Xu v Minister for Immigration
[2018] FCCA 58
•6 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| XU & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 58 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a skilled work visa – applicant not undertaking the work for which the visa was granted – applicant directed to other work – involvement of the applicant’s sponsor and migration agent – whether the visa was lawfully granted considered – whether the Tribunal should have taken evidence from the applicant’s former agent considered – whether the Tribunal gave adequate consideration to the applicant’s circumstances in considering its discretion to cancel the visa considered – no jurisdictional error. |
| Legislation: Evidence Act 1995 (Cth), ss.60, 136 Migration Act 1958 (Cth), ss.116, 361, 363, 425, 476 Migration Regulations 1994 (Cth) |
| Cases cited: Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 Briginshaw v Briginshaw (1938) 60 CLR 336 |
| First Applicant: | BINGQIANG XU |
| Second Applicant: | LIJUAN ZHANG |
| Third Applicant: | HUILIN XU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3313 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 7 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Counsel for the Respondents: | Mr N Swan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application as amended on 24 July 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3313 of 2016
| BINGQIANG XU |
First Applicant
| LIJUAN ZHANG |
Second Applicant
| HUILIN XU |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 11 November 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel Mr Bingqiang Xu’s (Mr Xu) subclass 457 skilled work visa. The Tribunal found that it had no jurisdiction with respect to the other applicants. That latter finding is not in dispute.
The following statement of background facts is derived from the submissions of the parties.
Mr Xu, a citizen of China, was granted the visa on 2 August 2012 on the basis of an approved nomination in the position of Management Consultant with his sponsor, Auyou Corporation Pty Ltd.[1] The second and third applicants are Mr Xu’s wife and child.
[1] Court Book (CB) 44
On 7 March 2016, the Minister’s Department (Department) received written notification from Mr Xu’s sponsor that Mr Xu had ceased employment effective on 3 March 2016.[2]
[2] CB 13
On 4 July 2016, the delegate sent Mr Xu a notice of intention to consider cancellation (NOICC) of Mr Xu’s visa.[3] On 26 July 2016, Mr Xu’s representative responded to the NOICC.[4]
[3] CB 15
[4] CB 21
On 1 August 2016, the delegate cancelled Mr Xu’s visa under s.116(1)(b) of the Migration Act 1958 (Cth) (Migration Act) on the basis that Mr Xu had not complied with condition 8107(3)(b) in Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations), which was a condition of his visa.[5]
[5] CB 32
On 5 August 2016, Mr Xu applied to the Tribunal for review of the delegate’s decision.[6] On 11 November 2016, following a hearing on 18 October 2016, the Tribunal affirmed the decision under review.[7]
[6] CB 40
[7] CB 227
Tribunal’s decision
The Tribunal noted that a visa may be cancelled under s.116(1)(b) of the Migration Act if it was satisfied that Mr Xu did not comply with a condition of his visa.[8] It identified that the relevant condition in this matter was 8107 as set out in an annexure to its decision.[9] The Tribunal noted that since Mr Xu’s visa was granted, condition 8107 had been subject to legislative changes that increased the period that a visa holder could cease to be employed from 28 days to 90 days. It also noted the new condition 8107(3)(aa), which required visa holders to commence work in the nominated occupation within 90 days of arriving in Australia.[10]
[8] CB 230 at [13]
[9] CB 230 at [14]
[10] CB 230 at [16]
Based on Mr Xu’s oral evidence at the hearing, the Tribunal found that he had not been employed in Australia as a Management Consultant, but rather as a wall and floor tiler. The Tribunal was of the view that the employer-employee relationship between Mr Xu and his sponsor ended shortly after he arrived in Australia when, inconsistently with the employment contract, he worked for other companies as a tiler and was paid in cash by them. The Tribunal considered that, on one view, Mr Xu had never worked for his sponsor.[11]
[11] CB 231 at [20]-[21]
Accordingly, the Tribunal found that although approved to work as a Management Consultant, Mr Xu had worked as a tiler, in breach of condition 8107(3)(a)(i). It found that he breached condition 8107(3)(a)(ii) as he had worked for other employers. It also found that he breached condition 8107(3)(aa) by not starting work for the sponsor in the nominated occupation within 90 days of arrival in Australia. Furthermore, the Tribunal found that the sponsor had repudiated the employment contract and that Mr Xu had accepted the repudiation by his conduct within days of his arrival, thereby breaching condition 8107(3)(b) in that he ceased employment with his sponsor for more than 90 days.[12]
[12] CB 232 at [22]
As the ground for cancellation did not require mandatory cancellation under s.116(3) of the Migration Act, the Tribunal proceeded to consider whether the power to cancel should be exercised.[13] It noted that there were no matters specified in the Migration Act or Regulations that were required to be considered in relation to the exercise of the discretion to cancel the visa.[14] The Tribunal noted that in considering the exercise of its discretion, it had regard to the relevant circumstances including (but not limited to) those identified in PAM3 “General visa cancellation powers”.
[13] CB 232 at [23]
[14] CB 232 at [24]
In considering the relevant circumstances, the Tribunal made the following findings:
a)the purpose of Mr Xu’s travel to and stay in Australia to work for the sponsor (or a related company) as a Management Consultant came to an end more than four years prior. The Tribunal was of the view that this weighed strongly in favour of cancelling the visa;[15]
b)Mr Xu’s breach of multiple visa conditions over an extended period of time and his failure to regularise his visa status (despite advice from the Department and his migration agent) demonstrated a disregard for Australian immigration law and weighed strongly in favour of cancellation;[16]
c)the Tribunal acknowledged that there may be some adjustments for the family to reintegrate to life in China, but found that the hardship would not amount to a level such that it would weigh in favour of not cancelling his visa;[17]
d)the Tribunal noted the circumstances in which the ground for cancellation arose, including threats made by the sponsor that it would cancel Mr Xu’s visa if he did not continue to work as directed, that the director of the sponsor held himself out to be a lawyer when he was not, that Mr Xu and his wife were afraid of and dominated by the sponsor, and that they only recently discovered that they could seek alternative employers and advice. However, the Tribunal found that Mr Xu’s failure to explore and pursue appropriate advice to assist him with his situation weighed in favour of cancellation. It was of the view that Mr Xu would have had a sufficient level of education and professional experience to be aware that professional advice was necessary;[18]
e)the Tribunal found that Mr Xu had been disrespectful of Australian immigration law and that his conduct suggested that he was complicit in, or perhaps cooperated with the sponsor in, breaching immigration law. He had failed to report the sponsor to the Department and also failed to provide evidence to the Tribunal that he had regularised his visa status. The Tribunal gave significant weight to this;[19]
f)the Tribunal noted that Mr Xu’s wife’s nomination application with a different sponsor was still pending and accepted that she and their child would experience hardship if they left Australia. However, it found that the hardship would not be significant;[20]
g)the Tribunal accepted that if the delegate’s decision were affirmed, it would preclude the applicants from applying for certain visas onshore and that Mr Xu’s wife would be unable to apply for a 457 visa. It also accepted that the applicants would be adversely affected by Public Interest Criterion 4014 and may not be able to return to Australia for three years, as they had not applied for bridging visas within 28 days after the cancellation of their 457 visas. However, it noted that the applicants’ failure to apply for bridging visas was despite them being advised and represented by a migration agent;[21]
h)the Tribunal noted that there was nothing to suggest that any international obligations would be breached.[22]
[15] CB 232 at [25]-[26]
[16] CB 233 at [27]-[29]
[17] CB 233 at [30]-[32]
[18] CB 234 at [33]-[36]
[19] CB 235 at [37]-[40]
[20] CB 236 at [41]-[42]
[21] CB 236 at [43]-[44]
[22] CB 236 at [45]
Having considered the circumstances individually and cumulatively, the Tribunal concluded that the applicant’s visa should be cancelled. Accordingly, it affirmed the decision under review.[23]
[23] CB 237 at [46]-[48]
The present proceedings
These proceedings began with a show cause application filed on 25 November 2016. Mr Xu subsequently relied upon an amended application filed on 24 July 2017. There were three grounds in that application:
Ground 1
1. The Tribunal denied the Applicant procedural fairness in respect of determinative issue of the exercise of its discretion and/or constructively failed to exercise its jurisdiction.
Particulars
1.1 Financial hardship was a relevant consideration. In considering financial aspect of the discretion the Tribunal has presumed that with the Applicant's MBA he would find meaningful employment in China. The Tribunal in exercise of the discretion presumed that the Applicant would not have financial difficulties and/or failed to take this consideration into account and/or conflated with the First Applicant having postgraduate qualifications and both Applicants having Australian work experience. The Tribunal failed to provide adequate opportunity to the Applicant to explain the financial circumstances and/or other financial hardship when all the monies have been paid to the Sponsor.
1.2 The Tribunal failed to provide adequate opportunity to the Applicants to engage with the issues/explain the issue under review in respect of the discretion.
1.3 The Applicants paid back monies to the sponsor. There was no proper consideration in the exercise of its discretion when considering financial aspects of the hardship.
1.4 The Tribunal committed jurisdictional error.
Ground 2
2. The Tribunal committed jurisdictional error when it denied the Applicants procedural fairness when it found that the Applicant would have sufficient level of education and training that there would be no hardship (AAT at [32]) returning to China being determinative issue in respect of which there was no meaningful engagement by the Tribunal in the conduct of the review or constructively failed to exercise its jurisdiction.
Particulars
2.1 The Tribunal denied the Applicant procedural fairness on the question of the Applicants’ qualification and the Applicants’ ability to sustain in China and failed to give meaningful opportunity to present the Applicants' case.
2.3 The Tribunal denied the Applicant procedural fairness.
2.4 The Tribunal thereby committed jurisdictional error.
Ground 3
3. The Tribunal committed jurisdictional error when it asked failed to ask the correct question and ignored relevant considerations and/or took into account irrelevant considerations/constructively failed to exercise jurisdiction in its consideration of the exercise of the discretion by the delegate.
Particulars
3.1 Erred in failing to ask the correct questions concerning the sponsoring employer's role and the Tribunal committed jurisdictional error.
3.2 Taking into account irrelevant considerations.
3.3 The fact that the Applicant had no previously made visa applications; the Tribunal was failing to ask the correct questions and/or taking into account irrelevant consideration.
3.4 In failing to ask the correct questions concerning the sponsor's health circumstances and ignoring the current financial.
3.5 The Tribunal committed jurisdictional error.
(errors in original)
The third ground was not pressed.
I conducted a show cause hearing on the application as amended on 25 July 2017. In addition to the court book filed on 5 May 2017, I received as evidence the affidavit of Mr Xu made on 24 May 2017, to which is annexed a transcript of the Tribunal hearing conducted on 18 October 2016.
At the show cause hearing, I was unpersuaded that the grounds advanced raised an arguable case of jurisdictional error. In that regard, I accepted the submissions advanced on behalf of the Minister in relation to Grounds 1 and 2.
Grounds 1 and 2
Ground 1 contends that the Tribunal denied Mr Xu procedural fairness by failing to provide an adequate opportunity for him to explain:
a)the circumstances that led him not to report to the Department that he was in different employment; and
b)all of the circumstances of the former migration agent threatening Mr Xu.[24] Ground 2 also contends that the Tribunal denied Mr Xu procedural fairness by denying him the opportunity to present his case without fear, in circumstances where the Tribunal was aware that the presence of non-parties at the hearing was intimidating to Mr Xu.
[24] The reference to the “former migration agent” is to the sponsor, who was both the sponsor and the applicant’s migration agent for the purpose of the 457 visa application
The Tribunal has a statutory obligation under s.425 of the Migration Act to ensure that the invitation to a hearing is “real and meaningful”.[25] This would include allowing Mr Xu adequate opportunity to give oral evidence about issues central to the case and respond to any concerns raised by the Tribunal. If the Tribunal had prevented Mr Xu from doing so, it is likely to have fallen into jurisdictional error. However, Mr Xu has failed to establish that he was denied a real and meaningful opportunity to participate in the Tribunal hearing in the sense of being unable to give evidence, present arguments, and answer questions for the following reasons:
a)the affidavit filed by Mr Xu on 25 May 2017 annexing a transcript of the Tribunal hearing reveals that at the commencement of the hearing, the Tribunal noted that five or six law students studying immigration law wished to attend, and asked Mr Xu if he felt constrained in any way to give evidence if members of the public were allowed to be present.[26] Mr Xu responded “no”, and when further questioned by the Tribunal as to whether he believed he could give open and frank evidence, Mr Xu responded “yes”;[27]
b)Mr Xu was represented by a registered migration agent[28] at the Tribunal hearing, who would have been able to assist Mr Xu, and had sufficient time to give evidence and to present arguments;[29]
c)the transcript of the Tribunal hearing does not support a finding that Mr Xu was unable to meaningfully participate in the hearing. He is recorded as speaking and answering questions competently, comprehensively, and responsively;
d)the Tribunal made it clear to Mr Xu that the hearing was his opportunity to put evidence before the Tribunal regarding why it should not cancel the visa.[30] Before the close of the hearing, the Tribunal asked Mr Xu if there was anything else he wished to say.[31] Mr Xu’s response was to request an opportunity to remain in Australia;
e)at no point during the hearing did Mr Xu or his migration agent make any suggestion that Mr Xu was unable to give evidence on the basis of his claimed fear or intimidation; and
f)with the exception of the tangential issue of Mr Xu’s initial concern for the confidentiality of his case, the post hearing submissions emailed on 19 October 2016 by Mr Xu’s migration agent made no suggestion that Mr Xu was unable to meaningfully participate in the hearing.[32]
[25] Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [16]. See also SZJBD v Minister for Immigration (2009) 179 FCR 109; and M175 of 2002 v Minister for Immigration [2007] FCA 1212
[26] transcript, pages 2-3
[27] transcript, page 3, lines 40-45
[28] not Kevin Xu
[29] CB 93
[30] transcript, page 17, line 32
[31] transcript, page 24, line 15
[32] CB 154
Further, it cannot be said that Mr Xu was not on notice of the issues in the review. The delegate and the Tribunal addressed largely the same issues,[33] both finding that Mr Xu was in breach of condition 8107(3)(b) in that he had ceased employment with his sponsor for more than 90 days, and addressed the same factors in deciding whether to cancel the visa.
[33] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [37] and [47]
The Tribunal made an additional finding that Mr Xu was in breach of condition 8107(3)(a)(ii) by working for other employers. This condition was raised by the delegate, but ultimately not applied as a reason for cancellation as there was insufficient evidence.[34] However, the transcript reveals that the Tribunal put Mr Xu on notice that compliance with both condition 8107(3)(a)(i) and (ii) remained live issues. The transcript reveals that the Tribunal discussed with Mr Xu condition 8107 and the characteristics of a direct employer-employee relationship, and that Mr Xu gave oral evidence about the work he undertook at different employers’ worksites and the manner in which he was paid.[35] Mr Xu admitted that, in breach of condition 8107(3)(a)(i), he had never worked in Australia in his nominated occupation and that, in breach of condition 8107(3)(a)(ii), he had worked for multiple employers other than his sponsor.[36] The Tribunal also discussed with Mr Xu that it appeared that he had also breached condition 8107(3)(aa) in that he had not started work with his sponsor within 90 days of arrival.[37] Thus, the delegate’s decision and the Tribunal’s questioning at the hearing clearly put Mr Xu on notice of the issues for consideration before the Tribunal.
[34] CB 34
[35] transcript, page 11
[36] transcript, pages 8, 10
[37] transcript, page 14
Ground 2 as reformulated in the amended application contends that Mr Xu was denied procedural fairness when the Tribunal found that he would have a sufficient level of education to deal with his return to China. As stated at [12(c)] above, the Tribunal acknowledged that the family would face adjustments to reintegrate to life in China. However, it took the view that the hardship encountered would not be significant, given the qualifications and experience Mr Xu and his wife had gained in Australia and the possibility that he could resume his occupation of Management Consultant. It did not consider that any hardship would be such that it would weigh in favour of not cancelling his visa.[38] This was a permissible exercise of the Tribunal’s evaluative function and no jurisdictional error is established.
[38] CB 233 at [32]
Nevertheless, I considered that there were issues arising from facts asserted by Mr Xu before the Tribunal which merited a final hearing. In particular, he asserted that:
a)he had retained Kevin Xu, who was owner of the sponsor, as his migration adviser. Throughout the negotiations before coming to Australia, Kevin Xu represented that he was a lawyer;
b)he had good reason to rely on Kevin Xu. Kevin Xu represented that he was a migration agent and lawyer; it was reasonable for him to rely on Kevin Xu to provide the services that a migration agent would normally provide to attend to all matters and advise the applicants on settling in Australia;
c)his visa arrangement was made by Kevin Xu, the director of the sponsor. Kevin Xu did not arrange for Mr Xu to work for the sponsor.[39] The evidence given by Mr Xu is that he paid the monies to the sponsor’s bank account;
[39] transcript, page 6, lines 35-40. The sponsor did not arrange Mr Xu to work as management consultant for the Applicant (transcript, page 9, lines 10-11)
d)Mr Xu therefore left matters in the hands of Kevin Xu to arrange his affairs and transition him and his family to come to Australia. Mr Xu claimed that he was brought in by Kevin Xu to work as a Management Consultant. Kevin Xu was the main actor involved in bringing Mr Xu to Australia;
e)Mr Xu had reason to believe that Kevin Xu had represented him and secured the visa to come and live in Australia;
f)the relationship that brought Mr Xu to Australia seems to have changed after he arrived in Australia. The sponsor put Mr Xu at risk by adopting a different arrangement to that agreed between the parties in China;
g)upon Mr Xu arriving in Australia, instead of employing him as a Management Consultant and paying him upon arrival, the sponsor directed Mr Xu to a different task. Mr Xu was never paid by the sponsor;[40]
h)Kevin Xu arranged for Mr Xu to work not for the sponsor but in tiling and bank the money earned in the sponsor’s account[41] and others paid in cash;[42]
i)Mr Xu was put in a situation where duress was applied by Kevin Xu,[43] including threats. Kevin Xu also represented that he was a lawyer when he was not;[44]
j)Mr Xu did not previously know that he had to work for the sponsor only. The sponsor was also the migration adviser. Mr Xu alleges that Kevin Xu, who is the owner of the sponsor, threatened him. Mr Xu could not in the context of the situation be expected to provide evidence from the sponsor;
k)the decision that the visa be cancelled turned on Mr Xu not working for the sponsoring employer and not working in the field of management. Mr Xu was brought to Australia by Kevin Xu who also on the evidence was the sponsor’s director and shareholder;
l)Mr Xu submits that the evidence clearly shows abuse of him by Kevin Xu. From the outset, Kevin Xu employed Mr Xu in a manner to advance Kevin Xu’s interests. Mr Xu did not previously know that he had to work for the sponsor only;
m)Mr Xu submits that, so far as he was concerned, Kevin Xu was the person who was involved in representing him and his family with the Department. He had never previously been to Australia and was not familiar with visa requirements. Mr Xu had reason to believe that all the requirements and formalities had been attended to. It was otherwise the duty of the Minister to ensure that before the issue of the relevant visa that the requirements have been satisfied; and
n)the role that Kevin Xu played and the documents that Mr Xu submitted could only be known to the Department. The material in the court book does not necessarily help Mr Xu and the Court knows what material was submitted by him to secure the visa.
[40] transcript, page 6, lines 41-42
[41] transcript, page 11, lines 1-4
[42] transcript, page 12, line 8
[43] transcript, page 12 generally
[44] transcript, pages 12-13
Having regard to those assertions, I made the following show cause order on 25 July 2017:
Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is ordered to show cause why relief should not be granted in relation to the following issues:
(a) whether the first applicant’s visa had been lawfully granted;
(b) whether the Tribunal should have sought evidence from the applicant’s sponsor in relation to the sponsorship arrangement;
(c) whether the Tribunal gave real and meaningful consideration to the circumstances of the applicant and the reasons why he was brought to Australia.
The matter was heard on a final basis on 7 December 2017. Both the applicant and the Minister filed written submissions for the purposes of that hearing and made oral submissions through their counsel.
I have concluded that the Tribunal decision is not affected by any jurisdictional error. The circumstances presented to the Tribunal were certainly unusual but, in terms of the case advanced by Mr Xu, he represented that he had honestly and sincerely applied for the visa, based on what he had been told in relation to the employment opportunity in Australia. The circumstances proved different subsequent to his arrival in this country and raised questions about the conduct of Kevin Xu both as the sponsor and Mr Xu’s former migration agent. It was, however, not for the Tribunal to conduct a general inquiry into the circumstances. The Tribunal’s function was to review the decision of the delegate. The Tribunal found that Mr Xu had been a willing participant in a scheme to subvert Australian migration law, rather than an innocent victim of that scheme.
I have come to the conclusion that the available material could not support a finding that Mr Xu’s visa application was fraudulent or otherwise invalid. Neither am I satisfied that the Tribunal needed to hear from Kevin Xu or that the Tribunal gave inadequate consideration to Mr Xu’s circumstances.
In that regard, I accept the Minister’s submissions in relation to the show cause order I made.
First issue – whether the applicant’s visa had been lawfully granted
At the hearing held on 25 July 2017, I raised an issue as to whether Mr Xu’s visa had, in the first place, been lawfully granted. I wondered whether there might have been a fraud on Mr Xu and the Department in or during the visa application process, with the consequence that Mr Xu’s visa application was not valid (because of the purported fraud), and thus the visa was not validly granted to Mr Xu.
It is apparent from Mr Xu’s submissions that he has decided not to make a case of fraud or otherwise take up this issue. Indeed, at [18(a)] of his submissions, Mr Xu states that he “had no reason to believe otherwise [ie. that his visa was not lawfully granted]” and that he is “unable to make submissions” on this issue. It is not surprising that Mr Xu has taken this approach, especially given the significant evidential and ethical burden in alleging and proving fraud, and the absence of evidence to clearly allege and show fraud on Mr Xu.
The validity of a visa application is an objective matter for the Court to determine.[45] Mr Xu has the onus of pleading and proving, by evidence, that the application was invalid. That onus does not change because the matter in issue is a jurisdictional fact.[46]
[45] Minister for Immigration v Kim (2014) 221 FCR 523 at [25]-[29]; Singh v Minister for Immigration (2016) 247 FCR 554 at [35]
[46] Maroun v Minister for Immigration (2009) 112 ALD 424 at [15]
Allegations of fraud must be clearly pleaded and established by evidence. In SZFDE v Minister for Immigration,[47] the High Court cited, with approval, a judgment of Denning LJ in which his Lordship stated that “the Court is careful not to find fraud unless it is distinctly pleaded and proved” (emphasis added). The New South Wales Court of Appeal has also recently emphasised the need for fraud to be properly pleaded and particularised, and found that a trial judge is not entitled to decide a case on the basis of fraudulent conduct that has not been properly alleged and put.[48] Further, Mr Xu must prove, by evidence, any fraud he does plead, in accordance with the principles in Briginshaw v Briginshaw[49] and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd. [50] See also Minister for Immigration v SZLIX. [51] As Leeming JA said in Nadinic,[52] “a finding of fraud is a serious matter. It is not lightly to be made”.
[47] (2007) 232 CLR 189 at [15]
[48] see Nadinic v Drinkwater [2017] NSWCA 114 per Leeming JA at [45]-[46]; [110]-[118]; Sackville AJA at [155]
[49] (1938) 60 CLR 336
[50] (1992) 110 ALR 449
[51] (2008) 245 ALR 501 at [33]
[52] at [108]
As noted above, Mr Xu has chosen not to take up the issue of whether the visa was not lawfully granted to him, because of a fraud on him and the Department. Unsurprisingly, therefore, Mr Xu has not pleaded or alleged fraud (in his amended application or in his submissions), let alone particularised essential matters such as what the allegedly fraudulent conduct was, when it occurred and who perpetrated it, whether it amounted to a fraud on Mr Xu, and what (if any) statutory provisions in the Migration Act were stultified by it.[53] Further, Mr Xu has adduced no evidence to make good any suggestion of fraud.
[53] see eg. SZFDE at [51] and [53]; SZLIX at [33]; Singh at [51]-[52]
In these circumstances, it is not open to this Court to find that the visa was never validly granted to Mr Xu because of any fraud upon him. Further, Mr Xu suggests no basis other than fraud to conclude that the visa was not validly granted to him. No jurisdictional error is shown by Mr Xu in relation to the first issue.
Finally, a question remains as to whether this Court would, in any event, have jurisdiction to consider whether the visa was validly granted to Mr Xu. This Court’s jurisdiction is conferred by s.476(1) of the Migration Act, which relevantly provides that the Court “has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”. The “migration decision” identified in the amended application is the Tribunal’s decision of 11 November 2016, rather than the 2012 decision to grant the visa. The Court’s jurisdiction is thus “in relation to” the Tribunal’s decision. In Minister for Immigration v SZSSJ[54], the High Court observed that the words “in relation to” are “not words of expansion”. However, given that Mr Xu has not taken up the issue of whether the visa was lawfully granted, the issue of jurisdiction does not arise.
Second issue – whether the Tribunal should have sought evidence from Kevin Xu in relation to the sponsorship arrangement
[54] (2016) 333 ALR 653 at [60]
For the following reasons, the Tribunal was under no legal obligation to call evidence from Mr Xu’s sponsor (ie. through its director, Kevin Xu) and no jurisdictional error occurred by reason of the Tribunal not having done so.
First, a migration agent represented Mr Xu throughout the Tribunal review process. In response to the Tribunal’s invitation to the hearing, the migration agent indicated that he did not request the Tribunal to take evidence from any witnesses.[55] Accordingly, the obligation on the Tribunal to “have regard to” Mr Xu’s request to obtain evidence from a witness never arose (although, importantly, the Tribunal is not under an obligation to comply with such a request).[56] Also, there is no evidence that Mr Xu, or his migration agent, made any request to the Tribunal that it take evidence from any witnesses, including Kevin Xu.
[55] CB 72
[56] see s.361(1)-(3)
Secondly, in his submissions, Mr Xu identifies no legal basis on which the Tribunal was obliged to call evidence from Kevin Xu, especially in circumstances where no request to call Kevin Xu was made. The Tribunal did have the power to take evidence from Kevin Xu.[57] However, that provision confers a power on the Tribunal, not an obligation to do so (nor an obligation to consider whether to exercise that power).[58]
[57] see s.363(1)(a) and (3)(a) of the Migration Act
[58] see eg. Minister for Immigration v SGLB (2004) 207 ALR 12 at [42]-[43] per Gummow and Hayne JJ; Gleeson CJ agreeing at [1]; Minister for Immigration v SZGUR (2011) 241 CLR 594 at [20]-[23] per French CJ and Kiefel J; at [75]-[77] per Gummow J
Thirdly, it is not, in any event, apparent why the Tribunal should have called evidence from Kevin Xu. Mr Xu did not claim to the Tribunal that he was the victim of a fraudulent visa application that had been prepared by Kevin Xu. Mr Xu conceded to the Tribunal, among other things, that he did not work for the sponsor in Australia, that he worked as a tiler rather than his sponsored role of Management Consultant, and that he was in breach of numerous visa conditions.[59] Further, the Tribunal was concerned that Mr Xu might have been complicit in, or even wilfully co-operative with, the sponsor in the breaching of his visa conditions so as to obtain temporary residence in Australia.[60] Also, the Tribunal was concerned that, even assuming the correctness of Mr Xu’s evidence about his employment relationship with Kevin Xu and the sponsor, Mr Xu’s breaches of his visa conditions were not beyond his control, given his repeated failure to seek assistance or advice about his situation, or to take steps to rectify his non-employment as a Management Consultant (eg. by seeking another sponsor).[61] In these circumstances, it is not readily apparent how the evidence of Kevin Xu would have materially assisted Mr Xu before the Tribunal.
[59] CB 231-232 [18]-[22]
[60] CB 235 at [39]
[61] CB 235 at [36]
No jurisdictional error is shown by Mr Xu in relation to the second issue.
Third issue – whether the Tribunal gave real and meaningful consideration to the circumstances of Mr Xu and why he was brought to Australia
Fairly read, the Tribunal’s reasons show that, in reaching its decision, it did give consideration to why Mr Xu “was brought to Australia” and also his circumstances in Australia.
Contrary to [18(c)] of Mr Xu’s submissions, the Tribunal did give “meaningful consideration” to “why the Applicant was brought [to] Australia”. In its reasons, the Tribunal discussed Mr Xu’s evidence that he had previously worked as a Management Consultant in China,[62] that he had been employed by the sponsor as a Management Consultant,[63] and that he was granted the visa on the basis of an approved nomination as a Management Consultant employed by the sponsor.[64] Further, at [25]-[26],[65] the Tribunal expressly considered “the purpose of the visa holder’s travel and stay in Australia”. It found, at [26],[66] that the purpose of Mr Xu’s travel to Australia was to work with the sponsor as a Management Consultant, but that this ended shortly after he arrived in Australia in 2012, owing to the cessation of Mr Xu’s employment.
[62] CB 235 at [38]
[63] CB 229 at [10]
[64] CB 228 at [7]
[65] CB 232-233
[66] CB 233
The Tribunal also paid close regard to Mr Xu’s circumstances. It discussed, in detail, the nature of Mr Xu’s sponsored employment with the sponsor (ie. as a Management Consultant), the circumstances in which that employment ceased after his arrival in Australia, the employment that Mr Xu subsequently undertook, and the circumstances in which the breaches of Mr Xu’s visa conditions occurred.[67] It also discussed other matters potentially arising from visa cancellation and which were personal to Mr Xu, such as hardship he and his family may suffer,[68] and the legal consequences flowing from cancellation, such as the effect of the s.48 bar and Public Interest Criterion 4014.[69]
[67] see eg. CB 231-232 at [18]-[22]; 233 at [26]; 234-235 at [33]-[39]
[68] CB 233 at [30]-[32]; 236 at [40]-[41]
[69] CB 236 at [43]-[44]
In its discussion and assessment of Mr Xu’s employment in Australia, the Tribunal observed that, despite not commencing his sponsored employment with the sponsor (ie. as a Management Consultant) and instead being told to commence work in an entirely different role (ie. as a tiler), he failed to seek any assistance or advice about his situation from migration agents, lawyers, the Department and/or the Fair Work Ombudsman. The Tribunal also noted that, once it was apparent that Mr Xu could not work as a Management Consultant with the sponsor, he failed to seek employment as a Management Consultant with a different sponsor[70] and that when he finally did seek, after three years, advice about his circumstances from a lawyer, he then ignored that advice. [71] It is thus apparent that the Tribunal did not consider that Mr Xu’s ongoing breach of his visa conditions were as a result of matters beyond his control. The Tribunal gave each of these matters significant weight in favour of cancellation of the visa.[72]
[70] CB 235 at [36]
[71] CB 235 at [39]
[72] CB 235 at [36]; [40]
Further, the Tribunal also turned its mind to whether Mr Xu had been the victim of some form of sham employment arrangement with the sponsor. However, the Tribunal considered that:[73]
[Mr Xu’s] conduct suggests…that he may have been complicit in, or perhaps have even wilfully co-operated with, Auyou in breaching immigration law and thereby facilitating his temporary residence in Australia for 4 years.
[73] CB 235 [39]
Finally, insofar as [18(c)] of Mr Xu’s submissions alleges that the Tribunal failed to consider that visa cancellation might have “other far reaching consequences to the Applicants”, Mr Xu does not identify any such adverse consequences that he advanced to the Tribunal but which it failed to deal with. The Tribunal is not required to deal with a claim not put.[74]
[74] eg. NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 at [58], [62]
No jurisdictional error is shown by Mr Xu in relation to the third issue.
Conclusion
I conclude that Mr Xu has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 6 February 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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