Xiong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1075
•20 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Xiong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1075
File number: PEG 246 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 20 May 2021 Catchwords: MIGRATION – Regional Sponsored Migration Scheme visa – decision of the Administrative Appeals Tribunal – time from which PIC 4013 runs – no jurisdictional error – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 43(1)
Migration Act 1958 (Cth) ss 48, 101(b), 103, 105, 107, 109, 349(1), 34(2), 476
Migration Regulations 1994 (Cth) reg 2.41, cl 500.217 of Schedule 2, PIC 4013, 4020
Cases cited: Igbolekwu (Migration) [2019] AATA 327
Josan v Minister for Immigration & Anor [2016] FCCA 493
Josan v Minister for Immigration and Border Protection [2017] FCA 1418
Kim v Minister for Immigration & Citizenship [2008] FCAFC 73
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167
Shi v Migration Agents Registration Authority [2008] HCA 31
Number of paragraphs: 92 Date of hearing: 7 April 2021 Place: Perth Counsel for the Applicants: Mr D Blades Solicitor for the Applicants: AH2 Legal Counsel for the First Respondent: Ms A Ladhams Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 246 of 2020 BETWEEN: HONG XIONG
First Applicant
JUYING CHEN
Second Applicant
CHEN XIONG
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
20 MAY 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL:
INTRODUCTION
The applicants are citizens of China. The first applicant and the second applicant are husband and wife respectively. The third applicant is their child. The first applicant arrived in Australia in October 2012 on a subclass 457 visa (Court Book (“CB”) 87-91). The second applicant appears to have arrived in Australia in May 2013 and the third applicant in July 2013.
On 1 September 2015, the applicants were granted a Regional Sponsored Migration Scheme (subclass 187) visa (the “visa”) (CB 29).
On 10 January 2017, the then Department of Immigration and Border Protection sent the applicants a Notice of Intention to Consider Cancellation (the “NOICC”) (CB 11-21). The NOICC stated that it appeared that the first applicant had failed to comply with ss 101(b) and 103 of the Migration Act 1958 (Cth) (the “Act”) as the first applicant had allegedly provided an incorrect answer in his visa application and given the Department a bogus document. The applicants were advised that, if the Department was satisfied that the applicants had not complied with either ss 101(b) or 103 of the Act, the first applicant’s visa might be cancelled pursuant to s 109 of the Act. Further, if that occurred, the second applicant and the third applicant’s visas would also be cancelled.
On 2 February 2017, the applicants’ migration agent requested an extension of time within which to respond to the NOICC (CB 23). The Department advised that while it was not able to extend the time within which to respond, the Department would take any information provided prior to the decision into consideration (CB 24).
No further information was provided.
On 16 February 2017, a delegate of the first respondent (the “Minister”) cancelled the first applicant’s visa pursuant to s 109 of the Act (CB 26-35). The delegate found that the first applicant had failed to comply with ss 101(b) and 103 of the Act and no reasons had been provided by the applicants explaining why the visa should not be cancelled.
On 17 February 2017, the applicants’ migration agent provided to the Department a response to the NOICC (CB 37-65). On 22 February 2017, the delegate advised the agent that a decision had already been made (CB 66).
On 27 February 2017, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for a review of the delegate’s decision (CB 79-81).
On 5 February 2020, the applicants’ migration agent provided an outline of written submissions and various supporting documents to the Tribunal. These documents included a number of statutory declarations, educational documents relating to the applicants’ son and property reports (CB 137-179). The applicants also requested that the Tribunal take evidence from the first applicant, the third applicant and two supporting witnesses (CB 184-185).
On 13 February 2020, the applicants appeared before the Tribunal (CB 189-191). The applicants were given until 19 February 2020 to provide further information.
On 18 February 2020, the applicants’ agent provided a further written submission to the Tribunal. The submission asked that the Tribunal consider making a recommendation for Ministerial Intervention in relation to the third applicant (CB 193-195).
On 23 July 2020, the Tribunal affirmed the delegate’s decision to cancel the first applicant’s visa (CB 200-216). The Tribunal also found that it had no jurisdiction in relation to the second applicant and the third applicant.
On 20 August 2020, the applicants applied for judicial review of the Tribunal’s decision in this Court. The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 17 pages long and spans 98 paragraphs.
The Tribunal began by identifying the visa that was cancelled. It then summarised the delegate’s determination. The Tribunal noted the documents provided by the applicants and outlined the relevant procedural history. Finally, the Tribunal confirmed that the applicants had attended a hearing and evidence had been provided by the applicants and two witnesses (at [1]-[13]).
The Tribunal determined that it had no jurisdiction in relation to the second applicant and the third applicant as no “decision” had been made in relation to their visas. Rather, their visas were cancelled by operation of the statute - specifically s 140(1) of the Act (at [6]).
The Tribunal identified that the issue in the matter before it was whether the ground for cancellation was made out and, if so, whether the visa should be cancelled (at [15]). The Tribunal summarised the scope of s 109 of the Act (and any related provisions) and noted that the power to cancel the visa under s 109 of the Act would only arise if the first applicant had been issued and had received a valid NOICC as per s 107 of the Act (at [16]-[17]).
The Tribunal first considered whether the NOICC had complied with the requirements of s 107 of the Act. The Tribunal noted key parts of the NOICC and confirmed it was satisfied that the delegate had reached the “necessary state of mind” to engage with s 107 of the Act. Further, it was determined that the NOICC had complied with the requirements of s 107 if the Act (at [18]-[19]).
The Tribunal then considered whether there was “non-compliance” as that term is described in the NOICC. The Tribunal determined that the NOICC identified that the first applicant had not complied with ss 101(b) and 103 of the Act and set out in full what particulars the NOICC had provided in relation to non-compliance with these provisions (at [21]).
The Tribunal then noted that the submissions sent to the Department (although received after the decision had been made) stated that one error in the visa application was an error on the part of the migration agent (at [22]). However, the submissions also admitted that the first applicant had provided incorrect information and a bogus document and was deeply remorseful and regretted doing so (at [23]).
The Tribunal noted that, at the hearing, the first applicant had confirmed that he had not complied with ss 101 and 103 of the Act and repeated that he was regretful and remorseful for what had occurred (at [24]).
The Tribunal continued:
25. On the evidence before it, the Tribunal finds that the information given in the visa application form about the applicant having sat an IELTS test is incorrect. Accordingly, the applicant has not complied with s.101(b) as described in the notice. The Tribunal further finds that the IELTS report provided with the application is a bogus document, as defined in s.5(a) of the Act, because the Tribunal reasonably suspects that the document purports to have been, but was not, issued in respect of the applicant. Accordingly, the applicant has not complied with s.103 as described in the notice.
26. For these reasons, the Tribunal finds that there was non-compliance with s.101 and s.103 by the applicant in the way described in the s.107 notice.
The Tribunal then explained that a visa cancellation pursuant to s 109 of the Act is discretionary (at [27]). It noted that it was required to consider the first applicant’s response (if any) to the NOICC and the prescribed circumstances in reg 2.41 of the Migration Regulations 1994 (Cth) (the “Regulations”) (at [28]).
In relation to the “correct information”, the Tribunal noted that the first applicant had knowingly provided incorrect information in order to secure a migration outcome (at [29]). The Tribunal referred to the first applicant’s evidence that he sincerely regretted his actions and only did so because he wanted to look after his family and “make a better future for his son” (at [30]).
The Tribunal continued:
31. The Tribunal gives some favourable weight to the applicant’s prompt admission of wrongdoing. However, the Tribunal also notes that if the correct information about the applicant having not undertaken the IELTS test was known by the Department, the applicant would not have been granted the visa. This consideration weighs in favour of cancellation.
The Tribunal then considered the “content of the genuine document”. It identified that the relevant document in this case was an English Language test and that the applicant had not attended or sat the test. Rather, the results were achieved by an “imposter” (at [32]). The Tribunal again referred to the first applicant’s evidence (where he was apologetic and indicated that he loved Australia and “wanted to stay”) (at [33]).
The Tribunal continued:
34. The Tribunal acknowledges that the applicant was in Australia on a temporary work (Subclass 457) visa at the time he applied for the Regional Sponsored visa, the subject of this review, however, wishing to remain in Australia does not justify the provision of a bogus document in support of a visa application. The Tribunal considers that if the Department had known that the scores in the IELTS test report submitted with the visa application were achieved by someone other than the applicant, they would not have granted the applicant the visa. This consideration weighs in favour of cancelling the visa.
The Tribunal then determined as follows:
35. Subject to specified exemptions, the applicant would have had to demonstrate that he had the required level of English language proficiency to be granted the permanent Regional Sponsored visa. The Tribunal considers that the decision to grant the applicant the visa was based partly on the incorrect information provided in the application form about him having sat an IELTS test and the corresponding bogus document, namely the IELTS test report, indicating that the applicant had achieved the required scores.
When asked to comment, the applicant explained that he was sorry and stressed that he came to Australia because there was “a need for his trade” and he wanted to “use his skills” to assist (at [36]).
The Tribunal continued:
37. The Tribunal has considered the evidence relating to the applicant’s skills and his contribution to Australia further below. However, against this consideration, the Tribunal finds that the decision to grant the applicant the visa was based, in part, on the incorrect information and bogus document. The Tribunal gives substantial weight to this consideration in favour of cancelling the visa.
The Tribunal then considered the circumstances in which the non-compliance had occurred. The Tribunal determined as follows:
38. The non-compliance occurred when the applicant lodged the Regional Sponsored visa, which included incorrect information and a bogus document.
39. At the hearing, the Tribunal put to the applicant that on the evidence before it, it appears that he knowingly and deliberately provided incorrect information and a bogus document at the time of the visa application so as to secure a migration outcome and that it considered his conduct, which purposely sought to mislead the Department, weighs strongly in favour of cancelling the visa.
In response, the first applicant indicated that he regretted his actions and wanted another opportunity “to do something beneficial” (at [40]).
The Tribunal then found as follows:
41. The Tribunal acknowledges the applicant’s remorse and has considered his willingness to contribute to the training of young Australians further below, however, this does not change the fact that the applicant knowingly sought to defraud the Department to secure a permanent visa. This consideration weighs strongly in favour of cancelling the visa.
The Tribunal then considered the first applicant’s current circumstances. It noted that the first applicant had been in Australia since October 2012 and that he had a wife and a child (at [42]-[44]).
The Tribunal summarised the first applicant’s evidence, submissions and the materials before it as follows:
(a)the first applicant and the second applicant own property in Australia which they are making mortgage payments on. The current value of the home is less than the price paid to purchase the property and, if the applicants had to sell, they would incur a financial loss. Further, the applicants do not own property in China and it would be difficult to relocate (at [45]);
(b)the first applicant has been employed since 2012 and has paid his taxes. His role is to teach apprentices and he can communicate in conversational English. His manager is aware of the fraudulent documents but provided a letter of support because the first applicant is a hard worker (at [46]-[47]);
(c)a statutory declaration from the first applicant’s production manager states that the first applicant has an important mentoring role and is not readily replaceable. The value of the first applicant’s contribution to the business is about $200,000 and there will be an economic loss to the business and a loss in quality training if the visa is cancelled (at [48]). At the hearing, the manager stated that the first applicant was a highly skilled senior fitter and it is difficult to secure employees of his calibre (at [49]);
(d)the first applicant stated that it would be difficult to secure employment in China because of his age. Further, while he could survive in China he can “have good meals in Australia” (such as meat). In China he will have “simple meals” and will not have enough funds to support his parents (at [50]);
(e)the first applicant’s siblings are Australian permanent residents but his parents remain in China. The first applicant has a close relationship with his siblings and the siblings provided evidence that the applicants, in particular the third applicant, would face hardship and difficulties if they returned to China (at [53]). The second applicant’s family remains in China. The applicants have no assets in China (at [51]); and
(f)the first applicant has returned to China once since 2013 but the second and third applicants have not done so (at [52]).
The Tribunal then considered the evidence, submissions and materials as follows:
55. The Tribunal accepts that the applicant and his family have resided in Australia for over 7 years. While this may seem like a long period of time, the Tribunal notes that for much of that period the applicant and his family were holders of temporary visas. Furthermore, the applicant has been on notice, since January 2017 when the cancellation notice was issued, that his permanent employer sponsored visa, which he held for less than one and a half years, was subject to cancellation.
56. The Tribunal acknowledges that the applicant and his spouse have purchased a property in Australia and accepts that they have no assets in China. The Tribunal gives some favourable weight to the fact that the applicant has assets, and hence financial ties, in Australia.
57. The Tribunal also considers that the applicant and his spouse could sell their property in Australia and while they may not be able recoup the full amount they paid for the property, the Tribunal considers that given they only have a mortgage of $186,128 remaining, they would still have a substantial amount (approximately $300,000) if they sold it at the estimated value of $490,000. The Tribunal considers that that the applicant and his family can rely on these funds to re-establish themselves in China and support the parents.
58. The Tribunal also accepts that the applicant has strong family ties, given the presence of his siblings, both of whom are permanent residents, in Australia. The Tribunal accepts that the applicant and his brothers are close, support one another and spend a lot of time together. While the Tribunal gives some favourable weight to the applicant’s family ties in Australia, it also notes that the applicant and his spouse have family in China, including his and his spouse’s parents and his spouse’s sister.
59. In relation to the applicant’s employment, the Tribunal acknowledges that the applicant is employed by a business that values him. The Tribunal accepts that the applicant is a skilled fitter who trains young Australians in the trade and that replacing him would be difficult and may cause an economic loss for the business. While these factors weigh in favour of not cancelling the visa, the Tribunal also notes, as indicated by the applicant and Mr Lee’s evidence, that SVA is a large business which employs other fitters. While SVA may be inconvenienced and may experience some financial loss if it could not maintain the applicant’s employment, the Tribunal considers that this would be limited. The Tribunal has formed the view that the business, given its size and employment of other fitters, would be able to make alternative arrangements for the training of its apprentices until a replacement could be found.
60. The Tribunal acknowledges the applicant’s concern about securing employment in China because of his age. The Tribunal considers however that the applicant, who is 46 years of age, still has many working years left. While the Tribunal acknowledges the difficulties that the applicant may initially encounter in securing employment upon returning to China, the Tribunal considers that the applicant’s extensive experience as a fitter in China and Australia would stand him in good stead to secure suitable employment in China. The Tribunal does not discount the challenges and difficulties, including the financial and emotional hardship, that the applicant and his family would encounter upon their return to China. The Tribunal acknowledges that the applicant prefers to live in Australia where he is employed, has assets, has siblings and can have better meals.
61. In considering the applicant’s present circumstances, the Tribunal accepts that many aspects of those circumstances, including his financial ties, current employment and family ties weigh in favour of not cancelling the visa.
In relation to the subsequent behaviour of the first applicant (as per his statutory obligations), the Tribunal noted that the first applicant did not comply with s 105 of the Act as he never informed the Department that he had provided incorrect information (at [62]). However, there was no information before the Tribunal to suggest that the first applicant had failed to comply with any other obligations in the five years that had elapsed since this non-compliance (at [63]-[64]). Nor was there anything to indicate that the first applicant had breached the law since the non-compliance (at [65]).
The Tribunal accepted that the first applicant had contributed to the community and gave this some weight in his favour (at [66]).
The Tribunal then noted that it had had regard to the Department’s Procedures and Advice Manual in relation to “General Cancellation Powers” (at [67]).
The Tribunal then considered the legal consequences for the first applicant if the visa was cancelled (at [68]). The Tribunal explained:
69. The cancellation of the applicant’s visa would result in the applicant being unlawful and subject to detention only in circumstances where the applicant does not apply for another visa to remain lawfully in Australia or does not depart Australia before any visa held by him ceases. The Tribunal acknowledges that due to the circumstances of Covid-19 and restrictions placed on international travel, that the applicant and members of his family may not be able to depart Australia for some time. The Tribunal notes however that in the circumstances the applicant and his family would be able to apply for bridging E visas which, if granted, would enable them to remain lawfully in Australia until such time they are able to depart.
70. The Tribunal also notes that if the applicant’s visa is cancelled, he would be affected by s.48 of the Act and would not be able to make a valid application for a substantive visa in Australia, other than the limited types prescribed in r.2.12, such as protection and partner visas.
71. The Tribunal considers that any adverse consequences of cancellation, as discussed above, are intended by the legislation and accordingly gives this consideration limited weight in favour of not cancelling the visa.
72. The delegate noted in the decision record that if the applicant’s visa is cancelled, he would be affected by Public Interest Criterion 4013 (PIC 4013) which would limit the granting of a further temporary visa for a specified period. The Tribunal notes that PIC 4013 imposes a ban of three years ‘after cancellation of the visa’ from making an application for another visa for which PIC 4013 must be satisfied, unless the Minister is satisfied that there are compelling circumstances that affect the interest of Australia or compelling or compassionate circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa within 3 years after the cancellation. The Tribunal notes that the applicant’s visa was cancelled by the delegate on 16 February 2017. Therefore, more than three years have passed since the delegate made the decision to cancel the applicant’s visa. If the Tribunal decides that the visa should be cancelled, then the delegate’s decision remains unchanged and the applicant’s visa is taken to have been cancelled on 16 February 2017. In the circumstances, as more than three years have now passed, the applicant will not be affected by PIC 4013.
The Tribunal also considered whether any international obligations would be breached (at [73]).
The Tribunal noted that the first applicant had given evidence that he had a health condition – his “skin is dry and it cracks when it is cold” – and noted that the third applicant has been in Australia since he was 13. Further, the third applicant’s qualifications cannot be relied upon to secure employment in China (at [74]).
The Tribunal noted that that there was limited evidence before it to suggest that Australia’s non-refoulement obligations would be breached as a result of the cancellation. At the time of the Tribunal’s decision the third applicant was 19 years of age and he was no longer a child (as defined in the Convention on the Rights of the Child) (“CROC”). The Tribunal noted that if the first applicant’s visa is cancelled, the second applicant and the third applicant’s visa will also be cancelled. However, as they are all citizens of China they will be able to reside in China as a family (at [76]).
The Tribunal noted that the second applicant and the third applicant were not aware of the first applicant’s non-compliance and were “innocent victims of his wrongdoing” (at [77]). The Tribunal summarised the second applicant’s evidence. This included her evidence that there is “nothing in China” for the family, it will be hard for the family to afford a house and she is concerned about the third applicant’s welfare (at [78]-[80]).
The Tribunal continued:
81. The Tribunal acknowledges the emotional and financial hardship that may be experienced by Ms Chen if the visa is cancelled and she has to return to China. The Tribunal also acknowledges Ms Chen’s concerns about readapting to life in China and securing employment there. The Tribunal notes however that China is Ms Chen’s home country, she is fluent in the language and she has family, including her parents and sister, who reside in China. Also, as discussed above, Ms Chen and the applicant can choose to sell their property in Australia and live off the proceeds upon discharging the mortgage. This could ameliorate any financial hardship that may they may initially experience upon their return to China. The Tribunal nevertheless gives some weight to the hardship that may be experienced by Ms Chen in favour of not cancelling the visa.
82. The Tribunal also acknowledges Ms Chen’s concern about her son’s future and the difficulties he may experience if he had to return and readapt to life in China, given he has spent his adolescent years in Australia. The Tribunal gives some weight to this consideration in favour of not cancelling the visa. The Tribunal though also formed the view that the applicant’s son, who is now an adult, can seek advice regarding his options for returning to Australia on another visa.
The Tribunal then summarised the third applicant’s evidence. This included his evidence that he has longstanding friendships in Australia, his Chinese language skills are “barely functional” and his qualification was “different” (at [83]). The Tribunal also summarised the evidence of the third applicant’s boss (who praised the third applicant’s skills and his role in helping the business expand) (at [84]).
The Tribunal continued:
85. After the hearing, the Tribunal received a written submission from the representative in response to the Tribunal’s observation, as noted at the hearing, that Mr Chen Xiong would not be affected by the risk factor in PIC 4013, which imposes a three year ban on applying for another visa from the date of cancellation, and that he could be sponsored for a work visa by his employer. It was submitted that even if Mr Chen Xiong is not affected by PIC 4013 and could apply for another visa from offshore, it is doubtful that the Department would grant him a visa without issue given his background and travel history. It was also submitted that even though Mr Song confirmed at the hearing that he is willing to sponsor Mr Chen Xiong for a work visa, Mr Chen Xiong only holds a certificate III in cookery and does not have the required level of qualification or employment experience to be eligible for sponsorship under the current work programs, some which require a diploma level qualification and up to three years of full time experience. It was submitted that Mr Chen Xiong would have to continue studies in Australia for another two years and work full time as a chef or cook for at least two years post-graduation to be eligible for sponsorship.
86. In addition to the above, it was also submitted if the applicant’s visa remains cancelled, it would prevent Mr Chen Xiong’s study plans and he would not be able to contribute to Australian business or the community. It was submitted that the son’s continued stay in Australia would contribute to Australian schools, business and communities through him undertaking further studies in Australia as an international student, part-time employment, including assisting his employer to expand the business and establishing his own restaurant. It was submitted that the applicant is a victim of his father’s non-compliance and would experience difficulties if he has to return to China and that it would take a long time for him to adapt without the support of family and friends, all of whom are in Australia.
87. The Tribunal has had regard to the evidence before it regarding the hardship that would be experienced by the applicant’s son if the visa is cancelled. The Tribunal acknowledges that notwithstanding Mr Song’s willingness to sponsor Mr Chen Xiong, he may not meet the minimum skills, qualifications and employment requirements for a work visa. The representative’s submission suggested that Mr Chen Xiong may wish to study further in Australia. The Tribunal notes that it is also possible for Mr Chen Xiong to apply for a student visa so that he can complete further studies in Australia. While there is no guarantee that such a visa would be granted, the Tribunal nevertheless considers that this is an option that is open for Mr Chen Xiong to pursue. The Tribunal has also had regard to the fact that Mr Chen Xiong would not be able to apply for a student visa in Australia if his visa is consequentially cancelled, as he would be barred from doing so by s.48 of the Act. In the circumstances, Mr Chen Xiong would have to make the student visa application from offshore. The Tribunal notes that Mr Chen Xiong would not be affected by the three year ban in PIC 4013, which relates to cancellations under s.109 of the Act, because the cancellation of Mr Chen Xiong’s visa would be under s.140 of the Act, and not be under s.109 of the Act, being the section under which his father’s visa is liable for cancellation.
88. The Tribunal also acknowledges the difficulties and the hardship that Mr Chen Xiong may experience if his father’s visa is cancelled and he has to return to China and adjust to life there. The Tribunal gives some weight to the emotional hardship that may be experienced by Mr Chen Xiong if he had to return and readjust to life in China, given he has spent most of his teenage years in Australia where he has formed friendships and has secured employment. The Tribunal acknowledges, as submitted by the representative, that Mr Chen Xiong wishes to pursue further studies and work in Australia, the Tribunal acknowledges that Mr Chen Xiong may not be able to apply for an appropriate visa in Australia which would enable him to do this if his father’s visa is cancelled and he may have to return to China to lodge an application from offshore. The Tribunal also accepts that Mr Chen Xiong, who played no part in his father’s wrongdoing, is an innocent victim of his father’s noncompliance. The hardship that may be experienced by Mr Chen Xiong if his visa is consequentially cancelled weighs in favour of not cancelling the visa.
89. The Tribunal further notes that given the current circumstances due to Covid-19 and the travel restrictions, Mr Chen Xiong may not be able to depart Australia in the foreseeable future. In the circumstances, Mr Chen Xiong can apply for a bridging E visa to allow him to remain lawfully in Australia until any travel restrictions are eased and he is able to depart Australia. The Tribunal also notes that Mr Chen Xiong may be able to seek permission to study and work whilst living in Australia on a bridging E visa.
90. The Tribunal has also considered the hardship that may be experienced by Mr Song and the disruption that may occur to his business expansion plans if he could not maintain the employment of Mr Chen Xiong. The Tribunal, however, gives limited weight to this hardship because the Tribunal does not consider it an uncommon occurrence for a small business to lose a valuable employee.
The Tribunal accepted that the first applicant possesses suitable skills in an area where there is a skill shortage in Western Australia and determined that this weighed in favour of not cancelling the visa (at [91]-[92]).
The Tribunal concluded:
93. In considering whether the visa should be cancelled, the Tribunal has carefully weighed up all the relevant circumstances. In this case, there are circumstances that weigh in favour of not cancelling the visa, such as the applicant’s employment in an in demand occupation, his family, employment and financial ties to Australia and the emotional and financial hardship that may be experienced by the applicant’s spouse and son, who were not involved in any wrongdoing.
94. Against the above however are circumstances which weigh strongly in favour of cancellation, with the most significant of these being the fact that the applicant would not have been entitled to the grant of the employer sponsored visa had the Department known that an imposter, and not the applicant, had sat the English language test and achieved the scores that the applicant relied upon in his application for the visa. The applicant’s conduct in providing incorrect information and a bogus document to secure a permanent visa was deliberately deceptive and seriously undermined the integrity of Australia’s migration program. For these reasons, the Tribunal considers that the visa should be cancelled.
95. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
96. The representative has requested that the Tribunal consider referring the matter to the Minister for intervention in the family’s situation, and particularly that of the applicant’s son. The Tribunal does not consider it appropriate to refer the matter to the Minister, mainly because the compassionate circumstances that arise in this case relate to the applicant’s son and the Tribunal has no jurisdiction in respect of the son as his visa was cancelled by operation of law under s.140 of the Act. Furthermore, given the adverse findings made regarding the applicant’s conduct, the Tribunal does not consider it appropriate to refer this matter. The Tribunal notes however that the applicant can still make a direct request to the Minister under s.351 of the Act.
On the basis of the above, the Tribunal affirmed the decision to cancel the first applicant’s visa (at [97]).
PROCEEDINGS IN THIS COURT
On 20 August 2020, the applicants filed a judicial review application in this Court. That application outlined one ground of review with particulars, as follows:
1.The Tribunal made a jurisdictional error in finding at [72] that in the circumstances, as more than three years have now passed, the applicant will not be affected by PIC 4013.
Particulars
a. PIC 4013(1)(a) applies where an application for a visa is made more than 3 years after the cancellation of the visa or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant- in this case subclause (IA) of PIC 4013.
b. The ban of three years ‘after the cancellation of the visa’, for the purposes of PIC 4013(l)(a), commenced from the date of the Tribunal’s decision (23 July 2020), not the date of the delegate’s decision which was 16 February 2017.
The applicants filed an affidavit of Hui Ming Chung affirmed 2 November 2020. The affidavit annexes a copy of the transcript of the hearing before the Tribunal on 13 February 2020.
The materials before the Court include those referred to above, a Court Book numbering 216 pages (exhibit 1), outlines of submissions filed by the applicants on 10 March 2021 and 21 April 2021 and outlines of submissions filed by the Minister on 24 March 2020 and 5 May 2021.
The applicants were represented by Mr Blades. The Minister was represented by Ms Ladhams. Mr Blades and Ms Ladhams both provided oral submissions. The Court thanks both lawyers for the clarity of their oral and written advocacy.
PIC 4013
The only issue on appeal in this case relates to the application of Public Interest Criterion 4013 (“PIC 4013”).
Many visa categories require that PIC 4013 be satisfied before an applicant can be granted a visa. For example, to be granted a student visa an applicant must satisfy PIC 4013: the Regulations, cl 500.217.
PIC 4013 is in the following terms:
4013
(1) If the applicant is affected by a risk factor mentioned in subclause (1A), (2), (2A) or (3):
(a) the application is made more than 3 years after the cancellation of the visa or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or
(b) the Minister is satisfied that, in the particular case:
(i) compelling circumstances that affect the interests of Australia; or
(ii) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa within 3 years after the cancellation or determination.
(1A) A person is affected by a risk factor if a visa previously held by the person was cancelled:
(a) under section 109, paragraph 116(1)(d), subsection 116(1AA) or (1AB) or section 133A of the Act; or
As Ms Ladhams for the Minister submitted, PIC 4013 is not a “banning” provision. It simply creates a “preclusion period” that imposes a restriction (of sorts) when an applicant applies for certain visas. Using the example of the student visa above, if an applicant applies for a student visa and has had a visa cancelled within the previous three years, unless they satisfy a delegate that PIC 4013(1)(b) is met, the applicant cannot be granted the visa. They do not meet cl 500.217(1) in those circumstances.
PIC 4013 does not prevent an applicant from applying for a visa. PIC 4013 is not akin to s 48 of the Act whereby an applicant is barred from making an application. The effect of PIC 4013 is that applicants who apply for a visa within three years of having another visa cancelled cannot be granted the visa unless certain circumstances exists or certain conditions are met (see, PIC 4020(1)(b)).
CONSIDERATION
The sole ground of review is narrow. It focusses on the Tribunal’s findings at [72], as follows:
72. The delegate noted in the decision record that if the applicant’s visa is cancelled, he would be affected by Public Interest Criterion 4013 (PIC 4013) which would limit the granting of a further temporary visa for a specified period. The Tribunal notes that PIC 4013 imposes a ban of three years ‘after cancellation of the visa’ from making an application for another visa for which PIC 4013 must be satisfied, unless the Minister is satisfied that there are compelling circumstances that affect the interest of Australia or compelling or compassionate circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa within 3 years after the cancellation. The Tribunal notes that the applicant’s visa was cancelled by the delegate on 16 February 2017. Therefore, more than three years have passed since the delegate made the decision to cancel the applicant’s visa. If the Tribunal decides that the visa should be cancelled, then the delegate’s decision remains unchanged and the applicant’s visa is taken to have been cancelled on 16 February 2017. In the circumstances, as more than three years have now passed, the applicant will not be affected by PIC 4013.
The applicants argue that the Tribunal misconstrued Public Interest Criterion 4013. In effect, the question they pose is: when did the three year “preclusion period” start? Put another way, on what date is “3 years after the cancellation” taken from? Is it the delegate’s decision or is it the Tribunal’s decision? In this matter, if it is taken to be from the date of the delegate’s decision then the applicants will meet PIC 4013 and will satisfy any relevant visa criterion. If, however, it is taken from the date of the Tribunal’s decision then the applicants will not meet PIC 4013 until 3 years after the Tribunal’s decision.
At the hearing, Mr Blades stressed that the three year period in PIC 4013(1)(a) “kicks in” from the delegate’s decision. If there is no review lodged, then the period commences from the date of the delegate’s decision. If, however, the applicant applies for merits review, then the operative date is the date of the decision made in relation to the merits review application (i.e., the Tribunal’s decision). In effect, the applicants’ submission is that, here, the three year ban began on 22 July 2020 (the date of the Tribunal’s decision).
The Minister disagrees and contends that the three year ban began from the date of the delegate’s decision – being 16 February 2017. Accordingly, the Tribunal did not misconstrue PIC 4013 as the three year ban expired on 16 February 2020.
In Josan v Minister for Immigration & Anor [2016] FCCA 493 (“Josan”), a Judge of this Court found that the three year ban (in that case under Public Interest Criterion 4020(2)) commenced at the date of the delegate’s decision (at [58]). In Josan, the Court found that the exclusion period under PIC 4020(2) expired on 21 February 2016 (which was three years after the date of the delegate decision) and not on 1 June 2017 (which was three years after the Tribunal affirmed the delegate’s decision). On appeal, in Josan v Minister for Immigration and Border Protection [2017] FCA 1418 at [23], the Federal Court declined to comment on whether that view was correct.
Before this Court, Mr Blades drew attention to the difference in language used in PIC 4020 (which was considered in Josan) and PIC 4013 (which is relevant to this case). Mr Blades argued that Josan was correctly decided.
Ms Ladhams also made oral submissions in relation to Josan and acknowledged that PIC 4020 was in different terms. However, Ms Ladhams submitted that, by analogy, it was still relevant.
PIC 4020 and PIC 4013 are not in identical terms. The Court is also not bound by Josan.
Mr Blades referenced and relied on the decision of the Administrative Appeals Tribunal in Igbolekwu (Migration) [2019] AATA 327 at [81] (“Igbolekwu”). In Igbolekwu, the Tribunal found that a consideration of PIC 4013 was relevant to the consideration of whether to cancel the visa. Mr Blades argues that Igbolekwu supports the argument that the three year ban enlivened by PIC 4013 commences from the date of the Tribunal’s decision.
At [81], the Tribunal in Igbolekwu determined as follows:
…We are also satisfied that if the applicant’s visa remained cancelled she would be not able to make an onshore application for another visa by reason of s.48 of the Act and would be precluded from making any further applications for a visa for a period of three years by reason of the PIC 4013 in Schedule 4 to the Regulations…
With respect, there is nothing in [81] or indeed in Igbolekwu generally which indicates (expressly or implicitly) that the three year ban commences as and from the date of the Tribunal’s decision. The Tribunal’s decision is silent on that issue. It merely states that the applicant was the subject of the preclusion period and this weighed against cancellation. Further, the Tribunal’s decision in Igbolekwu was made within three years of the delegate’s decision.
Accordingly, Igbolekwu provides no support for the position taken by the applicants.
Relevantly, the Tribunal conducts a “review” of the delegate’s decision: the Act, s 349(1). That review is a full “merits review” whereby the Tribunal “stands in the shoes” of the Minister: Shi v Migration Agents Registration Authority [2008] HCA 31 (“Shi”). Any error in the delegate’s decision is “cured” by the Tribunal’s decision.
The powers of the Tribunal are found in s 349(2) of the Act, as follows:
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision; or
(e) if the applicant fails to appear--exercise a power under section 362B in relation to the dismissal or reinstatement of an application.
Both parties referred to the following statement in Kim v Minister for Immigration & Citizenship [2008] FCAFC 73 at [23] as supporting their respective propositions:
It is now settled law that an affirmation of a decision of the delegate by the Tribunal has the effect that the decision of the delegate is the original decision which continues to operate and is not substituted by the later decision of the Tribunal: see Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246 at 249-250.
The “settled law” referred to in Kim was first outlined in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 (“Lawlor”) wherein Brennan J states (at 175-176):
A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and this is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal’s order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise.
Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (to which Lawlor refers) is in relatively the same terms as s 349(2) of the Act. As such it is applicable here.
In Shi (which the applicants referred to), Justices Hayne and Heydon did not take issue with Brennan J’s statement in Lawlor. Rather, they stated (emphasis added):
[100] The AAT Act provides for the review of decisions by a body, the Tribunal, that is given all of the powers and discretions that are conferred on the original decision‑maker. As Brennan J rightly pointed out in an early decision of the Tribunal not all of the powers that the Tribunal may exercise draw upon the grant of powers and discretions to the primary decision‑maker:
A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal’s order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise.
But subject to that qualification, the Tribunal’s task is “to do over again” what the original decision-maker did.
Further, in Kim the Full Court remarked as follows:
ISSUE TWO – EXPIRY
32.In relation to the question whether the Tribunal can affirm a cancellation by the Minister of a visa which has expired, the appellant pointed to various references in the Act to the duration of visas which were to the general effect that the cessation of a visa means that it ceases to operate as a Ministerial permission to perform the acts authorised by the visa. In particular, the appellant referred to s 29 of the Act, which defines a visa as a permission to enter and remain in Australia. Section 77 provides that “a non-citizen holds a visa at all times during the visa period”, and ss 82(1) and 82(7) provide that visas cease to have effect when they are cancelled or when the visa period expires.
33.The appellant says that the Tribunal cannot make a fresh decision to affirm a visa after its expiry because, since the cancellation is a nullity, there is nothing to affirm. The respondents submit on the other hand that affirmation by the Tribunal of a purported cancellation will operate to leave the cancellation decision in force as from the date of the delegate’s decision, and that subsequent expiry of the visa after cancellation will not affect the fact that the visa has been cancelled. The respondents’ argument is consistent with the proposition that an affirmation is different from a new decision because the affirmed decision operates from its original date of decision, whereas a new decision by the Tribunal operates prospectively in the absence of the exercise of any power to back-date the decision.
34.In our view, in this case the affirmation of the cancellation decision by the Tribunal left in place the original decision of the delegate to cancel the visa so that, at the time of its expiry, the visa had been lawfully cancelled.
The above confirms that the affirmation of the cancellation decision leaves the delegate’s decision in place. It is not a “new decision”. The affirmation operates from the date of the delegate’s decision (and, as such, any consequences which arise operate from the date of the delegate’s decision).
On the basis of the High Court’s endorsement of what is stated in Lawlor and the remarks made by the Full Federal Court in Kim, it is evident that a decision to affirm the delegate’s decision maintains all of the legal consequences that arose from the primary decision. Here, the Tribunal affirmed the delegate’s decision. Accordingly, as per Lawlor and Kim, the Tribunal’s decision did not disturb the cancellation made by the delegate. It did not substitute the delegate’s decision for another decision. The delegate’s decision was always the operative decision.
The three year period in PIC 4013 is to be determined from the date of the delegate’s decision.
This construction is supported by the text of PIC 4013 itself. PIC 4013 states that the period is three years “after the cancellation of the visa”. As per s 138, the cancellation is taken to be made at the date and time of the delegate’s written statement. The fact that the Tribunal affirms that decision does not change the date when the visa was cancelled as per s 138.
This construction is also supported by what occurs in practice. If the applicant applies for a review at the Tribunal, their visa is not “reinstated”. The delegate’s decision is not “stayed”. The applicant’s visa remains cancelled from the date of the delegate’s decision unless, and until, it is set aside.
Mr Blades and Ms Ladhams both made submissions about arguably “absurd” consequences that might flow if the Court adopts each other’s respective interpretations of when the three year period commenced.
Those consequences (which, it is noted, both parties advanced and which were both meritorious) do not change the fact that the plain construction of PIC 4013 and the jurisprudence that the Court has cited above (which is binding on this Court) indicates that the period commences from the date of the delegate’s decision. Any resulting “absurdities” can only be addressed by extra-judicial authorities.
The Court is satisfied that the time from which PIC 4013 “runs” is from the date of the delegate’s decision. The Tribunal’s assessment at [72] is legislatively and jurisprudentially sound.
The applicants’ sole ground of review does not identify jurisdictional error and is, accordingly, dismissed.
Materiality
At the hearing, Ms Ladhams for the Minister raised the issue of materiality in the event that the Court accepted the applicants’ construction of PIC 4013 and found that jurisdictional error was established. The Court granted the parties leave to file further written submissions on the issue of materiality.
The applicants filed further written submissions on 21 April 2021. The Minister filed further written submissions on 5 May 2021.
In light of the Court’s conclusion in relation to the sole ground of review, it is unnecessary for the Court to consider the issue of materiality. The Court nonetheless thanks the parties for their submissions on this issue.
CONCLUSION
The sole ground of review fails to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 May 2021
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