Xiao v Minister for Immigration

[2020] FCCA 2673

FEDERAL CIRCUIT COURT OF AUSTRALIA

XIAO v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2673

Catchwords:

MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – error established in material fact regarding Reg.2.41- jurisdictional error established – writs issued.

Legislation:

Migration Act 1958 (Cth), s.101

Migration Regulations 1994 (Cth), reg.2.41

Applicant: LI XIAO

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 180 of 2020

Judgment of: Judge Vasta

Hearing date: 27 August 2020

Date of Last Submission: 27 August 2020

Delivered at: Brisbane

Delivered on: 27 August 2020

REPRESENTATION

Counsel for the Applicant: Mr A. Aleskov

Solicitors for the Applicant: Richard Timpson Solicitors & Migration Agents Pty Ltd

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That a writ of certiorari issue directed to the Second Respondent quashing it decision dated 18 February 2020 (AAT case number 1917883).

2. That a writ of mandamus issue directed to the Second Respondent requiring it to reconsider and determine the Applicant’s application for review made on 4 July 2019 according to law.

3. That the First Respondent pay the Applicant’s cost of and incidental to the application fixed in the sum of $7467.00.

NOTATION

(A)That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 180 of 2020

LI XIAO

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 18 February 2020, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision of the Delegate of the Minister to cancel the Applicant, Li Xiao's subclass 155 (five-year resident return) visa.  On 20 March 2020, the Applicant asked this Court to review that decision. 

2. The background of the matter is that the Applicant is, or had been a citizen of China.  She was born in 1984.  The sponsor is an Australian citizen who was born in 1951. 

3. On the evidence that is before me, the sponsor and the Applicant say that they were introduced by friends whilst the sponsor was in China in April 2007.  They say that they entered into a committed relationship in March 2009. The Applicant was given a prospective marriage subclass visa that enabled her to travel to Australia and she came here, to Australia, on 2 October 2010. 

4. On 26 March 2011 the sponsor and the Applicant married.  The sponsor had a previous marriage from which he had three adult children and the Applicant claimed that she had no previous relationship. 

5. The Applicant was granted a partner visa on 30 June 2011 and a partner subclass 801 visa on 24 May 2013.  The Applicant's application for her visa was submitted to the Department, it would seem, in 2011. 

6. In that application, the Applicant was asked a number of pro forma questions where she had to detail a number of matters.  At page 59 of the Court Book. the Applicant was asked at question 24: 

   Have you ever been in a same sex or opposite-sex de facto relationship before?

7. The Applicant ticked the box that said “no”. 

8. If the Applicant had ticked the box "yes", she was obliged to give the details of the name of the previous partner, the date of birth of the previous partner, the period of the relationship starting with the date that the relationship started, the date the relationship ended, and the number of children from this relationship; and that if there was insufficient space to give details, she would have to have given those details under additional information at Part J of the application. 

9. The application had other parts to it as well which included her relationship details with the sponsor and she had to answer a number of questions there by ticking boxes or giving further information. 

10. In short compass, what occurred is, that having been given the visa, the Applicant made a number of trips out of Australia.  She was out of Australia for quite some time in 2016.  On the evidence, she was away from Australia from 16 October 2014 to 17 March 2015, 17 March 2016 to 15 August 2016 and 12 September 2016 to 22 April 2017. 

11. The Applicant gave birth to a child in a town called Yiyang in Hunan province.  The child, a girl, was born on 27 November 2016.  The Applicant ended up applying for Australian citizenship for this child who had been born in China. 

12. Without going through all of the details, it would seem that a potted chronology was that the Applicant had given the Department a birth certificate that named the sponsor as the father.  The Department requested a DNA test.  The sponsor told the Department that the parties had commenced IVF in December 2013, but that the Applicant had two miscarriages and that the Applicant then decided to seek a sperm donor in China. 

13. The Applicant provided to the Department a notary certificate, purportedly from a hospital in China, certifying that the Applicant was artificially inseminated on 21 March 2016 and information about the donor could not be released.  The Department sought verification of this with the hospital and was advised that the certificate was, in effect, a bogus document. 

14. The application for citizenship was refused because the Delegate was not satisfied that the Applicant’s daughter had a parent who was an Australian citizen. 

15. The Applicant lodged an application for a child visa for her daughter, declaring herself as a sponsor.  She declared that she had the sole right to determine where the child should live.  The Department requested evidence of consent from the biological father for the child, or whether there was evidence of a People's Court verdict regarding revocation of custody, or evidence of a Civil Court ruling declaring the legal father missing, deceased or having lost capability of civil conduct. 

16. The Department was then advised by the Applicant that the Applicant had found the biological father.  The biological father was a Mr Fugui Pi (“Mr Pi”). She found him on a recent visit to China.  The Department requested DNA testing and Mr Pi was confirmed as the father of the child. 

17. Mr Pi had a telephone interview with the Department and, somewhat candidly, told the Department that he knew about the daughter's intended migration.  He knew his daughter was residing with the Applicant's mother and that he, the Applicant's mother and the Applicant's sister were all present when the Applicant gave birth. 

18. He said that he had met the Applicant in 2003 when they were both working in Shenzhen and the Applicant was there as a waitress.  He said that they entered into a relationship in 2003, and commenced living together in a rented apartment at that time.  He said that the two of them moved back to Yiyang in 2005 or 2006, and in 2007 they jointly bought a property which was registered under the Applicant's name. 

19. Mr Pi said the he supported the Applicant with mortgage payments and the property was paid off in 2017.  He said that his business in Yiyang was not profitable, so he went to work in Henan province and the Applicant went to Australia for work.  He said that the Applicant was encouraged by a male friend, whom she met, to seek employment in Australia.  He said that the Applicant sent money to her mother, but did not send any money to him because he did not need it. 

20. Mr Pi said that the Applicant visited him in China once or twice a year and they maintained contact during periods of separation.  He said that he and the Applicant did not register a marriage, as their relationship was stable and all family members were aware of that.  He said that the Applicant's role in his life was that of a wife and that he wanted his daughter to migrate to Australia and be reunited with the Applicant before she, meaning the daughter, returned to China for primary school enrolment. 

21. Obviously, that information put a totally different complexion on what applications the Applicant had made for her partner visas in the past. Because of this, the Department issued a notice of intention to consider cancellation. In that document, which is found at page 231 of the Court Book, the particulars given to the Applicant were that she had breached s.101 of the Migration Act 1958 (“the Act”) which, relevantly, read that:

    A non-citizen must fill in or complete his or her application form in such a way that:

    …. (b) no incorrect answers were given or provided. 

22. The notice then spoke of what could happen if s.101(b) of the Act was found to have been breached and then specifically spoke of the responses to the application for her visa that she had made.

23. There were quite a deal of other aspects to the matter explained in this notice, but, at the top of page 234 of the Court Book, the actual breaches of s.101(b) of the Act were put to the Applicant. The alleged breaches that the responses in the form of question 6, which is irrelevant for these purposes, and question 24 were incorrect; 24 being the question and answer that I have previously detailed relating to whether the Applicant had been in the same sex or opposite sex de facto spouse relationship before.

24. The notice of intention to consider cancellation went on with what had occurred that led the Department to believe that there may have been a breach, and gave quite detailed particulars of what Mr Pi had told the Department. 

25. At page 237 of the Court Book, under the heading “Possible Non-Compliance with section 101(b) of the Act”, the notice really spoke of the whole of the falsity of what had happened, but it did say:

    … specifically at question 24 on both copies of the form 47SP lodged in December 2009 (in support of your application for a Prospective Marriage visa) and March 2011 (in support of your application for a Partner visa) respectively, you claimed you had not been in a de facto relationship before.  This information appears to be incorrect as Fugui Pi claims to have been in a committed relationship with you since 2003 and also claims you purchased the property together in 2007…

26. The Applicant then answered the notice of intention.  The Delegate looked at the matter and ended up deciding to cancel the visa of the Applicant. 

27. The matter was then taken to the Tribunal.  The Tribunal went through all of the circumstances and then considered the Applicant's response to the notice and, particularly at paragraph 32 (Page 842 of the Court Book), summarised properly the Applicant's response to the notice.  The Tribunal went through the hearing and took evidence from the Applicant, from the sponsor, and from Mr Pi. 

28. The Applicant's evidence was that she acknowledged that she provided incorrect information, but spoke of her background; spoke that she was in a boyfriend-girlfriend relationship with Mr Pi from 2003, but claimed that Mr Pi was married, and that is when their relationship finished in 2005.  She said that she did not really believe or consider that she had been in a previous relationship.  She did not have any children from that relationship at the time she filled in the application, and so did not see that she had realistically, with intention to deceive, given any incorrect information. 

29. She spoke of the conception of the child and was asked by the Tribunal about information that she had given to the Department regarding the sponsor's role in the conception and why it was that she had claimed that he was the father, etcetera.  She ended up saying, in effect, that she had had a one-night stand with Mr Pi when she went over to China and she became pregnant from that encounter. 

30. The sponsor gave evidence that he accepted what the Applicant had said and he had forgiven her for what she had done, and that he saw himself as the father of that child.  Mr Pi gave evidence by telephone recanting the substance of everything that he had told the Department in the interview that I had earlier described as “candid”.  He said that he had lied about most of those matters and, in effect, his evidence matched totally the evidence that the Applicant was giving to the Tribunal. 

31. The Tribunal ended up not accepting Mr Pi's evidence that he gave, but preferred the evidence that Mr Pi had given to the Department in the earlier interview.  In the end, at paragraph 53, the Tribunal said that they found “that there was non-compliance with s.101(b) by the applicant in the way described in the s. 107 notice”.  

32. The Tribunal then looked at whether the visa should be cancelled. Simply because there has been non-compliance with s.101(b) does not mean that automatically a visa will be cancelled.

33. Pursuant to s. 109 of the Act, the Tribunal, and Minister, have to look at the fact that there was non-compliance, the response given about non-compliance, and have regard to the prescribed circumstances. The prescribed circumstances are contained in Reg. 2.41 of the Migration Regulations 1994 (Cth) (“the Regulations”).

34. The Tribunal set those prescribed circumstances out in paragraph 55 of its reasons.  With regard to the prescribed circumstances, two aspects of those are relevant here.  One is what is the correct information and two, whether the decision to grant a visa was based, wholly or partly, on incorrect information.  At paragraph 56 the Tribunal said: 

    The Tribunal has considered the visa holder's response to the NOICC.  The Tribunal finds that the non-compliance occurred when the visa holder signed her Prospective Marriage and Partner visa applications; the correct information was that the visa holder had a previous de facto relationship which began in 2003; and the decision to grant the visas were based on the incorrect information that she was in a mutually committed, exclusive relationship with her sponsor.  The Tribunal has considered the visa holder's evidence that she came from a poor family in a rural area, had limited education, did not speak English and the sponsor filled in the application forms.  The Tribunal gives this consideration little weight.  It is the responsibility of a visa applicant or holder to provide correct information regardless of whether they have come from a rural area, or have limited English or education, or did not fill in their own application form or forms. 

35. The Tribunal then looked at a number of other matters and also then spoke of the departmental PAM3 guidelines.  The Tribunal looked at what would occur to the Applicant if she were to return to China.  The Tribunal acknowledged the sponsor's statement that he was prepared to accept the Applicant's child as his own; that Mr Pi also wanted the child to have a better future in Australia; that the Applicant and the sponsor wanted to live as a family unit in Australia; and, also took into account evidence of the sponsor's adult daughters.  They said that they would be devastated if the Applicant had to leave the country because the sponsor, their father, would follow her and that they would lose their father and their children would lose their grandfather. 

36. The Tribunal gave weight to that testimony, but, in the end, considered that their contact would still be able to be maintained, and they could visit each other if it were that the sponsor did go back to China with the Applicant.  The Tribunal considered a number of other matters, but came to the view that, having regard to all of the relevant circumstances, the conclusion that they reached was that the visa should be cancelled. 

37. The matter today proceeded upon the grounds of an Amended Application that was filed on 13 August 2020.  The grounds are:

    1. the Tribunal misconstrued or misapplied reg 2.41(c), in how it approached the assessment of whether the wrong information led to the grant of the visa.

    2. The Tribunal failed to consider government policy requiring it to treat the best interests of the children as a primary consideration. 

38. I will speak of the second ground first.  This second ground proceeds upon this premise.  In the PAM3 document, government policy has been laid out to decision-makers and it also can apply to AAT members who are standing in the shoes of governmental decision-makers.  That policy document shows that the Australian Government policy requires decision-makers to treat the best interests of the children as a primary consideration.  The document refers to Australia's international obligations and also the obligations under the convention on the rights of the child. 

39. The Applicant has focused on this line in paragraph 67 of the Tribunal's reasons. Paragraph 67 reads: 

    No claim was made or information before the Tribunal to indicate that any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child. 

40. The Tribunal then went on to look at the matters that I have previously adverted to.  The Applicant relies on what was said in the matter of the Minister for Immigration Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189 (“Gray”).  In the judgment of French J, as he then was, and Drummond J, the Court there spoke of government policy needing to be recognised as part of the matters that the decision-maker must look at when making their considerations. 

41. The Applicant says that those opening lines of paragraph 67 show that there had not been such consideration; that the Tribunal had not considered a primary consideration - being the best interests of the child as laid out in the international documents to which Australia was a signatory.  In failing to do that, the Applicant argues that the Tribunal has committed a jurisdictional error. 

42. The Minister points out that policy documents are simply that; they are policy, they do not have the force of law and, whilst acknowledging what it is that was said in Gray, the Minister points to other more recent authorities that speak of the role of those policy guidelines when decision-makers, especially the AAT, are giving decisions.  It is a matter for them to make the decision according to law and that the policies do not have that force of law.  Whether those decisions have actually overruled what was said in Gray or not is not a matter that I need to trouble myself with. 

43. It seems to me, when one has a fair reading of what it is that the Tribunal has done in their reasons, that they have not committed a jurisdictional error.  That is because they have, at paragraph 64 of their reasons, spoken of the guidelines and have then looked at those matters as to what it is they must do.  The first matter they did look at, was what was going to be the consequence of cancellation for the Applicant in having to return to China, and, in paragraph 65, came to certain conclusions. 

44. Paragraph 67 is factually correct.  The Applicant did not make a claim that any international obligations would be breached as a result of the cancellation or that there would not have been the obligation to consider the best interests of the child.  Nevertheless, notwithstanding that there was no claim made, the Tribunal actually went ahead and did consider the best interests of the child and complied with what it was that they had to do under the policy guidelines; that is, they looked at what was happening with the child who is the child of the Applicant. 

45. They noted what the child's biological father was saying: that the child was still in China, that the child was living with the grandmother and aunt who were caring for her, and that the biological father was caring for the child.  The Tribunal actually said, at paragraph 68 of its reasons that “the Tribunal considers the best interests of the child will be served by being with her mother, and gives this matter no weight against cancellation”. 

1. The Tribunal then looked at what was happening with the grandchildren of the sponsor.  Again, it was still somewhat speculative that the sponsor would travel to China, given that the sponsor had travelled seldomly in comparison with the Applicant during the time that they had been together, but, nevertheless, the Tribunal proceeded upon a premise that the sponsor would go back to China with the Applicant upon cancellation. 

2. The Tribunal took into account that the adult children of the sponsor would be devastated and that the grandchildren would lose their grandfather, according to those adult children. But then, in paragraph 69, the Tribunal considered all of those matters and came to the conclusion that the sponsor “could maintain contact with his family in Australia via phone and internet, and that they could visit each other”. 

3. It would seem to me that the purpose of the policy is not to, as it were, slavishly follow and speak of the fact that such instruments have been considered, but to actually consider the import of those matters. 

4. The Tribunal has considered those matters, has complied with the need for it to look at the best interests of the child, and has not, therefore, fallen into jurisdictional error.  Ground 2, therefore, fails. 

5. Ground 1 is premised upon Reg. 2.41(c); that is whether the decision to grant a visa was based wholly or partly on incorrect information. One has to go through the legislative regime. As I have already said, s.101(b) of the Act prescribes that a non-citizen must fill in or complete his or her application form in such a way that “no incorrect answers are given or provided”. 

6. Section 107 of the Act states:

   (1)if the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in response to a notice under this section, the Minister may give the visa holder a notice:

   (a) giving particulars of the possible non-compliance;

   Section 107(1)(b) and (c) are not relevant to this part of the argument.

7. Section 108 of the Act states that:

   The Minister is to:

   (a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b) decide whether there was non-compliance by the visa holder in the way described in the notice. 

   This was the reason that I already went through the notice as I did. 

8. Whilst it was that the notice generally spoke of all of the information that the Department now had, the particulars given as to non-compliance with s.101(b) of the Act was that the answer to question 24 was incorrect. Under s.108 of the Act, the Minister had to decide whether there was non-compliance in the way described in the notice. The Tribunal, without actually referring to s.108, did say that they were satisfied that there was non-compliance by the Applicant in the way described in the notice.

9. That necessarily means that the decision was made that there was non-compliance by the visa holder in that she incorrectly answered question 24. 

10. Section 109 of the Act states that:

    The Minister, after:

    (a) deciding under section 108 that there was non-compliance by the holder of a visa; and

    (b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

    (c) having regard to any prescribed circumstances;

    may cancel the visa. 

11. The circumstance in Reg. 2.41(c) is the one that I have spoken of, whether the decision to grant a visa was based, wholly or partly, on incorrect information. Necessarily that incorrect information must be the information particularised in the notice and decided upon under s.108(b) of the Act. It is also the information that is relied on in s.109(1)(a) of the Act.

12. Therefore, the Tribunal had to look at whether the decision to grant the Applicant's visa was based wholly or partly on the fact that she incorrectly answered the question as to having been in a de facto relationship previously.  What the Tribunal said at paragraph 56 was highlighted by the Applicant, and especially this clause that is in the fourth line of that paragraph, which reads: 

    … and the decision to grant the visas were based on the incorrect information that she was in a mutually committed, exclusive relationship with her sponsor... 

13. It very well may be that the decision to grant the visa in the first place was based on that incorrect information, that she was in “a mutually committed, exclusive relationship”, but that is not the incorrect information that must be considered under Reg. 2.41(c); because the incorrect information is not that “she was in a mutually committed, exclusive relationship with her sponsor”, but that “she had not been in a de facto relationship previously”. 

14. Once it is that the Tribunal has come to that decision, that the incorrect information was that she was in a mutually committed, exclusive relationship with her sponsor, it would seem very difficult, when one considers all of the other circumstances in Reg. 2.41, for the Applicant to avoid a finding that the visa should be cancelled.  However, if it were that the decision to grant the visa was based on the incorrect information, that she had not been in a de facto relationship previously, it may be that there was a chance of a different outcome no matter how unlikely that was. 

15. It does seem to me that there was an error by the Tribunal.  Because of the potential, and it is only a slight potential but is one that I cannot ignore, it would seem to me that the error was a material error. 

16. The findings and conclusions that I am about to make really highlight the difference that a Court must undertake in a review as opposed to an appeal.  There are plenty of matters that the Court reviews and finds that there has been no jurisdictional error; yet if the matter were an appeal, an appeal may very well, or would probably, succeed. 

17. This is one of those converse matters where it seems to me that if this matter were an appeal, the appeal would have no prospects of success.  Yet, there is, what I will pronounce very soon, a clear jurisdictional error.  It may be that the result by a new Tribunal will be exactly the same as the result here, but that is not the question for the Court.  If it is that there has been a jurisdictional error, the Court has really no choice but to issue the writs. 

18. In this case, there has been a misapplication of Reg.2.41(c). That misapplication is a material error and, therefore, is a jurisdictional error.

19. I, therefore, grant the application and I will issue the writs. I will order that will be with costs in the sum of $7,467.00.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:23 September 2020.