Wang v Minister for Immigration

[2016] FCCA 1033

FEDERAL CIRCUIT COURT OF AUSTRALIA

WANG & ORS v MINISTER FOR IMMIGRATION [2016] FCCA 1033

Catchwords:
MIGRATION – Review of decision of a delegate of the respondent to cancel the applicants’ visa – whether time should be extended to applicant to seek judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be necessary in the interests of justice to extend time – application for extension of time refused.

Legislation:
Migration Act 1958 (Cth), ss.36, 116, 128, 129, 477
Migration Regulations 1994 (Cth), reg.2.43

Case Cited:
Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491

First Applicant: YANYAN WANG

Second Applicant: MI ZHOU

Third Applicant: ENQIAO ZHOU

Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File Number: SYG 205 of 2016

Judgment of: Judge Emmett

Hearing date: 28 April 2016

Date of Last Submission: 28 April 2016

Delivered at: Sydney

Delivered on: 6 May 2016

REPRESENTATION

Counsel for the Applicant: Ms Danielle Tucker

Solicitor for the Applicant: W & H Lawyers

Counsel for the Respondents: Mr Gregory Johnson

Solicitor for the Respondents: Mills Oakley Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 205 of 2016

YANYAN WANG

First Applicant

MI ZHOU

Second Applicant

ENQIAO ZHOU

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

1. By application filed on 3 February 2016, the applicants seek judicial review of a decision of a delegate of the Respondent (“the Delegate”), who notified the applicants on 22 July 2015 that their subclass 457 visa had been cancelled pursuant to s.128 of the Migration Act 1958 (Cth) (“the Act”).

2. The applicants also sought an extension of time, in circumstances where their application for judicial review of the Delegate’s decision was filed more than five months from the date of the decision. Section 477 of the Act provides that an application seeking judicial review of a decision must be filed within 35 days from the date of the decision. However, s.477(4) of the Act confers power to the Court to extend time where the Court is satisfied that it is necessary in the interests of justice to do so.

3. The first applicant is a citizen of the People’s Republic of China and she is the primary visa holder of the subclass 457 visa (“the Applicant”), the cancellation of which is the subject of the present proceeding. The second and third applicants are visa dependents and their claims are wholly dependent on those of the Applicant.

4. The Applicant was represented before this Court by Ms Danielle Tucker, of counsel. On 6 April 2016, the matter first came before the Court for directions. On that occasion, the Applicant’s application for an extension of time to seek judicial review of the Delegate’s decision was set down for hearing today.

Background

1. On 17 June 2014, the Applicant lodged an application for a subclass 457 visa. In her visa application form, the Applicant provided details of her residential address in China as well as an email address and the details of her registered migration agent, who was authorised to “act and receive communications on [her] behalf as part of this application.”

2. On 24 July 2014, the Applicant was granted a subclass 457 visa on the basis that she was employed in a nominated occupation as a Sales and Marketing Manager by her sponsoring employer, ATF Development Pty Ltd (“ATF”).

3. The relevant summary from thereon is contained in Ms Tucker’s written submissions filed on 15 April 2016, as follows:

   “9. From 15 October 2014 to 19 October 2014, the First Applicant was in Australia.

   10. On 10 December 2014, [ATF] lodged an application for an Employer Nomination Scheme (ENS) visa in favour of the Applicant.

   11. On 16 January 2015, an application was lodged on behalf of the Applicant for an ENS visa. The Applicants again nominated an authorised recipient with respect to “all written communications that would otherwise be sent to” her.

   12. From 21 February 2015 to 25 February 2015, the Applicant was in Australia.

   13. On 29 April 2015, the First and Second Applicants' second child was born in China.

   14. On 27 May 2015, a delegate of the Respondent sent a cancellation referral email to the General Cancellation Network within the Department of Immigration and Border Protection (the Department) to recommend the cancellation of the Applicant's 457 visa: CB, pp. 24-26. The form noted that the First Applicant had another visa in process (the 186 visa) and that she was "offshore": CB, p. 24.

   15. On 28 May 2015, a delegate of the Minister refused [ATF]’s ENS nomination application on the basis that the nominator had not identified a need for a full-time sales and marketing manager.

   16. On 29 May 2015, a delegate of the Minister informed the First Applicant that the nomination submitted to the Department by [ATF] listing the Applicant as their Nominee had been refused, and informing her that this meant that her visa application could not be approved. The notification was sent to the Applicant's authorised recipient.

   17. On 11 June 2015, as a response to the ENS nomination refusal, the Applicant applied to have the ENS visa application withdrawn.

   18. On 25 June 2015, approximately just one month before the 457 visa cancellation notification letter was sent to the First Applicant's former address in China, the acknowledgement of the withdrawal was sent directly to the First Applicant's authorised recipient.

   19. On 22 July 2015, the delegate of the Respondent made a decision to cancel the 457 visa held by the Applicant without notice pursuant to s 128 of the Migration Act. The notification letter, among other things, indicated that the Applicant would have 28 days from the date of deemed receipt to advise in writing whether she would like “the cancellation of [her] visa to be considered for revocation by an officer”: CB p. 34. It also noted: “There is no provision for this time frame to be extended”: CB, p. 34.

   20. The notification letter was sent to the First Applicant by international registered post. The address to which the letter was posted was the Applicant's previous residential address, when she and her husband were living with her parents-in-law in the Chongchuan District (which is approximately a 40 minute drive from the Tongzhou District, where the Applicant, her husband and 2 children now live). The notification letter was not sent to the Applicant's authorised recipient.

   21. On 2 September 2015, the NSW Land and Environment Court made orders approving the development application concerning the property development project in relation to which the First Applicant had been employed by [ATF]. The development application concerns a mixed-use property development project on Commonwealth Street in the central business district of Sydney, NSW.

   22. On 23 November 2015, following the completion of the First Applicant's maternity leave and in light of the development application approval, the Applicant tried to return to her work in Australia, but was not permitted to board by airline staff at the Shanghai Pudong International Airport. The Applicant's boarding has been rejected because the Advance Passenger Processing system indicated that she did not have a valid visa to enter Australia. This was the first occasion on which the Applicant became aware of the cancellation.

   23. Immediately after the incident at the airport, the First Applicant sought assistance from Mr Ronglai Zhang, the Applicant's solicitor and authorised recipient, who is a Sydney solicitor and registered migration agent, employed by W&H Lawyers.

   24. After having been contacted by the Applicant, Mr Zhang as the Applicant's authorised recipient, called the Department's general enquiry line to ascertain the status of the First Applicant's 457 visa, and was advised of the address to which the notification letter had been sent. Mr Zhang, however, was informed by the Department's representative that the reasons for cancellation could not be disclosed to him as he was no longer authorised to receive such communications.

   25. On 25 November 2015, after being informed of the cancellation decision by her authorised recipient, the First Applicant went to her parents-in-law's residence in the Chongchuan District to search for the cancellation decision letter, which she eventually found in a pile of letters written in English. The Applicant's parents-in-law do not speak, and cannot read, English. After having visited her parents-in-law in the Chongchuan District to collect the letter, the First Applicant sent her solicitor and authorised recipient a copy of the notification letter by an electronic instant messaging communication.

   26. On 1 December 2015, the Applicant instructed her solicitors to commence preparing judicial review proceedings. The Applicants and their solicitors, at this point in time, only had the notification letter of 22 July 2015 in respect of the cancellation decision.

   27. On 2 December 2015, the Applicants’ solicitors made a request under the Freedom of Information Act 1982 (Cth) (FOI Act) seeking all the records kept by the Department with respect to the First Applicant's 457 visa application and 457 visa cancellation, including but not limited to:

   a. 457 visa application forms and supporting evidence;

   b. Information, evidence and other factors considered by the Department in reaching the decision to cancel the visa;

   c. Documented records of visa cancellation and any correspondence issued to the applicant with respect to the cancellation.

   28. On 21 December 2015, the Department responded to the request under the FOI Act by releasing, in part, documents within the scope of the request stated above. The cancellation referral, now at CB, p. 24-26, was deemed to be exempt from the release of documents.

   29. On 3 February 2016, after the Christmas and New Year period and once the Applicant had been able to transfer monies in trust to her solicitors’ trust account on 20 January 2016, the present Application for judicial review of the delegate's cancellation decision and the supporting affidavit were filed.”

Legislative Framework

1. The relevant statutory scheme for the cancellation of a visa without prior notice is set out in Ms Tucker’s submissions as follows:

   “30. Subdivision F of Part 2 Division 3 of the Migration Act establishes a procedure for the cancellation of a visa without prior notice. Section 128 of the Migration Act provides:

   Cancellation of visas of people outside Australia

   If:

   (a) the Minister is satisfied that:

   (i) there is a ground for cancelling a visa under section 116; and

   (ii) it is appropriate to cancel in accordance with this Subdivision; and

   (b) the non-citizen is outside Australia;

   the Minister may, without notice to the holder of the visa, cancel the visa.

   31. Section 129 of the Migration Act provides (emphasis added):

   Notice of cancellation

   (1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:

   (a) stating the ground on which it was cancelled; and

   (b) giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and

   (c) inviting the former holder to show, within a specified time, being a prescribed time, that:

   (i) that ground does not exist; or

   (ii) there is a reason why the visa should not have been cancelled; and

   (d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and

   (e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.

   (2) The notice is to be given in the prescribed way.

   (3) Failure to give notification of a decision does not affect the validity of the decision.

   …

   34. Regulation 2.43(1)(kb) of the Regulations provides:

   (1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:

   …

   (kb) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the applicant met the requirements of subregulation 457.223(4) – that, despite the grant of the visa, the Minister is satisfied that:

   (i) the holder did not have a genuine intention to perform the occupation mentioned in paragraph 457.223(4)(d) at the time of grant of the visa; or

   (ii) the holder has ceased to have a genuine intention to perform that occupation; or

   (iii) the position associated with the nominated occupation is not genuine.

   35. The Explanatory Statement to the Migration Amendment Regulations 2009 (No. 5) Amendment Regulations 2009 (No. 1) relevantly explains in relation to Reg 2.43(1)(kb) as follows:

   Paragraph 2.43(1)(kb) provides that a prescribed ground for cancellation for the purposes of paragraph 116(1)(g) of the Act is, in the case of the holder of a Subclass 457 (Business (Long Stay)) visa that was granted on the basis that the applicant met the requirements of subregulation 457.223(4), that despite the grant of the visa, the Minister is satisfied that:

   the holder:

   • did not have a genuine intention to perform the occupation mentioned in paragraph 457.223(4)(d) at the time of grant of the visa; or

   • has ceased to have a genuine intention to perform that occupation; and

   • the position associated with the nominated occupation is not genuine.”

Proceeding before the Court

1. Ms Tucker confirmed that the Applicant relied on the grounds for judicial review identified in her initiating application, as follows:

   “1. The delegate failed to form a lawful satisfaction that it was appropriate to cancel the visa in accordance with Subdivision F of Part 2 of the Migration Act 1958 (Cth).

   Particulars

   (i) The delegate stated that he was satisfied that it was "appropriate to cancel without notice", but did not state that he was satisfied that it was "appropriate to cancel in accordance with" subdivision F.

   (ii) It can be inferred that the delegate held a satisfaction different from the requisite statutory satisfaction.

   (iii) Alternatively, it can be inferred that the delegate did not consider or did not adequately or properly consider whether it was appropriate to cancel in accordance with subdivision F.

   (iv) Further, it was unreasonable or otherwise irrational or disproportionate or not open for the delegate to form a satisfaction that it was appropriate to cancel the visa in accordance with Subdivision F of Part 2.

   2. The delegate failed to form a lawful satisfaction that there was a prescribed ground for cancelling the applicants' visas.

   Particulars

   (i) The relevant "prescribed ground" relied on by the delegate was that "the position associated with the nominated occupation is not genuine".

   (ii) The delegate was of the view that "either someone else is working in the nominated position or the position is not required".

   (iii) It was unreasonable or otherwise irrational or disproportionate or not open for the delegate, based on that view, to form a satisfaction that the position was not genuine.

   3. Section 140(1) did not operate to cancel the visas held by the second and third respondents, being members of the family unit, of the first applicant.

   Particulars

   (i) Section 140(1) only operates to cancel visas held by another person because of being a member of a family unit of a person whose visa has been cancelled under s 128 if the initial cancellation decision under s 128 is valid

   (ii) The initial cancellation decision was invalid.”

2. Ms Tucker then addressed the length of the Applicant’s delay in seeking judicial review of the Delegate’s cancellation of her Subclass 457 visa and the prospects of success of the grounds of the Applicant’s initiating application.

3. Ms Tucker conceded that the Applicant’s application is filed some 159 days outside of the 35 days limit prescribed under the Regulations. However, Ms Tucker submitted, and I accept on the evidence before me, that the Applicant first had actual notice of the cancellation decision on 23 November 2015, and therefore the length of delay is about 70 days.

4. The explanation by the Applicant for that delay essentially was that she changed her address in China without notifying the respondent. She arranged for her parents-in-law to receive her mail. She did not collect the Delegate’s notification letter until after 23 November 2015. However, on the evidence before me, I accept that the notification letter was sent to the Applicant on 22 July 2015.

5. From 23 November 2015 until the application before this Court was filed on 3 February 2016, I accept that the Applicant sought legal advice, which resulted in the making of a Freedom of Information (“FOI”) application, prior to filing any application for judicial review of the respondent’s decision. The delay was also affected by the Applicant’s inability to get money in trust for her solicitor in Australia and the intervening Christmas and New Year period.

6. The making of the FOI application was said to enable the Applicant and her authorised recipient, Mr Ronglai Zhang, to explore the processes and conduct of the respondent in sending the notification letter. Ultimately, the grounds of the application for judicial review are solely related to matters raised in the notification letter. Those grounds were available to the Applicant on 23 November 2015.

7. Ms Tucker asked the Court to give significant weight to the Department’s failure to send a notification letter to the Applicant’s authorised recipient, rather than to the Applicant at her residential address in China as advised on her visa application. Ms Tucker submitted that the authority given to Mr Zhang was a broad authority, which continued after the granting of the subclass 457 visa. However, even if I was to accept the applicant’s contention that the authority was broad and continuing, s.129 of the Act makes clear that any defect in the method of communication itself does not invalidate the respondent’s decision.

8. I accept that the applicant did not vary or withdraw the authority given to Mr Zhang in relation to the subclass 457 visa application. However, I also accept the respondent’s submission that the respondent was not required to send the notification of the cancellation of the Applicant’s subclass 457 visa to her authorised recipient, rather than directly to her by means of her address last known to the respondent, in this case, her address in China. The Applicant was also notified at the email address provided by her to the Department.

9. The notification of the grant of the Applicant’s subclass 457 visa, dated 24 July 2014, contained the following advice in relation to any changes to the Applicant’s circumstances:

   “Changes to your circumstances

   Up until the time you arrive in Australia, you are required to tell us about any changes to your circumstances that may affect any answer to a question in your application form including your name, passport, contact details, address or family members as soon as possible. You are required to do this in writing and can use Form 1022 Notification of changes in circumstance (Section 104 of the Migration Act 1958), which is available at Failure to notify the department of your new circumstances can have serious consequences and your visa may be cancelled.

   After you arrive in Australia, it is still important that you tell us about any changes to your circumstances as soon as possible. You are required to do this in writing and can use one of the forms available at >

   In the circumstances, the Applicant was on plain and clear notice from the granting of her temporary visa that it was her responsibility to keep the Department informed at all time of her contact details. She chose not to do so.

1. Further, the Applicant chose not to collect her mail regularly from her parents-in-law. The notification letter was sent on 22 July 2015 and it was not until after 23 November 2015 that the Applicant collected the notification letter from her parents-in-law.

2. In my view, the Applicant’s delay between those days is a consequence of the Applicant’s failure to comply with her obligations in keeping the Department informed of her contact details. In the circumstances, I find the applicant’s explanation for the delay between the date of the notification letter and 23 November 2015 to be both unreasonable and unsatisfactory.

3. I accept that the Applicant’s explanation of the delay from 23 November 2015 until 3 February 2016, whilst imprudent, was not entirely unreasonable. However, as stated above, the grounds upon which judicial review was sought were available to the Applicant on 23 November 2015.

4. As at 23 November 2015, it would have been apparent to the Applicant that time was running against her in seeking any judicial review of the Delegate’s decision to cancel her visa. Whilst she has explained why she delayed in seeking judicial review of the Delegate’s decision, I find that the course the Applicant took was not a satisfactory explanation for the delay, including her failure to fund her legal advisor.

5. In considering the prospects of success of the grounds of the initiating application, Ms Tucker’s submissions are essentially fourfold:

   a)The Delegate did not make clear in his notification letter any reasons for not cancelling the visa.

   b)There is no evidence of “careful consideration of all the information” referred to by the delegate.

   c)The ground relied upon by the Delegate that the “position associated with the nominated occupation is not genuine” was not supported by relevant reasons.

   d)In concluding that it is appropriate to cancel without notice, the Delegate gave no meaningful consideration that led to that conclusion.

6. Section 128 of the Act states that a visa may be cancelled where the applicant is offshore. The notification letter stated that the Applicant’s visa was cancelled pursuant to s.128 of the Act because “after consideration of all information”, the Delegate was satisfied that “there was a ground for cancelling [the Applicant’s] visa and the ground for cancelling the visa outweighed the reasons for not cancelling and that it was appropriate to cancel the visa without notice.”

7. The letter also stated “after consideration of all information” the Delegate was satisfied “there was a ground for cancelling [the] visa under s.116(1)(g) of the Act, which referred to prescribed grounds for cancelling the visa set out in reg.2.43(1) of the Regulations.”

8. The ground relied upon by the Delegate was that the position associated with the nominated occupation was not genuine (see reg.2.43(1)(kb) of the Regulations). Having found that a prescribed ground existed for cancelling the visa, the Delegate was required to exercise a discretion pursuant s.116(3) of the Act as to whether the Applicant’s subclass 457 visa should be cancelled without notice.

9. The Delegate stated that the Department’s record indicated that the Applicant had travelled in and out of Australia on the following dates:

   “Arrived 15 October 2014

   Departed 19 October 2014

   Arrived 21 February 2014

   Departed 25 February 2014”

10. The notification letter stated that the Applicant was granted the subclass 457 visa for the purpose of being able to fill a skill shortage and to work in Australia for an approved sponsor in a skilled occupation for which the Applicant was specifically nominated to work, and which could not be filled from within the Australian workforce. The letter stated that since the grant of the Applicant’s visa on 24 July 2014, the Applicant had spent a total of 8 days in Australia. The Delegate stated “this indicates that either someone else is working in the nominated position or the position is not required”. The Delegate did not make a determination whether someone else was working in the nominated position or that the position was not required.

11. Ms Tucker submitted that the Applicant’s conduct after the grant of her subclass 457 visa only goes to the Applicant’s genuine intention to work in the nominated occupation, rather than whether the nominated occupation was genuine. I do not accept that submission on the basis that on a fair reading of the Delegate’s letter, it is clear that the information the Delegate relied on was capable of leading to the conclusion that the position associated with the nominated occupation was not genuine.

12. At the time of the cancellation notification, the Applicant had 28 calendar days to provide a response as to why her visa should not be cancelled. The Applicant provided no such response because she had not received the notification letter in sufficient time to give any response during that 28 day period. As stated above, the principal reason for that was because the Applicant failed to notify the Department of her new contact details and failed to collect her mail from her parents-in-law in time to make any such submission.

13. A fair reading of the Delegate’s letter makes clear that the Delegate found, that on the basis of the information before him, the Applicant had only spent 8 days in Australia in the past 12 months and that was sufficient to support the prescribed ground that the position was not genuine. The Delegate posed options as to why he found that the nominated occupation was not required. It was open to the Delegate to find that the nominated occupation was not required based on the fact that the applicant had spent only 8 days in Australia after the grant of the Applicant’s subclass 457 visa. Indeed, on the Applicant’s own evidence, she was not required for the position before 23 November 2015.

14. Further, I accept the submission of the respondent that even if the Applicant was required to perform in the nominated occupation on 23 November 2015, there was nothing before the Delegate which suggests that the nominated occupation was required when the notification letter was sent on 22 July 2015.

15. I do not accept Ms Tucker’s submission that the Delegate was under a duty to make inquiries about the nominated position, or the genuineness of it, in circumstances where the information before the Delegate makes clear that the Applicant had spent only 8 days in Australia since the grant of her subclass 457 visa. For the same reason, I do not accept that any failure by the Delegate to make any such inquiry of the sponsoring employer amounted to a jurisdictional error.

16. Moreover, there is no evidence before the Court to suggest that there was any attempt by the applicant or her migration agent to keep the Department informed as to why the Applicant was spending a significant amount of time overseas, or that the property development for which the Applicant had been employed was in the process of being approved by the relevant authorities.

17. Contrary to Ms Tucker’s submissions, the Delegate plainly did not rely only on the fact that the applicant was offshore in cancelling the Applicant’s visa pursuant to s.128 of the Act.

18. Ms Tucker referred to the Department’s Procedures Advice Manual (“PAM-3”), which states that the delegates are carefully to document the reasons why it is appropriate to cancel a visa without notice. Ms Tucker submitted that the Delegate in the present case did not do so.

19. However, a fair reading of the Delegate’s letter makes clear that the Delegate did consider the relevant documents in deciding why it was appropriate to cancel the Applicant’s visa without notice. The documents before the Delegate make clear that the Applicant had spent only 8 days in Australia in the past 12 months since being granted the subclass 457 visa. It was open to the Delegate on that information to find that it was appropriate to cancel the Applicant’s visa without notice based on the grounds that the required position was not genuine.

20. The contents of the notification letter make clear that the Delegate turned his mind to the statutory power he was exercising and to whether it was appropriate to cancel the Applicant’s visa without notice. The notification letter makes clear that the Delegate understood that he was exercising a discretion as to whether or not he should cancel the Applicant’s visa, having found that there was a prescribed ground which existed to enliven s.128 of the Act. In any event, the PAM-3 policy guidelines do not bind any decision maker in the exercise of their powers.

21. In the circumstances, I am not satisfied that the grounds of the initiating application have any reasonable prospect of success.

22. I accept Ms Tucker’s submission in relation to the hardship to the Applicant, namely, that she now has had no opportunity to challenge the merits of the cancellation and to give reasons as to why her visa should not be cancelled; that she is prevented from applying for another subclass 457 visa for 3 years from the date of the cancellation; and, that she would suffer a loss of income. However, I am not satisfied that where the grounds of the application have little or no prospect of success and the delay is unsatisfactorily explained, that the hardship that the Applicant may suffer is sufficient to outweigh those matters. Moreover, it is well established that there is a public interest in ensuring a finality to administrative decisions (see Re Commonwealth of Australia;  Ex Parte Marks (2000) 177 ALR 491 at [15]-[17] per McHugh J).

23. Accordingly, in my view, it is not necessary in the interests of justice that time be extended to the Applicant to seek judicial review of the Delegate’s cancellation of her subclass 457 visa.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  6 May 2016