Xie v Minister for Home Affairs

[2019] FCCA 266

FEDERAL CIRCUIT COURT OF AUSTRALIA

XIE & ANOR v MINISTER FOR HOME AFFAIRS [2019] FCCA 266

Catchwords:
MIGRATION – Application for a Business Skills-Business Talent (Subclass 132) visa – whether the information considered by the delegate was open for the delegate to take into account – whether the delegate had a real and genuine engagement with the applicant’s submissions – whether the delegate complied with its statutory obligations – whether the adverse findings were open for the reasons given by the delegate – no jurisdictional error made out – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.57, 477

Migration Regulations 1994 (Cth), cl.132.211, 132.26 of Schedule 2

Cases cited:

Briginshaw v Briginshaw [1938] HCA 34

First Applicant:

Second Applicant:

BAOJUN XIE

CAIFANG XIE

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 2600 of 2018

Judgment of: Judge Street

Hearing date: 7 February 2019

Date of Last Submission: 7 February 2019

Delivered at: Sydney

Delivered on: 7 February 2019

REPRESENTATION

Solicitors for the Applicants: Mr G Ying
Lin Tang & Co Lawyers

Counsel for the Respondent: Mr T Liu

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The oral request for an adjournment is refused.

2. Grant leave to the Applicants to rely upon the new ground as formulated in Exhibit 1.

3. Direct the Applicants to file by close of business on 8 February 2019, a further amended application containing only the ground the subject of leave in Order 2 above.

4. Any question of costs is reserved in respect of the orders made above.

5. The further amended application is dismissed.

6. The First and Second Applicants pay the Respondent’s costs including the reserved costs fixed in the amount of $7,467.00.

THE COURT NOTES THAT:

1. In granting leave in Order 2 above the Applicants no longer press the grounds in the amended application filed on 10 January 2019.

DATE OF ORDER: 7 February 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2600 of 2018

BAOJUN XIE

First Applicant

CAIFANG XIE

Second Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction in respect of a decision of the delegate made on 3 August 2018 which is not a reviewable decision and is accordingly within this Court’s jurisdiction.

2. The delegate’s decision concerned an application for a Business Skills – Business Talent (Subclass 132) Visa. The second applicant was the first applicant’s wife and was included in the application for the visa. The delegate’s decision was made in Hong Kong. The delegate’s decision expressly referred to the criteria for the grant of the visa including cl 132.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) which relevantly provides as follows:

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

3. The delegate sent the applicant an email notification on 4 June 2018 under s 57(2) of the Act in relation to the visa at pages 27 to 30 of the Court Book.

4. That email notification gave particulars of the relevant information, in this case that the applicant offered bribes amounting to RMB 100,000 to Mr Song who was the head of the Bank of China Gongyi City Branch and it was included that Mr Song was sentenced to eight years and six months imprisonment. The reporting of that open source information was identified on two website addresses.

5. Section 57(2) of the Migration Act 1958 (Cth) (“the Act”) relevantly provides as follows:

   (2) The Minister must:

   (a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

   (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

   (c) invite the applicant to comment on it.

6. The notice did address a second limb of s 57(2)(b) to ensure that the applicant understands why it is relevant to consideration of this application as the letter provided:

   The aforesaid adverse information, if substantiated, would be relevant to a consideration of whether you may have a history of unacceptable business or investment activities.

7. The email went further to explain that the delegate may not be able to make a finding that the applicants meet the relevant clauses.

8. The email also identified that:

   It also gives rise to concern on whether your assets nominated to meet clause 132.226 have been legally acquired and whether you have any undeclared liabilities.

9. On a fair reading of the email as a whole, it complied with the requirement of s 57(3) of the Act to invite the applicant to comment on the particulars of the relevant information. The email relevantly provided:

   Please provide a signed statement with supporting evidence to account for the above matter; and a comprehensive statement on all lawsuits that you, your spouse and Henan Hengxing Technology Co. Ltd. (“the Company”) had been involved in, including all pending and settled proceedings. Please provide relevant Court rulings where available. Please note that any omission is likely to be regarded as false or misleading information which may give rise to consideration under Public Interest Criterion 4020.

10. The email continued:

    Based on your response to the above, the Department may conduct background checks with the Ministry of Public Security of the People’s Republic of China which will include all your family members.

11. The email provided a timeframe for response within 28 days and identified that the response should be in writing and identified what would occur if there was no response within the relevant timeframe.

12. The Court is satisfied on the face of the email, that the delegate complied with the requirements of s 57(2)(a), (b) and (c) of the Act.

13. The applicant did provide a response consistent with the delegate having complied with the requirements of s 57(2) of the Act at page 212 of the Court Book. That response was both by way of submission, as well as providing other information. The submission in the third sentence stated “Please find our responses to your requests as below.”

14. The submission expressly quoted the reference in the notice under s 57(2) of the Act to the applicant being named in open source information in which it was alleged the applicant offered bribes amounting to RMB 100,000 to Mr Song who was the head of the Bank of China at the particular branch that is referred to above and the sentencing of Mr Song, as well as referring to the website information. The submission also noted the content of the notice as to why the relevant information was relevant to a consideration of the application, including the further reference to the issue of cl 132.226 of Schedule 2 of the Regulations as referred to above.

15. The submission then extracted the following paragraph in the s 57(2) notice referring to a request to provide a signed statement and the immediately following paragraph referring to based on your response as referred to above. The submission asserted:

    In the criminal case and Court rulings against Song Zhiwei who was the head of the Bank of China Gongyi City Branch in 2014, the primary applicant, as a witness, provided full cooperation to assist local judicial authorities with the investigation and gave testimony based on the requests of the judicial authorities.

16. The submission continued that:

    His company, his spouse and himself have never undertaken any illegal conducts and unacceptable business activities or been involved in any pending or settled law suits.

17. Reference was made in the submission to there being original copies of supporting evidences that had been posted being a personal statement signed by the primary applicant; a certificate issued by the local judicial authority that the applicant has no bribery criminal record over the past 10 years and; a notarial certificate of non-criminal record.

18. The declaration signed by the applicant at page 213 of the Court Book was almost the same as the substance of the submission, but relevantly provided confirmation that the applicant declared:

    that in the criminal case and Court rulings against Song Zhiwei who was the head of the Bank of China Gongyi City Branch in 2014, as a witness, I provided full cooperation to assist local judicial authorities with the investigation and gave testimony based on the request of the judicial authorities.

19. The declaration then continued that:

    My company, my spouse and myself have never undertaken any illegal conducts (my and my spouse’s notarised non-criminal certificates were already provided before) nor become a target of Court investigation and Court rulings.

20. The declaration then referred to the attached certificate issued by the local judicial authority as verified. The certificate by the local judicial authority at page 216 of the Court Book refers to the applicant not being found to be the subject of any bribery criminal record in the search period 14 June 2008 to 14 June 2018. A notarial certificate was also provided which referred to the applicant having no criminal offence record during his residence in the People’s Republic of China which was dated 17 April 2017.

Before this Court

1. Mr Ying at the commencement of the proceedings today sought an adjournment. These were proceedings that were commenced on 14 September 2018. The proceedings were the subject of an order made by the Court on 8 October 2018 which fixed the matter for a show cause hearing on 7 February 2019 and made orders for the filing of an amended application, affidavit evidence and submissions.

2. Following that order, on 13 December 2018 by consent, the Court made further orders extending time for the filing of an amended application and further evidence to 10 January 2019 and fixing the matter for hearing today at 11:00am. Those orders also granted liberty to apply.

3. Three further affidavits were filed on 10 January 2019 pursuant to the orders made on 13 December 2018. Those affidavits are, the affidavit of Mr Baojun Xie dated 30 November 2018, the affidavit of Mr Xinjing Liang dated 9 January 2019, and the affidavit of the applicant sworn on 24 August 2018.

4. The Court on 13 December 2018, also made an order extending time under s 477 of the Act in respect of the applicant’s proceedings extending time for the filing of the application to 14 September 2018.

5. On 10 January 2019, within the timeframe for the said orders, the applicant filed an amended application that raised five grounds. Mr Ying indicated that he wishes to raise a fresh ground in relation to legal unreasonableness. None of the grounds that had been filed squarely addressed legal unreasonableness, although the grounds did all seek to agitate the delegate’s decision in relation to the conduct the subject of the s 57(2) notice.

6. The request for an adjournment was opposed by Mr Liu of counsel on behalf of the first respondent. The orders that the Court made on 8 October 2018 provided for the filing of written submissions by the applicant by 24 January 2019. No step was taken in compliance with that order.

7. The Court indicated that it was not satisfied that an adjournment was warranted on the information currently available, but that the Court would consider whether leave should be given to the applicants to rely upon a new ground.

8. The Court adjourned for a brief period and Mr Ying produced a further proposed ground of review in substitution for the grounds in the amended application filed on 10 January 2019. Notwithstanding the opposition of the first respondent, the Court granted leave to the applicant to rely upon the new ground and the first respondent indicated it was in a position to deal with the substance of the new ground.

9. Given the history of the matter, the Court was not satisfied that an adjournment of the proceedings, beyond the temporary opportunity of providing the new ground that Mr Ying indicated that he had prepared, was appropriate and necessary in the interest of administration of justice.

The ground in the further amended application

1. The ground in the further amended application filed 8 February 2019 is as follows:

   The Respondent's delegate was acting unreasonably by considering a narrative in a Chinese court ruling which could be further appealed to higher courts and does not exist anymore, to be the absolute truth, and to ignore the Applicant's objection to the criminal allegations contained in the narrative and the heavily weighted official No Bribes Offering Activities certificate from Chinese police. Due process must be offered to the Applicant, when the Delegate take into account the facts which would amount to criminal offence. Due to the nature of the serious allegation in Delegate's finding of facts, the Delegate, without any further affirmative evidence, it is not open for the Delegate to take these criminal facts in to consideration and make a decision to say that himself/herself cannot be affirmatively satisfied that the visa criteria is met.

2. Mr Ying in expanding upon ground 1, took the Court to the material in response to the s 57(2) notice. Mr Ying submitted that the declaration was a denial or should be construed as a denial of the conduct involved in respect of the payment of bribes. Mr Ying submitted that it was not legally reasonable for the delegate to rely upon the information found in the online material referred to in the s 57(2) notice and that the delegate had given inappropriate weight to the online information.

3. The weight to be given to information before the delegate was a matter for the delegate. The delegate, in the present case, was engaged in considering whether the applicant met the requirements of cl 132.211 of Schedule 2 of the Regulations. As the delegate had complied with the requirements of s 57(2) of the Act for the reasons referred to above, it was open to the delegate to take into account that information in determining the visa application. It is apparent from the delegate’s reasons that the delegate had a real and genuine engagement with the submissions and information provided by the applicant.

4. The delegate expressly referred to the submission received on 25 June 2018 and the provision of a statement that identified the applicant having been a witness during the investigation and that the applicant gave testimony based on the request of the judicial authorities. The delegate’s reasons also referred to the certificate that had been provided to prove the absence of the applicant’s criminal record in the relevant 10 year period, the subject of the certificate, as well as a no criminal record certificate up to 11 April 2017.

5. The delegate found that there was credible evidence in the form of the judgment by the Court that the applicant offered bribes to the head of the Bank of China, Gongyi City Branch, in connection with the company’s business activities. The delegate found, according to the judgment, that Mr Song’s statements to the procurator during the investigation and Mr Song admitted that the applicant had given a total of RMB 100,000 to Mr Song on two separate occasions to expedite the approval of the company’s loan application. The Court held that Mr Song, as a civil servant, had broken the law for accepting monetary gifts from the applicant. The delegate found the adverse information was put to the applicant for comment and, materially, the delegate found the applicant did not deny having given RMB 100,000 to Mr Song. That was a finding that open to the delegate on the material before the delegate.

6. The declaration by the applicant and the submissions clearly engaged with the substance of the notice and acknowledged that the applicant was a witness and provided testimony. There was no denial in the submissions or in the declaration that the applicant had given a total of RMB 100,000 to Song by way of bribes in connection with the recipient, being the head of a particular bank branch. It was in those circumstances that the delegate found the offering of bribes constituted conduct that is not an acceptable business activity in Australia and was unable to make a finding that the applicant did not ever have a history of involvement in business activities that are of a nature that is not generally unacceptable in Australia and found that the applicant failed to meet the criteria under cl 132.211 of Schedule 2 of the Regulations.

7. Mr Ying submitted that the delegate should not have relied upon the information that was online. That contention does not identify any relevant error or unreasonableness by the delegate in finding that there was credible evidence or in the adverse findings made by the delegate. There was no legal unreasonableness in process, conduct or outcome by the delegate in the adverse determination of the application for the visa in the present case.

8. The applicant’s disagreement with the significance of the information and the absence of any criminal allegation against the applicant or any finding of guilt does not establish any illogicality, irrationality or unreasonableness in the adverse finding in respect of business activities in respect of which the applicant had an involvement. The applicant did not have to be convicted of any criminal offence in respect of his conduct. The proceedings against Mr Song provides a logical explanation for the acceptance of the role engaged in by the applicant.

9. Mr Ying sought to go beyond his grounds in the application and submitted that the paying of a bribe by the applicant would not constitute business activities. The relevant provision refers to a history of involvement in business activities. A payment of a bribe to the head of a branch of a bank is clearly within the broad scope of meaning of “business activities”. There is no substance in this contention, even though it was not expressly raised in the grounds.

10. Mr Ying also submitted that there had been a failure to follow due process in that the applicant should not have been the subject of any finding concerning the business activities the subject of the s 57(2) notice without appropriate criminal proceedings. That misunderstands the nature of the administrative proceedings. It was open to the delegate to make findings in relation to business activities and the applicant’s involvement in those business activities.

11. The delegate did not make a finding as to whether the applicant had committed any criminal offence. There is no substance in the assertion that there was some want of due process that gives rise to any jurisdictional error.

12. Further, for the reasons earlier given, the delegate’s review of the application and compliance with the requirements of s 57(2) of the Act means that the determination by the delegate was one made in accordance with the applicable law. There is no substance in the contention that there is some jurisdictional error by reason of the applicant not in fact having been found to be guilty of any criminal offence.

13. Mr Ying also referred to the seriousness of the allegations and contended that it was not open to the delegate to make adverse findings in respect of such a serious issue that could, on its face, according to Mr Ying, constitute a criminal offence under Article 389 of the Criminal Law of the People’s Republic of China. The delegate was not determining whether there had been committed a criminal offence. Rather, the delegate was taking into account the history of the applicant’s involvement in business activities. The principles in Briginshaw v Briginshaw [1938] HCA 34 have no application to administrative proceedings.

14. The adverse findings by the delegate in the present case were reasonable and open to the delegate for the reasons given. No jurisdictional error arises by reason of Mr Ying’s submissions concerning the seriousness of the allegations.

1. Mr Ying also submitted that the taking into account of the online material was an irrelevant consideration. The online material clearly referred to matters capable of falling within the applicant’s history of involvement in business activities and cannot be said to be legally irrelevant as a consideration in the determination of the criteria under cl 132.211 of Schedule 2 of the Regulations. No jurisdictional error is made out based on the assertion of taking into account irrelevant considerations.

2. The ground in the further amended application in essence, takes issue with the adverse finding by the delegate in relation to the subject matter under s 57(2) notice and refers to the content of the declaration and submissions advanced on behalf of the applicant in response to the s 57(2) notice. The absence of the applicant being the subject of criminal proceedings does not render illogical, irrational or unreasonable the findings by the delegate that the applicant engaged in conduct falling within cl 132.211 of Schedule 2 of the Regulations by reason of giving bribes totalling RMB 100,000 to Mr Song, the head of the relevant bank branch.

3. The issue before the delegate is not whether there had been committed an offence. There is no substance in the contention that the delegate could not, in the circumstances where the delegate complied with s 57(2) of the Act, take into account the relevant information. The applicant’s contention that only Courts can determine guilt is irrelevant because that is not what the delegate was doing. The applicant had ample opportunity to provide an explanation and did not do so.

4. To the extent that the applicant submits that there had been a denial of the giving of bribes in his declaration, that seeks to take issue with the findings made by the delegate. The declaration did not expressly address the giving of bribes and it was clearly open in the circumstances for the delegate to find, as the delegate did, that the applicant did not deny having given RMB 100,000 to Mr Song.

5. The assertion that the declaration and submissions amounted to a denial of the giving of bribes is, in substance, an invitation to this Court to engage in a merits review. The adverse finding’s by the delegate were open for the reasons given by the delegate.

6. Further, the Court considers that the delegate was correct to understand that there was no denial of having given a bribe in the amount of RMB 100,000 to Mr Song and the Court does not accept there was any language or interpretation misunderstanding of the response to the s 57(2) notice, given the detail that was addressed in respect of criminal activities and criminal records, as well as the identification of having been a witness and giving evidence.

7. Accordingly, no jurisdictional error of the kind alleged in ground 1 in the further amended application is made out.

8. As the further amended application fails to make out any jurisdictional error, accordingly the further amended application is dismissed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  25 June 2019