Xue v Minister for Immigration
[2018] FCCA 151
•9 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| XUE & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 151 |
| Catchwords: MIGRATION – Cancellation of partner visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal’s decision was affected by a reasonable apprehension of bias – whether the Tribunal’s decision was based upon errors of law – whether the Tribunal erred by acting on a premise which did not exist – whether the Tribunal failed to comply with s.359A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.101, 103, 107, 109(1), 140, 198, 200, 338, 348, 352, 359A, 474,pt.5 of div.2 Migration Regulations 1994 (Cth), cl.100.321 of sch.2, criteria 4004 of sch.4 |
| Cases cited: ALA15 v Minister for Immigration & Border Protection [2016] FCAFC 30 Bezer v Bassan [2017] NSWCA 333 |
| First Applicant: | XIONG ZHONG XUE |
| Second Applicant: | JUN KAI XUE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 393 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 5 December 2017 |
| Date of Last Submission: | 14 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 9 February 2018 |
REPRESENTATION
| Solicitors for the Applicants: | Mr R Turner, Turner Coulson Immigration Lawyers |
| Solicitors for the Respondents: | Ms M Donald, Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 393 of 2017
| XIONG ZHONG XUE |
First Applicant
| JUN KAI XUE |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first applicant (applicant) applied for a Partner visa on 1 March 2011. The second applicant was included in the application as a dependent of the applicant. The application failed to disclose a number of matters including the fact that the applicant had previously been to Australia under an assumed name and had unsuccessfully applied for a visa under that name.
The visa application was initially rejected, but after successfully seeking review by the Migration Review Tribunal[1] (MRT), the applicant and his son were granted visas on 29 January 2014.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
On 16 September 2016, a delegate of the Minister for Immigration issued the applicant with a notice of intention to cancel his visa on the basis of a number of matters including his failure to disclose certain matters in his visa application. The applicant responded to that notice on 7 October 2016 and 31 October 2016. On 8 November 2016, the applicant’s visa was cancelled by a delegate of the Minister pursuant to s.109(1) of the Migration Act 1958 (Cth) (Act). The second applicant’s visa was automatically cancelled by operation of s.140 of the Act.
Both applicants applied to the Administrative Appeals Tribunal (Tribunal) for review of the decision of the delegate to cancel the applicant’s visa. On 24 January 2017, the Tribunal affirmed the delegate’s decision.
The applicants now seek judicial review of the Tribunal’s decision. They argue that the Tribunal’s decision was affected by four jurisdictional errors: apprehension of bias, errors of law, a premise which did not exist and breaches of s.359A of the Act. For the reasons that follow, none of those errors has been established and the application will be dismissed.
Factual background
Although the summary of facts set out at [1]-[4] above is sufficient to understand the legal issues that arise, it is necessary to set out the facts in a little more detail in order to understand the resolution of those issues. In particular, the ground of bias requires a deeper understanding of the factual context in which the Tribunal was conducting its review of the delegate’s decision. The following statement of the factual background is adopted from the written submissions of the Minister which the applicant accepted as accurate.
The applicant is a citizen of the People’s Republic of China. On 1 March 2011, he applied for a combined Subclass 309/100 partner visa on the basis of his relationship with Ms Li Na Yin. The second applicant is the applicant’s son and applied for the visa on the basis that he was a member of the applicant’s family unit.
On 31 August 2011, a delegate of the Minister refused the grant of the visa and the applicants applied to the MRT for review. On 11 September 2013, the MRT remitted the decision to the delegate. On 29 January 2014, a delegate granted each of the applicants Class BC subclass 100 visas.
On 16 September 2016, a delegate of the Minister sent the applicant a Notice of Intention to Consider Cancellation under s.107 of the Act (s.107 Notice) on the basis of an apparent non-compliance with ss.101(b) and 103 of the Act. Relevantly, those provisions required that the applicant complete his visa application form so that no incorrect answers were given or provided (s.101(b)), “and that he not give, present, produce or provide, to an officer, an authorised system, the Minister, or the Tribunal performing a function or purpose under the Act, a bogus document or cause such a document to be given” (s.103).
The first respondent’s written submissions at [5] provide a brief summary of what the s.107 Notice stated:
(a) As part of his partner visa application, the applicant provided incorrect responses in Form 47SP, being that he did not declare: the previous visa refusals for himself or the second applicant; that he had previously held a bridging E visa; his previous travel to Australia; that he had been known by another name; that he had been removed from Australia, excluded from Australia, and had debts to the Australian government; and that he had previously resided in Australia.
(b) The applicants signed a declaration on Form 47SP declaring that the information they had supplied was complete, correct and up-to-date in every detail and if they gave false or misleading information, their application might be refused, or any visa granted might be cancelled:
(c) On 31 August 2011, the application was refused and on 11 September 2013, the Tribunal remitted the decision under review. Following remittal, the applicant provided the Minister’s department (Department) with a notarised police certificate in the name of Xiongzhong Xue, born 16 August 1973.
(d) On 29 January 2014, based on this information and meeting all other criteria, the applicants were granted subclass 100 partner visas.
(e) Following the grant of the visas, information was made available by NSW Roads and Maritimes Services (RMS), indicating that the applicant had previously travelled to Australia under another identity, and the Department determined that the applicant was also known as Xiongbing Xue, born 6 October 1970.
(f)According to Departmental records, Xiongbing Xue arrived in Australia on 31 August 2005 as the holder of a short stay business visa and lodged a protection visa application on 12 September 2005, which was refused by a delegate and affirmed by the Tribunal. His subsequent judicial review application and appeals were unsuccessful.
(g) From 7 July 2008 until 10 August 2009, Xiongbing Xue was granted a series of bridging E visas. On 11 August 2009, he became an unlawful non-citizen, but remained in Australia until he was located and detained by the Department on 26 May 2010.
(h) During an interview with Department officers, he advised that he was also known as Qiao Ping Zheng, born 25 June 1974. He also advised that he was in a de facto relationship with Ms Li Na Yin, born 29 January 1973.
(i) He was removed by the Department with escorts on 21 June 2010, and was issued a notice of removal from Australia, which stated that he would be subject to Public Interest Criterion (PIC) 4004 (debts to Commonwealth outstanding) and PIC 4014 (departure of unlawful non-citizen more than 28 days since substantive visa ceased). He signed this notice on 16 June 2010.
(j) Departmental systems indicated that the second applicant was refused a student visa on 23 April 2008.
(Emphasis in original and citations omitted)
The applicants’ solicitor responded to the s.107 Notice on 31 October 2016, providing written submissions together with statements from the applicant, his wife, his wife’s daughter, the second applicant, and the second applicant’s girlfriend.
On 8 November 2016, the delegate cancelled the applicant’s partner visa pursuant to s.109(1) of the Act. The second applicant’s visa was cancelled by operation of s.140(1) of the Act.
Tribunal proceedings
On 10 November 2016, the applicants sought review of the delegate’s decision. On 13 January 2017, the applicants and their solicitor attended a hearing before the Tribunal to give evidence and present arguments. At the hearing, the applicants provided the Tribunal with a copy of the delegate’s statement of reasons for decision.
At the hearing, the applicant in his oral evidence claimed that he and his sponsor had first met and began living together in 2006. The Tribunal put to the applicant that this was contrary to what had previously been claimed in proceedings in relation to the review of the refusal of the partner visa, which was that they first met each other online on 30 July 2010 and in person on 1 December 2010. The applicant’s solicitor requested further time to respond to the information, which was granted.
On 20 January 2017, the applicant’s solicitor sent a letter to the Tribunal responding to the “questions” which were raised by the member.
Tribunal’s decision
The following summary of the Tribunal’s decision is taken from the written submissions of the first respondent (without alteration):
11The Tribunal was satisfied that the delegate had reached the necessary state of mind to engage s.107, that the s.107 Notice complied with the relevant statutory requirements, and that no issue was raised by the applicant as to its validity (CB 140, [40]). Noting that the applicant acknowledged that he had failed to provide the correct information as set out in the s.107 Notice and the full details of his names were not included in the police certificate, the Tribunal found that there was non-compliance with ss.101(b) and 103 of the Act as described in the s.107 Notice (CB 140, [41]-[43]).
12Having concluded that there was non-compliance, the Tribunal considered whether to exercise its discretion to cancel the applicant’s visa. In making this determination, the Tribunal had regard to all of the prescribed circumstances in r.2.41 of the Migration Regulations 1994 (Cth) (Regulations) and made the following relevant findings:
(a) The correct information was that the applicant had previously entered and been deported from Australia under a different identity, and had a debt to the Commonwealth ([47]). He also provided false information about how his relationship with his sponsor developed, which the Tribunal considered to be a deliberate attempt to mislead the Department and circumvent Australian immigration laws (CB 141, [49]-[50]).
(b) There was no information to suggest that the applicant had taken any steps to obtain a Chinese Police Certificate based on the name that he had previously used (CB 142, [51]-[53]).
(c) The applicant would not have been granted the visa if he had given the correct information (CB 142, [54]). If he had done so, the Department would have been aware that he was subject to PIC 4004 as he had outstanding debts to the Commonwealth and there was no information to suggest that he had made arrangements for payment (CB 142, [55]). The applicant intentionally gave false information because he was aware that his visa application would not be successful if he used his correct or previous identity (CB 142, [56]-[57]).
(d) The applicant continued to provide false information to the Department and the Tribunal (CB 143, [58]-[59]), he claimed protection and appealed against the refusal decision in circumstances where he could not now recall his protection claims (CB 143, [60]-[61]), and he failed to disclose his previous identity when applying for a driver’s licence (CB 143, [62]). He had for an extended period been willing to provide false and misleading information to the Department and other government authorities to obtain immigration and other outcomes (CB 143, [63]).
(e) The applicant had a wife and son in Australia, and the Tribunal gave some weight to the wife’s interests (CB 143-144, [64], [68]). However, it observed that there did not appear to be any significant relationship between the applicant and his wife’s daughters, nor any other significant connections with Australia (CB 143-144, [65]-[66]). His family continued to reside in China and he had been able to obtain work and the support of his family after his return there (CB 144, [67]).
(f) Nothing in the applicant’s behaviour provided weight in his favour and his acknowledgment that he had provided false information was not due to contrition (CB 144, [69]-[72]). The applicant’s assertion that he gave false information only because he did not know that he had to provide information about his previous name was “totally implausible” (CB 144, [73]).
(g) With respect to other instances of non-compliance, the applicant’s inability to recall why he had applied for a protection visa suggested that he never had a valid claim for protection, and his oral evidence that he had no difficulties with the Chinese authorities upon return in 2010 supported this (CB 145, [74]-[76]). Further, the applicant had remained in Australia as an unlawful non-citizen and, when located and detained by the Department, had attempted to escape immigration detention (CB 145, [77]).
(h) The applicant had been living in Australia for three years since the non-compliance and continued to provide false information to the Department, the Tribunal, and the RMS during that time, but the Tribunal gave some weight to the applicant having lived with his wife and son during this time (CB 146, [80]-[81]). There was no information to indicate that he had been charged with any breaches of Australian law or had made any contribution to the Australian community (CB 146, [83]-[84]).
(i) The Tribunal gave some weight to the fact that the son’s visa would also be cancelled (CB 146-147, [85]-[89]), but found that there was nothing to suggest that the applicant’s wife would not be able to return to live in China and maintain contact with her children via the internet as she had done previously, and there was no information to indicate that her children had any particular relationship with or dependence on the applicant (CB 147, [91]-[93]).
(j) The Tribunal placed little weight on the applicant’s claim that he would commit suicide if his visa was cancelled, on the basis that this was the first time such a claim had been made and no supporting medical evidence had been provided, and noting its overall adverse credibility findings (CB 147, [94]-[96]).
13Having determined that there had been non-compliance by the applicant in the manner described in the s.107 Notice and having regard to all the relevant circumstances, the Tribunal concluded that the applicant’s visa should be cancelled and affirmed the decision under review (CB 148, [99]-[101]). The Tribunal also concluded that it did not have jurisdiction with respect to the second applicant (CB, 148, [101]).
(Emphasis in original)
First ground: reasonable apprehension of bias
The applicants rely on a number of matters to support their claim that there was a reasonable apprehension of bias:
a)first, at the hearing, the Tribunal asked the applicant for a copy of the delegate’s reasons for decision when, they allege, it already had a copy;
b)secondly, later in the hearing the Tribunal raised its voice in an attempt to intimidate the applicant and his wife and otherwise badgered the witnesses and laughed at an answer given in evidence; and
c)thirdly, in its reasons for decision the Tribunal made a number of errors of law.
The applicant also relies on the asserted errors of law as a separate ground of review.
Before examining each of those matters, it is necessary to consider the principles that apply to an allegation that an administrative decision is affected by a reasonable apprehension of bias.
The relevant principles applying to a claim of apprehended bias against an administrative decision-maker were summarised by the Full Court of the Federal Court in ALA15 v Minister for Immigration & Border Protection [2016] FCAFC 30 (ALA15) at [35]-[36] per Allsop CJ, Kenny and Griffiths JJ (see also Zaburoni v Minister for Immigration & Border Protection [2017] FCAFC 205):
35Although the application of the apprehended bias test can give rise to difficulties, the parties were in substantial agreement as to the primary elements of the test. That is hardly surprising because the test is relatively well settled. It is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits.
36Other relevant principles are:
(a)at least the following two steps are involved in a case involving an allegation of apprehended bias:
(i) there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and
(ii) there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits;
(b)an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be “distinctly made and clearly proved”; and
(c)as noted above, the test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias.
(Citations omitted)
There is authority for the proposition that a party may waive his or her right to rely on the ground of reasonable apprehension of bias: Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44; Bilgin v Minister for Immigration & Multicultural Affairs (1997) 149 ALR 281; [1997] FCA 1022 (Bilgin). In Bilgin, Finkelstein J at 294 explained that:
… where a party is aware of his or her right to object to a decision-maker deciding a case on account of bias that right will be waived if the party acquiesces in the decision-maker determining the case. Acquiescence will be shown if a party with knowledge of all relevant facts makes no objection to the decision-maker taking part in the proceeding...
More recently, the New South Wales Court of Appeal has explained that, even though, as here, there was no argument that a party had waived an entitlement to take a point of reasonable apprehension of bias: Bezer v Bassan [2017] NSWCA 333 at [65]:
... the absence of any complaint at the time that the impugned conduct occurred militates against a conclusion that a reasonable bystander might apprehend that the primary Judge might not bring an impartial mind to bear on the issues requiring resolution.
The first circumstance relied on by the applicants was the fact that the Tribunal asked the applicant at the hearing for a copy of the delegate’s decision even though it already had a copy. This request was shown in the following extract at page 4 of the transcript:
Tribunal:
… Do you have a copy of the Department’s decision?
Mr Turner:
Yes I do.
Tribunal:
Can I have a copy of that?
Mr Turner:
It should be on the Department’s file that you have.
Tribunal:
I don't think I have got it.
Mr Turner:
…
Tribunal:
Do you have a copy you could provide to me?
Mr Turner:
Yes. That is my only copy.
Tribunal
I will get a copy and give it back to you.
Mr Turner was acting as the applicants’ migration agent for the purposes of the review of the delegate’s decision. He also appeared as their solicitor in these proceedings.
The applicants argued that the only purpose for which the Tribunal insisted on them giving it a copy of the delegate’s decision was to avoid its obligations under s.359A of the Act. The point is that the obligation under s.359A(1) does not apply to any information given by an applicant to the Tribunal (sub-s.359A(4)(b)) and so, by making the applicant give it the delegate’s decision, the applicants say that it was deliberately avoiding its obligations under s.359A(1) of the Act.
While it may be accepted that the delegate’s decision had been given to the Registrar of the Tribunal under s.352(2) of the Act, there are several difficulties with the first part of the applicants’ argument.
First and foremost, the applicants asserted, but did not establish, that there was any obligation under s.359A of the Act in respect of any of the information in the delegate’s decision. Thus, they did not establish that there was any obligation that the Tribunal was seeking to avoid.
Secondly, the applicants did not establish any logical connection between the Tribunal’s asserted desire to avoid the imposts of s.359A and the possibility that it might not decide the case on its merits. The obligation imposed by s.359A is a procedural one, not one that dictates the outcome of the review.
Thirdly, it is at least equally open to infer from the exchange set out at [23] above, that the Tribunal did not have the delegate’s decision with it at the time of the hearing or, indeed, at the time it was preparing for the hearing.
In light of those matters, I am not satisfied that, in asking the applicants for a copy of the delegate’s decision, it was the Tribunal’s intention to avoid any obligation under s.359A of the Act. Alternatively, even if that were its intention, I am not satisfied that it supports a reasonable apprehension that the Tribunal might not conduct the review on the basis of all the material including the evidence to be given at the hearing. The mere fact that the Tribunal seeks to take a shortcut to avoid a procedural requirement does not suggest any possibility that it would not decide the matter on its merits.
The second circumstance relied on by the applicant was that, in certain parts of the hearing, the Tribunal raised its voice to intimidate the applicant and his wife, was sarcastic, badgered the witnesses and laughed at their evidence.
The applicant placed particular reliance on two excerpts from the record of the hearing to establish these assertions. The transcript of the hearing was in evidence and the recording of the two excerpts were also tendered and played in Court. As leave was given to the parties to file further written submissions and some time has passed since the hearing, I have listened to those excerpts again. It was agreed between the parties that the transcript was not accurate in a number of respects. It was agreed that the transcript ought to be read as corrected in the manner suggested in a table prepared by the Minister which became Exhibit 1. On re-listening to the excerpts it became evident that there were further errors in the transcript. I have set those out in bold in the passages extracted below.
The first excerpt[2] was from 44:00[3] to 48:45 of the hearing which started at the fifth last line of page 16 of the transcript and went to the sixth last line of page 17 (even though, in his submissions, the applicant asserted that the excerpt went from page 13 to page 18). In this part of the hearing the Tribunal is questioning the applicant about the debts that he owed to the Commonwealth. The relevant part of the transcript is as follows:
[2] Exhibit 3.
[3] Being a reference to minutes and seconds.
Tribunal:
… or made any arrangements with the Department to make a payment schedule. That was in the Department’s decision which you have given to me today about one of the reasons why you would not be granted the visa. So have you done anything since getting this decision to find out what that debt was and make any repayments?
Applicant:
Yes, because before I used the name Xue Xiong Bing to come to Australia and so this time when I came I used the name Xue Xiong Zhong.
Tribunal:
So because you changed your name you don’t have that debt any longer?
Applicant:
And I applied for the permanent [sic: partner] visa to come here and I don’t know this problem is so serious.
Tribunal:
Well it is in the Department’s decision. Mr Turner has anything been done about that debt?
Mr Turner:
Not that I am aware of.
Applicant:
From my understanding I thought all of the case regarding Xue Xiong Bing has been cancelled.
Tribunal:
Well who is Xue Xiong Bing?
Applicant:
My elder brother.
Tribunal:
No it is you. You used the name.
Applicant:
I didn’t thought that was – I didn’t think that was a problem.
Tribunal:
You didn’t think that lying to the Department and having all those orders made against you was a problem?
Applicant:
Part of my … … mistake. I thought that wasn’t a problem so that is why I – now I knew it is a serious problem.
Tribunal:
The Department’s decision – I don’t know why it is used here [sic: it is news to you] now.
Applicant:
So at the time I was quite cooperating. In 2016 in RTA when they identified I got two names I told them yes I did use two names.
Tribunal:
Well congratulations. That may be the first time you told the truth. …
Contrary to the applicant’s submission, I can discern no occasion in this passage on which the Tribunal member raised his voice, let alone raised his voice with the intention of intimidating the applicant. I accept however, that the Tribunal’s last statement was sarcastic.
The second excerpt[4] was from 1:46:00[5] to 1:49:20 of the hearing which is recorded at page 38, line 6 to page 39, line 3 of the transcript. At this point of the hearing, the Tribunal was asking questions of the applicant’s wife, Li Na Yin. The relevant part of the transcript is set out below. It is not always easy to understand the recording because the witness appears to be responding in Chinese and, at some points in English. The transcript does not show that there are times at which the Tribunal interrupted the responses given in Chinese. The most significant point at which that is done is emphasised in the passage below:
[4] Exhibit 4.
[5] Being a reference to hour, minutes and seconds.
Tribunal:
… It is not a different person. It is the same person that you sitting next to right now.
Lina Yin:
When I met him first time he was called Xue Xiong Zhong.
Tribunal:
It is the same person.
That is why I am finding your attitude extraordinarily disruptive and bad for your own case. Do you understand that? I find the excuses that you have made saying oh well it is a different name so we didn’t know, it is not only quite patronising towards me but it is just purely false.
Lina Yin:
Maybe we have different understanding that’s why I haven’t finished my um … I am aware okay …
Tribunal:
You finish what you want to say.
Lina Yin:
Okay.
Tribunal:
Short phrases please.
Lina Yin:
Because I thought like Xue Xiong Bing he came to Australia with tourist visa and she came back already and my relationship with Xue Xiong Zhong started.
Tribunal:
[interrupting a long passage of evidence in Chinese] Just short phrases.
Lina Yin:
So when we first … the application form so that’s when we made application we used the name Xue Xiong Zhong so when we were asked according to the form about the questions of course we all say no because that was him.
Tribunal:
You didn’t disclose that he had used another name?
Lina Yin:
He didn’t tell me. Application form is the … … name the … …. all of the details … … come to Australia … … China, yes. … … application form … … so that is why it is making me very confusing. This name is the real name seriously.
Tribunal:
I think you conspired together to provide false information to the Department and potentially to deceive the Department.
Lina Yin:
Seriously you know I come … China … I just told you … last year … … … … he used the Xiong Bing Xue name.
At no point during this part of the hearing did the Tribunal member raise his voice. Although the transcript contained a number of exclamation marks, it was agreed that they were not an accurate representation of the tone of the Tribunal member’s voice and that they should be deleted (as they have been in the extract set out above).
It is important that the applicant relied on only two small extracts from the entire hearing. It may be inferred that there was nothing else in the tone of the Tribunal that might support the allegation of apprehended bias. The sarcasm shown by the Tribunal member must be seen in that context. In addition, it must be borne in mind that the applicant had admitted to using a false name and was only found out because of the photo on his second drivers licence. Although the expression of sarcasm in the conduct of a hearing is not to be encouraged, the particular factual context makes it understandable and, in my view, especially given that it was an isolated incident would not lead any lay observer to conclude that the Tribunal might not decide the matter on its merits.
There was nothing in the transcript, taken as a whole and read in light of the sound recording in evidence that supported the conclusion that the Tribunal’s conduct at the hearing gave rise to a reasonable apprehension of bias.
The third circumstance relied on is the number of legal errors made by the Tribunal in its reasons for decision. The applicant asserts that there were two legal errors made by the Tribunal: first, it wrongly concluded that it had no jurisdiction to review the cancellation of the second applicant’s visa; and secondly, that it was wrong to act on the basis that the applicant had been deported.
The Tribunal said the following in respect of its jurisdiction:
3.For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The applicant submitted that, contrary to this statement, the second applicant was “subject to a decision to cancel his visa”. When asked at the hearing what difference this could have made to the conduct of the Tribunal’s review, the applicant submitted that it affected the second applicant’s entitlement to a bridging visa pending the outcome of these proceedings. The parties were given leave to file written submissions addressing these points and the possibility that the Tribunal’s decision was affected in a manner similar to the decision considered by the High Court in Graham v Minister for Immigration & Border Protection (2017) 91 ALJR 890; [2017] HCA 33 (Graham). The Minister filed submissions in accordance with that leave but the applicant did not.
The applicant’s visa was cancelled under s.109 of the Act. Section 140(1) provides:
(1)If a person’s visa is cancelled under section 109 (incorrect information) … a visa held by another person because of being a member of the family unit of the person is also cancelled.
(Emphasis added)
That section applied because the second applicant held his visa because he was a member of the applicant’s family unit: cl.100.321 of sch.2 of the Migration Regulations 1994 (Cth) (Regulations). For that reason, when the applicant’s visa was cancelled, s.140(1) of the Act operated to cancel the second applicant’s visa.
The Tribunal has the power to review pt.5–reviewable decisions: s.348 of the Act. Part 5–reviewable decisions are defined in s.338 of the Act. Section 338(1) relevantly provides that a “decision is a Part 5–reviewable decision if this section so provides…”[6]. This means, quite obviously, that a pt.5–reviewable decision must be a “decision”.
[6] Emphasis in original.
There is no definition of “decision” that applies throughout the Act; however, even if it is taken at its broadest (such as the definition in s.474(3)), it does not include a consequence of the operation of the law without the intervention of any separate action or inaction: see Rani v Minister for Immigration & Multicultural Affairs (1997) 80 FCR 379, 399-400; [1997] FCA 1493; Gul v Minister for Immigration & Border Protection [2016] FCCA 2642 at [33]. For that reason, the cancellation of the second applicant’s visa was not a “decision” and the Tribunal was correct to conclude that it had no jurisdiction in respect of it.
In light of that conclusion it is unnecessary to consider whether the second applicant’s entitlement to a bridging visa was affected or whether the decision of Graham has any application in these proceedings.
The assertion of the second legal error is based on the fact that, in its reasons, the Tribunal referred on seven occasions to the applicant as having been deported. For example, the Tribunal said:
51.As the applicant did not disclose the name by which he had been deported from Australia …
…
56.… When he was previously deported from Australia, …
(Emphasis added)
The applicant says that this was an error because, in fact, the applicant was “removed” from Australia under s.198(1) of the Act whereas deportation only occurs under s.200 of the Act.
Apart from the use of the words “deport” and “deported” there is nothing to suggest that the Tribunal misunderstood the basis on which the applicant had last left Australia; namely, because he was an unlawful non-citizen and so was required to be removed from Australia. At [5] of its reasons the Tribunal set out a summary of the process by which the applicant came to be removed. This included his unsuccessful visa applications, the expiry of his last bridging visa, detention, and the fact that he was “removed to China … with escorts after he had tried to escape detention”.
In light of that, it is apparent that the applicant’s argument relies on a narrow and pedantic approach to the Tribunal’s reasons. Such an approach is inconsistent with well-established principle and must be rejected: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6, in particular at 271-272.
The first ground is rejected.
Second ground: errors of law
For the reasons set out above, there were no errors of law made by the Tribunal and this ground is rejected.
Third ground: premise which did not exist
One of the matters considered by the Tribunal in determining whether to affirm the decision to cancel the applicant’s visa was whether his visa would have been granted had the correct information been known. It found, at [54] of its reasons, that the visa would not have been granted. The applicant argued that this conclusion was based on the applicant’s debts to the Commonwealth and that that was not necessarily sufficient to deny the applicant a visa.
Clause 4004 in sch.4 to the Regulations provides:
4004The applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment.
The applicant’s argument relies on the second phrase in that clause. That phrase means that the applicant is correct to say that the mere fact that a visa applicant has outstanding debts to the Commonwealth is not sufficient to deny that applicant a visa.
The applicant’s argument must be rejected because it ignores the Tribunal’s explanation for its conclusion at [54] of its reasons. The Tribunal explained, at [55], that had the correct information been given, the “Department would have been aware that (the applicant) was subject to PIC 4004 as he had outstanding debts to the Commonwealth” and that there was “no information before the Tribunal that the applicant has at any time made appropriate arrangements for the payment of this debt.” That conclusion is not surprising in light of the evidence at the hearing that the applicant thought that the debt did not matter because it was owed under a different name.
This ground is rejected.
Fourth ground: breach of s.359A of the Act
Section 359A(1) of the Act requires the Tribunal to give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
The applicant contends that the Tribunal failed to comply with s.359A in respect of three matters. The first of these is the delegate’s decision. As I have observed at [27] above, the applicant asserted but did not explain how the delegate’s decision gave rise to any obligation under s.359A of the Act.
The second matter is the fact that the applicant had “applied for a protection visa and appealed against the decision in respect of that application incurring debts to the Commonwealth which had not been paid.” These matters were the subject of questioning at the Tribunal hearing: see pages 13 to 17 of the transcript. The Tribunal put each proposition to the applicant and he responded to each proposition positively. In that way, the applicant “gave” the information to the Tribunal at the hearing and the information came within sub-s.359A(4)(b) of the Act. In light of that, s.359A did not apply to the information.
The third matter is the evidence of the applicant’s wife. Once again, the applicant was vague about what aspect of this evidence gave rise to an obligation under s.359A(1). Quite apart from that, the difficulty with the ground is that the wife’s evidence was, on its face, supportive of, rather than adverse to the applicant’s application for review. For that reason, it could not fall within s.359A(1): SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at [17]; [2007] HCA 26.
The fourth ground is rejected.
Conclusion
The applicant has not established that the Tribunal’s decision was affected by jurisdictional error. The application must be dismissed.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 9 February 2018
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