XIYU v Minister for Immigration

[2017] FCCA 1565

FEDERAL CIRCUIT COURT OF AUSTRALIA

XIYU v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1565

Catchwords:
MIGRATION – Visa – cancellation of visa pursuant to s.116 of the Migration Act – breach of conditions of visa – injunction – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116 & 119(1)(a)

Applicant: XIAO XIYU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 228 of 2017

Judgment of: Judge Heffernan

Hearing date: 14 June 2017

Date of Last Submission: 14 June 2017

Delivered at: Adelaide

Delivered on: 14 June 2017

REPRESENTATION

Counsel for the Applicant: Dr S Churches

Solicitors for the Applicant: Connolly & Co.

Counsel for the Respondents: Mr P d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The Application filed on 14 June 2017 is dismissed.

2. There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 228 of 2017

XIAO XIYU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore reasons settled from transcript)

1. This is an application for an injunction restraining the respondent from deporting the applicant from Australia pending an application for judicial review of the decision of an officer of the Department of Immigration and Border Protection cancelling her visa. The applicant is a Chinese national and comes from southern China. Her visa was purportedly cancelled pursuant to s.116 of the Migration Act 1958 (Cth) (‘the Act’). Section 116 of the Act relevantly states as follows:

   “116 Power to cancel

   (1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   (a)the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists.

   …”

2. The applicant held, until it was cancelled yesterday, a visa subclass FA600 tourist visa granted on 5 January 2017.  It is a temporary visa that permitted her to travel to and from Australia over a period of 12 months staying for up to a maximum of three months at a time.  She visited Australia earlier this year and stayed for a period of about two months.  She arrived in Australia yesterday.  She completed an entry card that indicated that the length of her intended stay was 20 days, but it was noted that she had a return ticket to China booked for 5 September 2017. 

3. She was questioned by an immigration officer at Adelaide airport and they examined images on a mobile phone in her possession.  An interview was conducted with the applicant through an interpreter in Mandarin and English.  A copy of some handwritten notes of that interview was tendered in this hearing by the first respondent.  Those notes record the following:

   “Xiao Xi Yu       13/6/2017

   Record of Interview Notes:

   Source of funds

   I receive money as Quality Controller at her parents company that manufactures shoes.

   Will you return to work in China?

   Yes, I will return to the shoe factory.

   Have you worked elsewhere?

   I have been working at my parent’s factory for years. But I also I have sold flowers. I sold clothing

   Highest Education?

   Finished High School.

   How many times in Australia?

   Twice including this time.

   What did you do last trip?

   I stayed at my sister’s home looking after her son as my sister is single and operates several shops and came with my mother and I looked after my nephew.

   Did you go anywhere else – Tourist?

   No I only travelled in China not here.

   What will you do this time?

   I will spend most of my time at my sister’s home looking after my nephew.  I can’t speak English. My sister will take me out to meals.

   Sister’s Businesses?

   1)  Ugg shoe shop in a centre.

   2)  Courier company – sister is planning to start this year.

   Does your sister sell your family business shows?

   The shoe shop sells shoes but I am not sure where she gets the shoes from.

   How old is the nephew?

   Nearly 2 years old.

   Does your sister have a husband?

   The husband is in China but is divorced.

   I will ask you questions about selling vitamins.

   How’s does it work?  How do you do that?

   The first time I came I found overseas students were selling them so I became an Agent to sell them sometimes.

   They are Popular in China?

   Yes they are, Milk Powders also many people do this.

   Did you start this the last time you came?

   No I started when I came last time.

   How do you do it?

   I take photos of the products if someone is interested I purchase them from the Chemist then I send the goods to China.

   Do you use a Courier or 02Post?

   I use a Courier Company based in Australia “Cheng Cheng”.

   When you buy the product/pay for the courier – Do you make any money?

   I was helping friends and relatives no real customers.

   Do you put a commission on top?

   I charge a purchasing fee but not much.

   How much do you buy?

   I purchase 3-4 cans at any time because my business isn’t very good.  I deliver them to the Courier Company to be delivered.

   Is it close to you sister’s home?

   No there are several Chinese owned Courier companies in the city.  I personally purchase the product from the Chemist and deliver to the courier company.

   Where do you buy them from?

   Coles supermarket and from the biggest Chemist in Australia – Chemist Warehouse.

   Between Jan 2017 – March 2017 when you were in Australia is that when you started selling vitamins?

   I didn’t start till Feb 2017 but only occasionally – not my main thing.

   Do you sell it thru WiChat?

   Yes.

   Do you have an account?

   I purchase on people’s behalf.

   How does WiChat work?

   WiChat is a social media software appln – very popular in China.

   How do you get payment on WiChat?

   I only charge a small fee for travel – only a small charge for family and friends.

   How do they pay? Are they secure.

   By funds transfer on WiChat. My business is not that good so not worried about security.

   Do you give your Bank details?

   No – its not transferred into an account.  The transfer is carried out through WiChat and then funds go into my WiChat.  Many Chinese people do this.  They send Red envelopes.

   How often do you sell things on WiChat?

   Quite occasionally – I didn’t get much business.

   You said you met students in Australia who showed you how to do it.  Do you take business from them?

   It’s a popular way to purchase products from Australia.  People often buy things from students. I didn’t get much business and did not do it for long.

   How often do you post things?

   It was not regular.

   Once a day? Once a week? Once a month? How often?

   Maybe 1 person a week.

   Do you think about once a week?

   The fact is my business is not good and I didn’t concentrate on it but I hardly got any business from it.

   Was it mainly Vitamins or Formula?

   Health Products, maybe Formula.

   Do you sell Beauty Products?

   No.

BEO call to sister notes – Yi Qi Xiao – 1/10/1987

BEO called sister who stated she is here to visit her and stay a few months to help her look after her son 18 months old.

Last time she visited for Chinese New Year.

Sister stated she takes photos of Vitamins as Chinese people like Australian Vitamins and she may sell them to Friends or clients.

Last time she stated a stay of 20 days but stayed longer as her son needed looking after.”

1. As a result of that interview, a decision was made by an officer of the Department of Immigration and Border Protection to cancel her visa.  She was handed a Notification of Intention to Consider Cancellation of Visa, which she signed. 

2. The Notice of Intention to Consider Cancellation under s.116 correctly identifies the subclass of the visa as being FA-600. It indicated reliance upon s.116(1)(b) of the Act, namely that it appeared that the applicant had not complied with condition 8101 of the visa. Attachment (A) to the Notice, which was signed by the applicant, contained a detailed summary of the matters of which the delegate believed the grounds for cancellation appeared to exist.

3. Item 7 of the Decision Record detailed the evidence and findings about why the delegate was satisfied grounds for cancellation did exist.  Those grounds included a summary that the applicant travelled to Australia earlier this year and details the incoming passenger card completed by the applicant on 13 June 2017, the day of the interview, which indicated that she held a return ticket for 5 September 2017, notwithstanding the fact that her IPC stated she would only stay for 20 days.  It noted that the applicant admitted during her interview that during her visit to Australia between February and March 2017, she started an online business as a purchase agent which involved receiving orders for Australian products from Chinese Nationals.  It noted that she claimed her clients were friends and family and that she used a phone application called, WiChat, to advertise products available for sale in Australia.  She admitted that her clients placed orders by messaging her on WiChat and paying for the products using that application.  The applicant admitted that she purchased items from retailers such as Coles and Chemist Warehouse and sent approximately one order per week to China.  It noted that the applicant admitted that she charged her client the product price plus transport costs and a purchase fee, which in turn covered her travel costs.  The Decision noted that a Boarder Entry Officer had viewed her WiChat advertisement and noted there were a list of products available in Australia that were offered for sale to Chinese Nationals.  Those items apparently included baby formula and various types of health products.  It noted that numerous photos had been observed on the phone which related to business apparently conducted during her visit to Australia earlier this year.  The delegate was satisfied on considering that evidence that the export activity in which the applicant had been engaged in was work, an activity in Australia normally attracts remuneration, in other words ‘work’ as defined by the regulations.  It was on this basis that the delegate was satisfied that the applicant had not complied with condition 8201, which prevents the visa holder engaging in work in Australia.  The Decision Record included a summary of the reasons the visa holder gave as to why the visa should not be cancelled, as well as an assessment of the reasons given by the applicant.  The Delegate was not satisfied that hardship would be caused to the visa holder, their family members, or others, if the visa was cancelled.  The Delegate noted that there were no extenuating circumstances.  The reason for the cancellation of the visa was that the officer was satisfied that she had not complied with the condition of her visa, namely condition 8101 – that the holder must not engage in work in Australia. 

4. Today the applicant caused this application to be filed.  The orders sought are orders quashing the decision taken by the respondent through his officers or agents to detain the applicant with a view to removing her from Australia and the application proceeds on a single ground:

   “The Applicant has been detained on mistaken grounds by officers or agents of the Applicant (sic) and she should not be removed from Australia before she can seek judicial review of the decision to detain her preparatory to removing her.”

5. The interim relief sought is, as I have said, injunctive relief prohibiting the respondent from removing the applicant from Australia on 15 June 2017, which is tomorrow.  It is understood by the parties that it is the current intention of the Department to remove the applicant from Australia at 10.00am tomorrow morning.

6. The applicant relies on the affidavit of her solicitor Ms Connelly dated 14 June 2017.

7. That affidavit was understandably brief, given the limited nature of information available to the applicant’s solicitor, but it asserts that the solicitor had been advised that the applicant’s sister had told her that she had been apprehended by immigration officers at the airport because her entry form for a previous entry into Australia had expressed an intention to stay for 20 days, whereas she had in fact stayed for two and a half months, that they had then examined a mobile phone that she was carrying and found photographs of samples of merchandise on the phone, and the applicant believed they concluded that those photographs indicated that the applicant was working for her sister Ms Mandy Xiao, and was thus in breach of her visa.

8. The applicant’s solicitor arranged for a Mandarin-speaking solicitor in her employ to speak with the applicant by phone today.  She complained about the conditions under which she had been kept yesterday at the Adelaide Airport and the fact that she was to be removed from Australia today.  She also told the solicitor that there was a mix-up over the phone that she had been carrying and in fact that was a phone that her sister had purchased for her mother, being an iPhone 7, and that she was in fact returning it to Australia because her mother had decided that it was too expensive and it was to be returned to the sister.  In other words, whilst it was in her possession, it was not her phone that had been examined by the officers of the Department. 

9. I permitted the solicitor who spoke with the applicant in Mandarin to give some brief evidence.  In effect, his evidence was that he spoke to the applicant today for about 20 minutes.  The applicant spoke to him in Mandarin.  She is from the Hunan Province in China and he is from Beijing.  She told him that sometimes she could not understand what the interpreter had said, but she did not tell him what parts of the interview she could not understand or where the misapprehension lay. 

10. She also told him that she assumed because she could not understand the interpreter that the interpreter could not understand her. 

11. I permitted the applicant’s sister to give some brief evidence.  The effect of her evidence was that the applicant had stayed in Australia earlier this year for two and a half months at her request to look after her child, as she is very busy.  It was she, namely the sister, who paid for the applicant’s ticket to return to China on 5 September 2017.  It was cheaper to book a ticket that had a longer turnaround time and as she understood it, she could alter the return date on that ticket once her sister was in Australia. 

12. She stressed that her sister was not intending to stay in Australia for three months and that she required the applicant to assist her in looking after her child who has been sick recently.  She postulated that the applicant must have entered 20 days length of stay on the entry card for this visit because she had told her sister before she left China to fill in the entry card in the same way that she had earlier this year when her intended stay was in fact initially only for 20 days, and this conversation apparently occurred when her sister was still in China. 

13. Mr Churches for the applicant submits that they wish to impugn the reasonableness of the suspicions that led to the exercise of the power under s.116. He said that there is good reason to suspect that the interpretation was faulty and that the applicant had been denied procedural fairness as a result. He stressed that the record of interview was not a verbatim transcript and for that reason, it should be given limited weight. He queried whether even read on its face, the notes of the interview appeared to have some omissions and ellipses.

14. Even on the theory of the Department of Immigration and Border Protection as to the applicant’s reasons for travelling to Australia and her activities in the past, there is a real question, Mr Churches submitted, as to whether the activity which they identified would amount to remuneration which is normally understood to be wages for work performed for an employer. 

15. Mr d'Assumpcao submits that ‘work’ is defined as any activity that within Australia normally attracts remuneration. 

16. The decision-maker correctly identified the relevant condition that he claimed to have been breached and the correct meaning of ‘work’ under the Migration Regulations 1994 (Cth).  He submits that the decision-maker properly formed the state of satisfaction required and gave comprehensive reasons setting out the probative matters that led to that satisfaction.  On Mr d'Assumpcao’s submission, the record of interview demonstrates a fulsome understanding of the questions that were being asked and clearly shows answers that support the conclusion reached by the officer. 

17. It was a matter of significance, Mr d'Assumpcao said, that at no stage in the notes of the interview is it recorded that the applicant complained about not being able to understand the interpreter, although Mr Churches in his reply stressed that this was not a verbatim transcript and that one might not ordinarily expect such an answer to be included in the notes made as they were.  Mr d'Assumpcao submitted that evidence was adduced in the interview that was probative of the ultimate question or state of satisfaction the officer was required to achieve. 

18. The evidence was sufficient to satisfy the officer. The officer had complied, Mr d'Assumpcao said, with s.119(1)(a) of the Act. The fact that reasonable minds may differ did not establish a prima facie case that the decision was void for jurisdictional error.

19. I have not summarised all the submissions made by counsel and I have not summarised the references to the various cases they have referred me to.  I have taken into account all of the submissions that were made, all of the materials and I have reminded myself of the principles of some of the cases that I have been referred to. 

20. I am not satisfied that there is a prima facie case made out by the applicant. 

21. I am not satisfied that if the evidence remains as it is, even taken at its highest, that there is a probability that at the hearing of the judicial review application in this matter, the applicant will be able to establish that she is entitled to the relief sought. 

22. I am not satisfied on the material before me that she will be able to satisfy the Court that there was a problem with the interpretation to an extent that it impeded her communication with or understanding of the interview process with the immigration officers. A reading of the transcript suggests otherwise, and as submitted by the respondent, the efficacy of the translation is in part demonstrated by the consistency between the account recorded as to her reasons for visiting Australia and extending her stay earlier this year, and the explanation provided by her sister before me in evidence as to the same matters. I am satisfied that the officer who cancelled the visa properly addressed the relevant issue under s.116 and satisfied himself that the applicant had not complied with a condition of her visa.

23. I dismiss the application for an injunction.  I decline to make an order for costs in this matter.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 6 July 2017