Family Court of Australia (Division 2) if that court has jurisdiction in relation to the matter, or that part of the matter, under s 476 of the Migration Act. But by a combination of s 476(2), the definition of “primary decision” in s 476(4), the definition of privative clause decision in ss 5 and 474(2), and s 474(1), the Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction under s 476 of the Migration Act.

Secondly, by s 476B(3) of the Migration Act, this Court may only remit a matter or part of a matter to the Federal Court of Australia if that court has jurisdiction under s 476A(1)(b) or s 476A(1)(c) of the Migration Act.  But those provisions concern only particular decisions of the Administrative Appeals Tribunal and particular decisions made by the Minister personally.

In the absence of any contrary argument, it is convenient to proceed upon the common assumption that the first plaintiff’s application in this Court cannot be remitted to another court.  This result is, however, unfortunate and inconsistent with the general intention of Parliament in relation to the overall operation of the Migration Act.  In the Second Reading Speech for the Migration Litigation Reform Bill 2005 (Cth), which inserted ss 476, 476A and 476B into the Migration Act, the Attorney‑General said[3]:

[3]Australia, House of Representatives, Parliamentary Debates (Hansard), 10 March 2005 at 2.

“Migration cases filed in the High Court’s original jurisdiction and remitted will be directed to the Federal Magistrates Court. . . .  The High Court is the apex of our judicial system.  It should not be burdened with cases that are more appropriately handled by a lower court.”

The applications of the second and third plaintiffs in this Court do not rely on any matter other than that they were dependent upon the application of the first plaintiff. Their visa applications were refused because, while they were members of the first applicant’s family unit, the first applicant was not “a person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria for the grant of the visa”, such that the second and third applicants failed to satisfy cl 188.311 in Sch 2 of the Migration Regulations.  It is, therefore, convenient to consider the first plaintiff’s application in this Court together with the consequences it has for the second and third plaintiffs.

The first plaintiff’s grounds

The first plaintiff has three grounds upon which he seeks to quash the delegate’s 13 July 2022 decision. In the first ground, the first plaintiff submits that the delegate failed to act on a correct understanding of the law or failed to apply the law correctly. In summary, he says that the delegate erred in the approach taken to cl 188.211 of Sch 2 of the Migration Regulations by treating the criterion of “involvement” – in the context of business or investment activities that are of a nature that is not generally acceptable in Australia – as “contemplating a notion of ‘attributed responsibility’”. The first plaintiff submits that the delegate erroneously focused upon the first plaintiff’s “position in, control of, or responsibility within, the infringing company” and did not apply the correct construction of the word “involvement”.

In the second ground, the first plaintiff contends that the delegate “failed to undertake the required level of effort to ‘consider’ the [first plaintiff’s] case in relation to the first incident, or failed to understand the first plaintiff’s case and respond to that case”.

In the third ground, the first plaintiff contends that the delegate’s decision was “affected by a reasonable apprehension of bias”.  The first plaintiff asserts that the second delegate adopted, “in substantially identical linguistic terms”, the reasons given by the first delegate on 11 September 2020 and the “draft reasons” (as described by the first plaintiff) set out in the adverse information notice dated 18 May 2021.

Misconceptions in the first plaintiff’s application in this Court

The first ground

The first plaintiff seeks judicial review in this Court of the delegate’s decision relying upon, apparently as jurisdictional errors, a failure by the delegate “to act on a correct understanding of the law” or “to apply the law correctly”.  But it is not every error of law, in understanding or application, that will amount to a jurisdictional error.  The errors might be jurisdictional if, for example, they involved the delegate misconceiving the nature of the function to be performed or misconceiving the extent of their powers in the circumstances of the particular case[4].  But the first plaintiff does not identify how the alleged errors of law, in understanding or application, are jurisdictional.  The first plaintiff appears to treat any error of law as jurisdictional.  Nevertheless, in the absence of any submissions on this point by the parties, I proceed on the assumption that the errors identified by the first plaintiff are jurisdictional.

[4]Craig v South Australia (1995) 184 CLR 163 at 177‑178.

Even on the assumption that the alleged errors were jurisdictional, the first ground is, effectively, unarguable because it is based on a basic misconception of the operation of cl 188.211 of Sch 2 of the Migration Regulations. Contrary to the assumption in the first plaintiff’s submissions, cl 188.211 did not require the delegate to grant the visa unless satisfied that the first plaintiff had a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia. Rather, its clear and plain terms required the delegate to refuse the visa unless the delegate was satisfied that the first plaintiff did not have a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia.

As the respondent to this application correctly submits, the second delegate’s ultimate finding was that they were not persuaded of the first plaintiff’s lack of involvement in business or investment activities that were generally unacceptable in Australia.  The conclusion of the second delegate put this beyond argument:  “I am unable to make a finding that the [first plaintiff] or his spouse does not have a history of involvement in business activities that are of a nature that is not generally acceptable in Australia”.

In any event, even putting this misconception aside, the first plaintiff’s submissions in support of this ground are manifestly hopeless.  The first plaintiff submits that, in relation to the first incident, the second delegate erred by focusing upon the following:  the first and second plaintiffs’ shareholding; the first plaintiff’s status as a ‘legal representative’ under Chinese law; and the first plaintiff’s status as a ‘general manager’ of the relevant (purportedly large) company.  The first plaintiff submits that an inference that the plaintiffs “would have had knowledge of the relevant wrongdoing” could only be drawn “subject to grappling with any alternative case that the plaintiffs did not in fact have any such involvement”.  As to the second incident, the first plaintiff submits that the second delegate relied “only on the first plaintiff’s relationship with the company, and not on any evidence of his personal involvement”.

As the respondent in this Court observes, these submissions are not based on any fair reading of the second delegate’s reasons. The plain and clear meaning of the second delegate’s reasons, consistent with the negative formulation of cl 188.211 of Sch 2 of the Migration Regulations, was that the first plaintiff’s position in the first company was evidence which prevented any inference being drawn that could satisfy the second delegate that the first plaintiff was not involved in the relevant operations. The first plaintiff’s position (as supervisor) included duties of inspection of the company finances and supervision of the performance of duties by directors and senior management personnel. In the face of these duties, to be satisfied that the first plaintiff was not involved in the relevant operations would, as the second delegate said, be “unreasonable”.

When these misconceptions are removed, the issues raised by the first plaintiff concerning the linguistic meaning and interpretation of “involvement” in cl 188.211 of Sch 2 of the Migration Regulations simply do not arise. The second delegate did not reason that the first plaintiff was “involved” in the relevant activities merely by reason of a formal position in the relevant company. Rather, the second delegate reasoned that inferences that might arise from the position and duties of the first plaintiff were such as to prevent the second delegate being satisfied that the first plaintiff was not involved in business or investment activities that were generally unacceptable in Australia.

In any event, the second delegate did not apply any different meaning to “involvement” than the ordinary meaning of the word.  The second delegate referred to the first plaintiff’s submission that the meaning of “involvement” was “taking part in, or participating in” and then incorporated that ordinary meaning in the course of concluding that the second delegate did not accept “the claim that [the first plaintiff] was not involved in or participated in the [first company’s] operations as claimed”.

The second ground

The second ground also fails to identify how the alleged error rises to the level of a jurisdictional error.  But, again assuming that the error alleged by the first plaintiff is jurisdictional which might arguably be so if the reasons of the second delegate failed to provide any “intelligible justification” or were “irrational or illogical”[5], the second ground is also effectively unarguable.  Not only were the reasons of the second delegate intelligible, rational and logical, they were compelling, and the conclusion was almost inevitable.

[5]ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at 492 [129], quoting Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 446‑447 [47], Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [287].

To the extent that the second ground relies upon the pleaded particular that the second delegate “said, baldly and in conclusory terms, that the first plaintiff’s position within the company meant that his substantial evidence and argument was ‘not accepted’”, this submission is a misrepresentation.  The second delegate said that their conclusion was “[b]ased on the above” and “given the [first plaintiff] is the majority shareholder, legal representative and general manager”.  The reference to “the above” was to the substantial and detailed reasoning immediately preceding the concluding paragraph.  It is necessary to set out that substantial and detailed reasoning:

“The Archives indicated the [first plaintiff] was no longer the legal representative of the [first company] from 12/06/2014 but it also indicated that he became the supervisor of the [first company] and remained an 80% shareholder at the time. Duties of a supervisor of a company include amongst others, inspection of the company finances and supervision of the performance of duties by directors and senior management personnel. The documents submitted in support of the [first plaintiff’s] claim that he was only involved in the Project at the early stage are internal company documents not able to be independently verified and there is a lack of public or official information to support his claims. The employment statements submitted in support of the [first plaintiff’s] [previous] visa applications do not support the [first plaintiff’s] claim that he was not involved or participated in the operations of the [first company], although the [first plaintiff] has now submitted that those were mistakes made by his secretary at the time. Section 54 of the Migration Act specifies that the Minister must have regard to all of the information in the application.”

The third ground

The third ground asserts a jurisdictional error by the second delegate in the form of apprehended bias.  The third ground is based upon a premise that is plainly wrong.  The premise is that “[t]he key reasoning of the quashed decision” and the “language of [the] adverse information [notice]” were adopted by the second delegate.  The language used by the second delegate is submitted to be “relevantly identical with the adverse information notice excepting some syntax adjustment”.  It is then asserted that since the apprehension of bias “crystal[l]ises upon the publication of the reasons . . . there cannot be any question of waiver”.

The passage that the first plaintiff asserts gives rise to an apprehension of bias is set out in the reasons above at [7].  That passage is reproduced in near‑identical language in the section of the second delegate’s reasons that reproduce the substance of the adverse information notice.  That section commences with the following:

“The following detailed adverse information was conveyed to the [first plaintiff] via an electronic mail dated 18/05/2021 sent to the [first plaintiff’s] migration agent and the [first plaintiff] was provided with 28 days to respond.”

It is not arguable that any reasonable apprehension of bias could arise from setting out, even nearly verbatim, the impugned paragraph as part of the background to the consideration by the second delegate.  Nor is there any basis for the submission, by the first plaintiff in reply, that this Court should draw the inference that the second delegate had previously instructed the author of the adverse information notice to send that notice.  That submission is wholly unsupported by any factual basis or circumstances.

Even if the premise of this third ground were not plainly wrong, the first plaintiff would still have had to overcome the significant obstacle of showing how an apprehension of bias, by prejudgment, could occur from a decision maker, in detailed reasons, borrowing a single paragraph from a notice issued by a different person in circumstances where the decision maker ultimately made findings in the first plaintiff’s favour in respect of one of the three incidents raised in that notice.

Since it is not arguable that any reasonable apprehension of bias could have arisen, no issue arises as to whether the first plaintiff waived his liberty to rely upon a ground of apprehension of bias.

Conclusion

For the reasons above, the plaintiffs’ application does not disclose an arguable basis for the relief sought.  The application should be dismissed under r 25.09.1, without listing it for hearing.  The first plaintiff, who was the represented party on whose behalf the submissions were made, should pay the costs of the respondent.

AT 9.16 AM THE MATTER WAS CONCLUDED