Yim v Minister for Immigration
[2020] FCCA 532
•13 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YIM v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 532 |
| Catchwords: MIGRATION – Partner visa – cancellation – whether the Tribunal failed to have regard to a relevant consideration – whether legal unreasonableness. |
| Legislation: Migration Act 1958 (Cth), ss.101, 102, 107, 109 Migration Regulations 1994 (Cth), reg.2.41 |
| Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 |
| Applicant: | HUNG TAEK YIM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 424 of 2017 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 21 March 2019 15 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2020 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 424 of 2017
| HUNG TAEK YIM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 12 January 2017 affirming a decision of a delegate of the First Respondent to cancel the Applicant’s Partner (Migrant) (Class BC) (Subclass 100) visa (the Partner visa).
The Applicant, a national of South Korea, successfully applied for a Partner (Provisional) Subclass 309 visa in November 2008 on the basis of his relationship with his wife, Ms Jang, an Australian permanent resident. He came to Australia as the holder of that visa in August 2009. He was granted a Subclass 100 visa in January 2012.
On 24 August 2016 a delegate of the First Respondent gave Mr Yim notice under s.107 of the Migration Act 1958 (Cth) (the Act) of intention to consider cancellation of his Partner visa under s.109 of the Act. This was put on the basis that it was apparent that he had provided incorrect information about the names by which he had been known in the character assessment form lodged with his visa application and incorrect answers on incoming passenger cards on eleven occasions between September 2000 and January 2016 in stating that he had no criminal convictions, when there was evidence that he had convictions in 2001, 2003 and 2008 in Australia.
Mr Yim was given, and took, the opportunity to respond through his migration agent. He conceded that he had breached s.102(b) of the Act (in providing incorrect information on his passenger cards) but submitted that his visa should not be cancelled.
The delegate found that Mr Yim had not complied with s.102(b) of the Act and decided to exercise the discretion to cancel visa.
Mr Yim sought review by the Tribunal. His migration agent provided written submissions. Mr Yim and Ms Jang attended a Tribunal hearing. Both before and after the hearing he provided further material to the Tribunal, including documentation in relation to Thai massage shops he claimed he and his wife operated, copies of his personal tax returns and notices of assessment for the last two financial years and 2016 financial statements for Golden Tree Services Pty Ltd, the company through which the massage shops were operated.
Legislative Framework
Under Subdivision C of Division 3 of Part 2 of the Act visas based on incorrect information may be cancelled.
Relevantly, s.102 is as follows:
A non-citizen must fill in his or her passenger card in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given.
Section 107 of the Act provides for a notice of intention to consider cancellation to be given to a visa holder.
Section 109(1) of the Act relevantly provides that:
Cancellation of visa if information is incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in any way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
For the purposes of s.109(1)(c) the following circumstances are prescribed under reg.2.41 of the Migration Regulations 1994 (Cth) (the Regulations):
(a) the correct information;
(b) the content of the genuine document (if any);
(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d) the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non-compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non-compliance;
(j) any breaches of the law since the non-compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
The Tribunal Decision
In its reasons for decision the Tribunal summarised Mr Yim’s migration and criminal history based on information contained in the departmental file and his statutory declarations of 20 August 2008 and 1 September 2016.
The Tribunal referred to the notice of intention to cancel Mr Yim’s visa and to his response, including Mr Yim’s concession that he had not complied with s.102(b) of the Act. It recorded that he disputed any assertion that had been known by the name “Park” or had entered Australia as Mr Park. His agent pointed out that Mr Yim had not been charged with any criminal offence since 2008 and had disclosed his criminal history in his statutory declaration of 20 August 2008 (in relation to his Partner visa application). The agent claimed that if the visa was cancelled Mr Yim (and Ms Jang) would be forced to leave Australia and that this would cause significant hardship for the couple as they had lived here for many years and would find it difficult to relocate to their country of origin. It was suggested that as this was the first time consideration had been given to possible cancellation, Mr Yim should be “granted the indulgence of at least one exercise of the discretion in his favour”. It was also claimed that Mr Yim and his wife had been operating three Thai massage shops around Sydney together “contributing economic benefits to the Australian community”.
The Tribunal recorded that at the hearing Mr Yim gave evidence that he and his wife lived in a one-bedroom apartment they had purchased off the plan for $545,000 that was subject to a mortgage. Mr Yim claimed that the apartment and the mortgage were in Ms Jang’s name because he had an adverse credit rating. He claimed that “they” had previously owned a property at Strathfield, but that it was also in his wife’s name. He owned property in Korea that had belonged to his late parents.
The Tribunal also recorded that Mr Yim told it that “he owns” three Thai massage shops in Sydney and that his wife (the sole director of the company through which those shops were operated) worked 3 - 4 days per week as a dental technician, so he managed the business, although he said they were in her name. Previously he had worked as a car dealer. He also gave evidence as to gross sales of the business, stated he was unsure of the profit but that he drew a salary of around $48,000 per annum. He told the Tribunal that his wife had minimal involvement in the business, although sometimes if they were very busy she would answer telephone calls. The shops were open 7 days per week and there were about 25 employees working on a roster. He said that most were “on student visas or [were] dependants on their partners’ student visas”. All were women. The majority were from Thailand. Two or three were Korean-born Australian citizens. He gave evidence as to the cost of a massage and the hourly rate he paid the workers. Mr Yim explained to the Tribunal that as his wife was the director of the company she had signed the leases for the 3 shops. He claimed they could not exit the leases early and would have to pay “the remainder of the tenancy” if they vacated.
Mr Yim also gave evidence to the Tribunal that he and Ms Jang had drawn some money from the mortgage on the apartment to purchase shares and that he had also borrowed money from a friend to purchase shares. The business had an overdraft and they were currently in debt.
Mr Yim confirmed his migration history as disclosed in his statutory declaration of August 2008. The Tribunal recorded his oral evidence in that respect. He said he came to Australia in 2000 using the name “Lim”. He explained that he had then applied for a Protection visa because a migration agent advised him that he had no other option if he wanted to stay in Australia. He could not recall the basis for his protection visa claims. He did not follow up with the Department and had no idea what had happened to that application. He claimed he had not worked during that time. According to the Tribunal the Protection visa application was refused in May 2002.
The Tribunal had recorded that in 2001 Mr Yim attended the then NSW Roads and Traffic Authority (RTA) to obtain a driver’s licence using the passport of a friend, Mr Park. The RTA staff detected discrepancies in the documentation presented and contacted NSW Police, who arrested Mr Yim. Mr Yim was summonsed to attend court but did not do so. He was re-arrested by the police in 2013 and charged over this matter, detained at Villawood Immigration Detention Centre and deported.
At the hearing Mr Yim conceded that in 2001 he had used a friend’s passport to try to obtain a driver’s licence. He was arrested, summonsed but did not attend court. He claimed that when he was arrested again in 2003 and deported, he was not aware that he had been convicted of any offence. He had worked as a cleaner and tiler’s assistant prior to his 2003 arrest.
Mr Yim’s evidence was that he returned to Australia in 2003 as the holder of a Tourist visa on a passport (apparently in his name) in order to see Ms Jang with whom he was in a relationship. He “had got used to” Australia and the systems here. He was later detained by the Department as he was working as a travel agent and as an education agent for a multinational company while on a tourist visa. He was detained for a few days and then left Australia.
Mr Yim also conceded to the Tribunal that he later returned to Australia using his brother’s passport. After a few trips to and from Australia with this passport, his bag was searched by customs and his “true” passport located. He was again detained, purchased a ticket and left Australia.
He told the Tribunal that in January 2006 he returned to Australia (as the holder of a Tourist visa) using a friend’s passport because he wanted to spend time with Ms Jang, he had been in Australia for a long period and had sold his business in Korea.
In its account of Mr Yim’s migration history the Tribunal had recorded that the Tourist visa was subsequently extended. Mr Yim then unsuccessfully applied for a Subclass 457 visa. He remained in Australia as an unlawful non-citizen until June 2008 when he was arrested by the police and charged with carrying false documents, including a false driver’s licence and Medicare card. In July 2008 Mr Yim was convicted and sentenced to two months imprisonment. He departed Australia on 16 November 2008 after serving his sentence. Mr Yim confirmed this in his oral evidence to the Tribunal.
His evidence was that he had not been convicted of any offences since 2008.
Mr Yim and Ms Jang married in South Korea in late 2008 and he then applied for the Partner visa and returned to Australia in 2009, after the visa was granted.
The Tribunal recorded that when asked about the information he had provided on his passenger cards, Mr Yim stated that “it had possibly been a mistake on his part”, that he did not read through them carefully and that he focused only on the questions relating to quarantine. However he also claimed that on one occasion a friend had been sitting next to him on the plane so that he could not include information about criminal convictions because his friend may have seen the answers. He also told the Tribunal that he thought that if he acknowledged the convictions he may have been forced to go back to South Korea, even though he had already served two months in prison. He said that he did not read the question carefully.
Mr Yim acknowledged to the Tribunal that he had done the wrong thing in the past. According to the Tribunal, he claimed that it appeared that he had lied, but it was because he was ignorant and did not realise the significance of the issue. He claimed that since being granted the Partner visa he had worked hard and that he “would like to contribute to the community in the future”. He claimed he had assimilated into the culture.
The Tribunal recorded that Ms Jang confirmed Mr Yim’s evidence about their employment, income and assets. She also gave the Tribunal evidence as to the net profit of the three Thai massage shops and the current value of their apartment. She claimed that she and a friend had purchased an off the plan investment property a few months earlier. She paid a deposit from her savings. She also told the Tribunal that she owned an apartment in South Korea. She said that she and Mr Yim were too old to have children, but that she would be forced to quit her job if Mr Yim’s visa was cancelled “because she would have to run the massage businesses”. She told the Tribunal it would be very difficult to run all three shops and she was not sure what she would do. She was aware of her husband’s migration history and that he had done the wrong thing in the past, but claimed that he had been living and working hard in Australia and had not committed any crimes (since 2008).
The Tribunal considered whether there was non-compliance with a provision in the Act as described in the notice of intention to consider cancellation. It was satisfied that Mr Yim had complied with s.101 of the Act (as he did not enter Australia as Mr Park and was never known by that name). However it found that he had travelled to Australia on four occasions between 2013 and 2016 and, as he conceded, had not declared on his passenger cards that he had criminal convictions. The Tribunal found there was non-compliance with s.102 by Mr Yim in the way described in the s.107 notice.
Accordingly the Tribunal considered whether the visa should be cancelled pursuant to s.109(1) of the Act. It noted that cancellation in this context was discretionary, that it must consider Mr Yim’s response to the s.107 notice and that it must have regard to any prescribed circumstances. The Tribunal listed the prescribed circumstances set out in reg.2.41 of the Regulations.
The Tribunal observed that while these factors must be considered, they did not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case. It stated that it may also have regard to lawful government policy as set out in the Department’s Procedures Advice Manual (PAM 3).
The Tribunal stated that it had considered the response to the s.107 notice in addition to the information Mr Yim and Ms Jang had provided. It addressed the reg.2.41 discretionary factors and other matters under a number of headings.
First, in relation to the correct information and whether the decision to grant a visa to or to immigration clear Mr Yim was based wholly or partly on incorrect information, the Tribunal found that the correct information was that Mr Yim had criminal convictions at the time he travelled to Australia on four occasions between 2013 and 2016. He had provided incorrect answers by ticking on the passenger cards that he did not have any criminal convictions. Nevertheless, the Tribunal acknowledged that Mr Yim’s Partner visa was not granted on the basis of the incorrect answers on the passenger cards, as he had previously disclosed information regarding his criminal history (in his 2008 statutory declaration) and his Partner visa was granted before the provision of the incorrect answers in question. It was also said to be unlikely that Mr Yim would have been denied immigration clearance had he provided the correct information (given his prior disclosure). The Tribunal acknowledged that it was possible that disclosing the convictions may have resulted in customs officers assessing Mr Yim as a “higher risk passenger”, although there was no information to confirm this on the departmental file.
In relation to the circumstances in which the non-compliance occurred, the Tribunal found that while Mr Yim had conceded that he had provided incorrect answers, his evidence about the reasons he did this was “internally inconsistent and unconvincing”. The Tribunal observed that Mr Yim had carefully completed all questions regarding quarantine on some of the passenger cards, including declaring certain items. It referred to his various claims that on one occasion he could not answer the question about criminal convictions truthfully because a friend was with him and may have seen his response, that he thought he may have been sent back to South Korea and that he had served his time in prison for his crimes, so he ticked no. The Tribunal was of the view that this evidence indicated that Mr Yim’s incorrect answers on the passenger cards were deliberate rather than an error on his part.
In relation to Mr Yim’s present circumstances, the Tribunal accepted that he was currently living with Ms Jang in a property they purchased in her name in around 2014 which was subject to a mortgage. It accepted that Mr Yim managed three Thai massage shops, although the business and leases were in Ms Jang’s name. It referred to the fact that Mr Yim’s personal tax returns showed an annual income of approximately $30,100 in 2014/2015 and $46,000 in 2015/2016, his parents were deceased, he had intermittent contact with his siblings and he and his wife did not have children.
As to the subsequent behaviour of Mr Yim, any other instances of non-compliance and the time that had elapsed, the Tribunal took into account that Mr Yim provided the incorrect information on the passenger cards on four occasions between 2013 and 2016 with the most recent occasion being some 12 months prior to the Tribunal decision. The Tribunal had no information to indicate that there had been any breaches of the law since January 2016.
Under the heading: “Any contribution made by Mr Yim to the community” the Tribunal stated at paragraphs 53 to 55;
53. Mr Yim and Ms Jang gave oral evidence at the hearing that they are aware that Mr Yim has done the wrong thing in the past, but he has worked hard and is now paying taxes. Mr Yim said that he would like to contribute to the Australian community in the future. His migration agent submitted that Mr Yim has contributed by paying taxes and purchasing properties.
54. The Tribunal accepts that Mr Yim is managing three Thai massage shops and that Ms Jang has limited involvement in those businesses. Mr Yim’s income from this employment is modest; in the last financial year he earned around $46,000 per annum. His most recent income tax return shows he paid around $6,650 in tax. The financial statements for Golden Tree Services Pty Ltd show a net loss before income tax of $14,329 in the year ended 30 June 2016. The Tribunal accepts that the business is employing around 25 employees on a casual basis, but the majority of employees are temporary residents, either on Student visas or the dependent spouses of students. The Tribunal considers that the employees would probably find similar work if Mr Yim or Ms Jang were unable to continue to operate the shops. The Tribunal places limited weight on Mr Yim’s involvement in the massage business or his contribution to the Australian community via the payment of tax.
55. There is no independent evidence before the Tribunal to indicate that Mr Yim has made any other contributions to the Australian community. The Tribunal does not accept the submission made by Mr Yim’s migration agent that purchasing a residential property in Sydney assists the community.
The Tribunal had regard to other matters. It noted that there was no evidence that if Mr Yim’s visa was cancelled there were other persons whose visas may be cancelled under s.140 of the Act. It accepted that Mr Yim may become an unlawful non-citizen and be liable to detention and removal from Australia if the visa was cancelled, but also observed that it would be open to him to return to South Korea within the allowed departure period.
Under the heading: “Hardship to Mr Yim and Ms Jang” the Tribunal referred to the migration agent’s submission that there would be significant hardship to the couple if the visa was cancelled as they had lived in Australia for many years and would find it difficult to return to their country of origin. It was claimed that they had both spent significant periods in Australia and had developed meaningful friendships and social ties with Australians and that Ms Jang was an innocent third party.
The Tribunal considered Mr Yim’s evidence that he had been in Australia for long periods since 2000 and that cancellation of his visa would cause him and Ms Jang hardship. It accepted that if his visa was cancelled this would inevitably result in disruption to Mr Yim’s plans to live and work in Australia, but found that the employment and English language skills he had gained were transferrable. It also had regard to the fact that while Mr Yim had been residing in Australia for long periods since 2000, the majority of his visits were made on the basis of false identity documents and that he had remained unlawfully in Australia for extended periods until arrested by the police and/or detained by departmental officers. The Tribunal was also mindful that Mr Yim had been deported from Australia on a number of occasions and had been detained in immigration detention facilities for breaching visa conditions prior to the grant of the Subclass 100 visa. However, the Tribunal acknowledged that there was no evidence to indicate that Mr Yim had committed any criminal offences since 2008.
The Tribunal found that Ms Jang was an Australian permanent resident. It considered the impact on her if Mr Yim’s visa was cancelled. It noted the parties’ oral evidence that Ms Jang was aware of Mr Yim’s visa status and that he had travelled to Australia using false identity documents on numerous occasions prior to the grant of the Subclass 100 visa. It also referred to her oral evidence that her parents and siblings lived in South Korea, that she had regular contact with them and had no family in Australia other than Mr Yim. It continued at paragraph 63:
… Ms Jang said that she would be forced to resign from her employment as a dental technician to run the massage shops if Mr Yim’s visa is cancelled. She was concerned about her ability to do this without Mr Yim’s assistance. As the business is in Ms Jang’s her name, the Tribunal is not persuaded that there is any barrier to her taking over the day-to-day management of the three massage shops. Alternatively, Ms Jang could close one or more of the shops, sell the business or employ a manager. Ms Jang said that they are committed to all three leases, but it is open to Ms Jang to attempt to exit the leases early or sub-let the premises.
(errors in original)
The Tribunal also observed that although Ms Jang had a large mortgage on the property she currently owned in Sydney, she had recently purchased an investment property, owned some shares and also owned a property in South Korea. It was satisfied that she could rearrange her financial affairs to enable her to maintain her financial commitments in Australia without Mr Yim’s income.
The Tribunal acknowledged that Mr Yim had disclosed his migration and criminal history to the Department in 2008, but was not persuaded that this “abrogates him” from the requirement of disclosing the correct information regarding his criminal convictions on subsequent passenger cards.
The Tribunal accepted that Mr Yim and Ms Jang may well experience some hardship if he was required to return to South Korea, but observed that it was open to him to make a further visa application from South Korea and that Ms Jang could live with him there during the visa processing period if the parties did not wish to live separately. It stated that, alternatively, they could maintain contact through electronic means with Ms Jang visiting periodically, and could also meet in a third country at regular intervals to maintain contact.
The Tribunal was not persuaded by the migration agent’s submission to the Department that as this was the first time consideration had been given to possible cancellation, Mr Yim should be granted the “indulgence” of at least one exercise of the discretion in his favour, particularly as Mr Yim had provided false information on his passenger cards on a number of occasions and the evidence indicated that his actions were “deliberate rather than inadvertent”.
The Tribunal stated that it considered all the evidence before it, including Mr Yim’s disclosure of his criminal convictions prior to the grant of the visa and the fact that he had not been charged with further criminal offences since 2008, but had formed the view that the seriousness of his actions in providing false answers on passenger cards regarding his criminal history outweighed the factors in favour of not cancelling the visa. The Tribunal concluded that the visa should be cancelled and affirmed the delegate’s decision.
These proceedings
The Applicant sought review by application filed in this court on 14 February 2017. He now relies on an amended application which contains 2 grounds. In written submissions he raised what amounted to 2 additional grounds. The First Respondent addressed the issues raised by the Applicant.
There is some overlap between aspects of the 4 “grounds” relied upon by Mr Yim. However it is convenient to consider these grounds separately. I have also considered other issues raised by Mr Yim in oral submissions.
Relevant consideration issue
Ground 1 is as follows:
The Second Respondent failed to take into account a relevant consideration in making the decision:
PARTICULARS
1. The Second Respondent was required to have regard to the relevant consideration of any contribution made by the Applicant to the Australian community, as prescribed by Reg 2.41(k) of the Migration Regulations 1994 (Cth).
2. The Second Respondent failed to take into account the Applicant’s contribution to the Australian community by the purchase of residential property in Sydney (para [55]).
3. The Applicant’s purchase of residential property in Sydney contributed to the Australian community in the following ways:
a. Contribution to the local construction industry in New South Wales, whereby members of the building industry would be employed to build the ‘off-the-plan’ property at Olympic Park; and
b. Foreign investment by non-citizens in Australia’s property market contributes to the Australian community (as it provides investment for Australia’s economy).
The Applicant did not address this ground in his written submissions. In oral submissions he took issue with the Tribunal’s failure to accept that he had contributed to the Australian community by the purchase of residential property in Sydney.
The First Respondent submitted that the Tribunal did not fail to have regard to the Applicant’s general contention, through his migration agent, that purchasing residential property in Sydney assisted the community and that the Tribunal expressly considered any contribution made by him to the community as required under reg.2.41(k) of the Regulations.
It has not been established that the Tribunal failed to consider a relevant consideration mandated by the statutory scheme (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 – 40; [1986] HCA 40). The Tribunal expressly identified the need to consider whether there was any contribution by Mr Yim to the community as required by reg.2.41(1)(k). It also addressed the submission in that respect (see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [111] – [112], Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [68] – [70] and Minister for Immigration and Border Protection v SZSRS (2014) 309 ALD 67; [2014] FCAFC 16 at [52] – [56]).
The Tribunal set out and considered the evidence of Mr Yim and his wife as to where they lived (in a property in Ms Jang’s name) and the purchase of other property by Ms Jang and a friend, Mr Yim’s evidence that he had worked hard and was now paying taxes and “would like to contribute to the Australian community in the future” and recorded the agent’s generally expressed submission that Mr Yim had contributed to the Australian community by paying taxes and purchasing properties.
Under the heading: “Any contribution made by Mr Yim to the community”, the Tribunal accepted that Mr Yim was managing three Thai massage shops. However, relevant to his claims about a contribution to the community by paying taxes, it found that his income from this employment was “modest” and that his most recent tax return showed he paid $6,650 in tax for the 2016 financial year. The Tribunal also considered the financial situation and employment arrangements of the company through which the business was conducted, before placing limited weight on Mr Yim’s involvement in the massage business or his contribution to the Australian community via payment of tax.
While briefly stated, the Tribunal’s rejection of the migration agent’s bare submission that purchasing a residential property in Sydney assisted the community was in circumstances where there was no evidence that Mr Yim himself had purchased any property in Sydney and where, as the Tribunal stated, there was no independent evidence to indicate that he had made any contributions to the Australian community other than through his involvement in the massage business or via payment of tax.
Mr Yim’s attempt to now raise the matters set out in particular 3 to ground 1 does not establish that the Tribunal erred in failing to take into account a relevant consideration or to address evidence or a submission made to it. The only evidence about the purchase of property by Mr Yim was that the one bedroom apartment they lived in, and also an earlier property, had been purchased in the name of his wife, Ms Jang, a permanent resident. His claim was that he hoped to contribute to the community in the future. There is no evidence the Applicant made the claims to the Tribunal asserted in particular 3 such as to give rise to an obligation on the Tribunal to consider such claims. In these circumstances, it was not necessary for the Tribunal to address any potential contribution to the local construction industry or the benefits of foreign investment by non-citizens in considering Mr Yim’s contribution to the Australian community.
The Tribunal did not fail to have regard to the evidence before it or to the suggested contribution to the Australian community as required under reg.2.41(1)(k) of the Regulations.
This ground is not made out.
Unreasonableness issue
Ground 2 in the amended application is that:
The decision is so unreasonable that no reasonable person in the Second Respondent’s position would have made the decision:
PARTICULARS
1. The Second Responded gave no reasons why it rejected the Applicant’s submission that “purchasing a residential property in Sydney assists the community” (para [55]).
2. In order for the Second Respondent to reasonably reject the Applicant’s submission that “purchasing a residential property in Sydney” does not assist the Australian community, such a finding requires a form of intelligible justification (i.e. reasoning). The Second Respondent provided no logical basis for rejecting the Applicant’s argument here.
(emphasis in application)
The Applicant did not address this ground in submissions.
As the First Respondent submitted, there is nothing inherent in the purchase of a residential property which compels a conclusion that such purchase would contribute to the Australian community. The Tribunal’s rejection of the general submission in this respect, without specific elaboration, was sufficient in the particular circumstances of this case. Its reasoning was proportional to the submission made to it. As indicated in relation to ground 1, it must also be seen in light of the Tribunal’s summary of the evidence about property purchases. It has not been established that there was anything illogical or irrational in the Tribunal’s reasoning in the sense considered in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16. This is not a case in which no reasonable decision-maker could have engaged in such reasoning on the evidence before the Tribunal. Such finding does not demonstrate the extreme illogicality necessary to establish jurisdictional error. Nor has it been established that, given the nature of the bare submission, there was otherwise legal unreasonableness in the Tribunal making this finding in the terms in which it did (see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [11]). The Tribunal understood and considered the agent’s submission that Mr Yim had contributed to the Australian community by paying taxes and by purchasing property. An evident and intelligible justification for the response to the bare assertion is apparent in the Tribunal’s account of the evidence before it about property purchases and the absence of any independent evidence to indicate that Mr Yim had made any contribution to the Australian community beyond his involvement in the massage business or his payment of tax on a modest income. No underlying jurisdictional error has been identified.
In so far as this aspect of the decision involved a conclusion, as the First Respondent submitted, it fell within the area of decisional freedom and was not outside the bounds of legal reasonableness in the sense considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [28] per French CJ. The decision has not been shown to be arbitrary, capricious or without common sense.
Ground 2 is not made out.
Hardship issue
In written submissions the Applicant took issue with the Tribunal’s approach to the question of whether Ms Jang could manage the massage shops as follows:
Contention 1 – the hardship to the applicant and the wife – Legal Unreasonableness & Illogicality and Irrationality
·When determining a legally reasonable or unreasonable is involved in the interpretation of the nature by reference to the subject matter in issue, scop.
·Where reasons for the decision are available, the reasons are likely to provide a legally unreasonable or whether a finding is based upon a common sense.
·The determination or judgement of the matter in issue is likely to be fact dependent and require careful attention to the evidence.
8. Under a circumstance where the Tribunal accepted that the Applicant’s wife is a dental technician who has never been involved in any business management or operation. The applicant’s wife has further never obtained any education knowledge regarding management or business operation in the past.
9. Despite the Tribunal is fully aware of this fact, the Tribunal found (Tribunal decision – para [63])” that
“there is no issue to the Applicant’s wife taking over the business managing day-to-day management of three shops.”
10. This finding by the Tribunal does not have independent evidence before the Tribunal, as it is a pure presumption made by the Tribunal.
11. The High Court held Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 [130] that
“Illogicality, irrationality, or the making of a determination not based on finding or inferences of fact supported by logical grounds, provides a separate ground for judicial review in the context of jurisdictional fact finding”
12. the Tribunal’s finding in the above is lacking common-sense judgement or intelligible justification.
The First Respondent submitted that the Tribunal’s reasoning in this respect was open to it on the available evidence and that there was a logical basis for its reasoning that as the director of the company Ms Jang would be able to manage the massage business or had alternative avenues available. It was submitted that extreme illogicality such as to demonstrate jurisdictional error had not been shown.
First, the Tribunal did not make a finding in the terms described in the Applicant’s submission. Nor did it “presume” that there was “no issue” as contended by the Applicant. Rather, at paragraph 63 of its reasons for decision the Tribunal relevantly stated:
… Ms Jang said that she would be forced to resign from her employment as a dental technician to run the massage shops if Mr Yim’s visa is cancelled. She was concerned about her ability to do this without Mr Yim’s assistance. As the business is in Ms Jang’s her name, the Tribunal is not persuaded there is any barrier to her taking over the day-to-day management of the three massage shops. Alternatively, Ms Jang could close one or more of the shops, sell the business or employ a manager. Ms Jang said they are committed to all three leases, but it is open to Ms Jang to attempt to exit the leases early or sub-let the premises.
(emphasis added, errors in original)
In other words, the Tribunal recognised that as the business was already in Ms Jang’s name there was no “barrier” to her taking over the management.
Further, the material before the court does not establish or suggest that the Tribunal was told or accepted that Ms Jang had never had any involvement in any business management or operation (as contended in the submission). Nor is it apparent that there was evidence before the Tribunal that Ms Jang had never obtained any education or knowledge regarding management or business operations, as is now submitted. In so far as this submission was put on the basis that the Tribunal accepted that Ms Jang was a dental technician and there was no evidence that she had the requisite management skills, the Tribunal accepted that Ms Jang had a limited role in the business, but there was nonetheless a logical connection between the evidence before the Tribunal and its reasoning in paragraph 63.
The agent’s initial submission to the Department (in response to the notice of intention to consider cancellation) was that Mr Yim “and his wife have operated several Thai massage businesses in the Sydney region for several years”. The Golden Tree Services Pty Ltd financial statements revealed that Ms Jang was the sole director of that company, through which the massage business was operated.
The only evidence before the court as to what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision. The Tribunal recorded Mr Yim’s claim that he owned the three Thai massage shops, that Ms Jang had minimal involvement and that he managed the business. Although he told the Tribunal that the “businesses” were in her name, he subsequently explained that she was the director of the company and signed the leases for the three shops. He was unsure of the profit of the business. He claimed he drew a salary of around $48,000 per annum. He did not say his wife had never been involved in the business, but rather that while she signed the shop leases, she had minimal involvement, although sometimes, if they were very busy, she would answer telephone calls. He also referred to various property investments in the name of Ms Jang.
Ms Jang confirmed Mr Yim’s oral evidence about their employment, income and assets. Unlike Mr Yim, she did provide an estimate of the net profit of the business. She also provided evidence as to the current value of the apartment in which she and Mr Yim lived and said that she had purchased an off the plan investment property a few months earlier with a friend and had paid a deposit from her savings and that she also owned an apartment in South Korea. She said she would be forced to quit her job if the visa was cancelled because “she would have to run the massage businesses”. She did not say she could not do so. The Tribunal acknowledged that she said that it would be very difficult to run all three shops and she was not sure what she would do.
The Tribunal accepted that Mr Yim was managing the shops and that Ms Jang had limited involvement in the business. However there is nothing in the material before the court to indicate that there was any claim or implication that Ms Jang had no relevant experience, education or knowledge at all regarding management or business operation or that she had no involvement at all with the Thai massage business.
No illogicality or irrationality or finding or inference of fact not supported by logical grounds has been established in relation to the Tribunal’s view on the evidence before it that there would be no “barrier” to Ms Jang taking over the day-to-day management of the three massage shops that were in the name of the company of which she was the sole director. Further, it is apparent that the Tribunal considered the impact on Ms Jang (who is an Australian permanent resident) if Mr Yim’s visa were to be cancelled. The Tribunal specifically considered the submission that Ms Jang would have difficulty running the massage business without Mr Yim. The Tribunal considered the possibility that if Ms Jang found it difficult to run the massage shops, she could close one or more of the shops, sell the business or employ another manager, attempt to exit the leases early or sub-let the premises.
In this way the Tribunal addressed the concern raised in relation to the fact that Mr Yim, presently the manager of the business, may be forced to return to South Korea. It considered not only the impact on Ms Jang in relation to the responsibility for the three Thai massage shops, but also her financial situation more generally as well as any personal hardship that would be caused to her (as well as to Mr Yim) if his visa was cancelled. In its conclusion in relation to the impact of cancellation on Ms Jang, the Tribunal accepted that she may experience “some hardship” if Mr Yim were to return to South Korea.
As the First Respondent submitted, the Tribunal’s reasoning in this respect was reasonably open to it on the available evidence. It considered the submissions about Ms Jang’s ability to manage the business (expressed on her part as a concern about her ability to do so without Mr Yim’s assistance). It made findings that specifically addressed that concern. There was a logical basis for the reasoning that, as the director of the company, the Applicant’s wife would be able to take over day-to-day management or close one or more of the shops leased by the company, sell the business operated through the company or employ a manager to replace Mr Yim.
For a decision to be vitiated by jurisdictional error based on illogical or irrational findings of fact or reasons, “extreme” illogicality must be shown (see Minister for Immigration and Border Protection v SZUXM [2016] FCA 516 at [52] and [54]-[56] and CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [60]-[61]). It has not been established that the Tribunal formed a view that no rational or logical decision-maker could have arrived at on the same evidence as discussed by Crennan and Bell JJ in SZMDS at [130]-[135]. It was also not illogical or irrational for the Tribunal to have regard to Ms Jang’s financial situation in considering whether she could rearrange her financial affairs to enable her to maintain her financial commitments in Australia without Mr Yim’s income in circumstances where, despite the large mortgage on the property Ms Jang currently owned in Sydney, she had also recently purchased an investment property with a friend, owned some shares and had a property in South Korea.
Nor is legal unreasonableness established, whether in fact finding or on an outcome basis. As outlined above, the Tribunal’s conclusion had an evident and intelligible justification, both in relation to this aspect of its findings and its overall conclusion based on a consideration of all the evidence and the discretionary factors.
No jurisdictional error is established on this basis.
The “weight” issue
The other issue raised in Mr Yim’s written submissions was described as “the Applicant’s ownership of business and contribution to the Australian economy – Legal unreasonableness & illogicality and irrationality”. However it differs from ground 2 in the application that takes issue with the fact that the Tribunal “only gave limited weight” to the Applicant’s involvement in the massage business and/or his contribution to the Australian community by payment of tax. It was contended that these two matters should have been given “grave” weight by the Tribunal and that its findings in this respect lacked a rational foundation or lacked common sense. It was submitted that paying tax as an operating business as well as employing employees, including overseas workers, was a contribution to the Australian community.
In support of this contention it was pointed out that Mr Yim had submitted his recent tax returns and business related documents to the Tribunal. It was also suggested that his taxable income had increased dramatically in 2017, although he had only worked for three months due to his visa status.
The Applicant sought to put before the court his notice of income tax assessment for the financial year ending 30 June 2017, an August 2017 contract for the sale of a property to Ms Jang and a notice of assessment of stamp duty payable by Ms Jang in November 2017 despite the fact that these documents post-dated the Tribunal decision of 12 January 2017. This material was not in evidence before the Tribunal. Nor could it have been. It is neither relevant nor admissible. There is no suggestion in the material before the court that while the matter was before the Tribunal (including at the Tribunal hearing on 14 December 2016) the Applicant sought to give evidence about any dramatic increase in profitability of the business or of the amount paid to him as manager of the business (and hence his taxable income) or about intended future property purchases by his wife. These contentions do not go to show any jurisdictional error on the part of the Tribunal.
In support of this ground the Applicant referred to SZMDS per Crennan and Bell JJ at [130]. Their Honours held:
In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
In submissions the Applicant referred to the suggestion in Tisdall v Webber (2011) 193 FCR 260; [2011] FCAFC 76 at [126] per Buchanan J (cited with approval in Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 133 ALD 39; [2013] FCAFC 26 at [85]) that “in a case of suggested illicitly, or of faulty inferential reasoning, the decisive test is not whether there was an error in logic or reasoning but whether there was no foundation for the conclusion reached”.
The Applicant submitted that while the Tribunal gave “little” weight to his contribution to the Australian community by paying taxes and operating a business, this finding had no scientific and independent foundational support and was a “groundless presumption” such that the decision of the Tribunal was legally unreasonable and lacked rationality.
In so far as the Applicant claimed that he owned the Thai massage business, the evidence was that he managed the business. There is no evidence as to the identity of the shareholders in Golden Tree Services Pty Ltd, but the financial records disclosed that no dividend was paid in 2015 or 2016 and that the business showed a “loss before income tax” in both 2015 and 2016.
The Tribunal considered the contention that Mr Yim contributed to the community by paying tax, in light of the fact that it assessed his income from his employment managing the Thai massage shops as modest. It recorded that in the last (2015/2016) financial year he had earnt around $46,000 per annum and paid around $6,650 in tax, while the company had shown a net loss before income tax of $14,329 in the year ending 30 June 2016. It accepted that the business was employing around 25 employees on a casual basis, but had regard to the fact that the majority were temporary residents. It also considered that those employees could probably find similar work if Mr Yim or Ms Jang was unable to operate the massage shops.
It was in these circumstances that the Tribunal placed limited weight on Mr Yim’s involvement in the massage business or his contribution to the Australian community via payment of tax. There was an evidentiary basis or foundation for the Tribunal’s conclusion in this respect. It was not necessary for there to be scientific or independent foundational support for the Tribunal to conclude that it would place only limited weight on these matters in considering whether to cancel Mr Yim’s visa. It cannot be said that no reasonable decision-maker could have reached the same decision on the same evidence.
In so far as Mr Yim now claims that his earnings and hence his income tax have increased dramatically, as indicated, this material was not before or foreshadowed before the Tribunal.
Further, contrary to the Applicant’s contention, I am not satisfied that the Tribunal’s attribution of limited weight to his payment of tax and Mr Yim’s involvement in the massage business was based on a “groundless presumption”. On the contrary. The Tribunal considered the amount of tax paid on Mr Yim’s “modest” income and chose to give it limited weight. It considered the nature of his involvement in the business and its contribution to the community. As the First Respondent submitted, questions of weight are generally a matter for the Tribunal as part of its fact finding function (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10). This was not a case in which an inference was drawn based on no evidence. There was an evidentiary basis for the conclusion reached (see Rawson Finances at [62]) and on the evidence before the Tribunal, it cannot be said that no rational or logical decision-maker could have taken this approach.
In so far as Mr Yim disagrees with the Tribunal’s conclusion in this respect, he seeks impermissible merits review.
No jurisdictional error has been established on this basis.
Other issues raised at the hearing
In oral submissions Mr Yim contended that the Tribunal had failed to consider all the evidence before it. When given the opportunity to elaborate, he claimed that the contribution he made to the Australian community and other aspects of his life were not properly considered by the Tribunal.
The Applicant’s concern was that the Tribunal had cancelled his visa on the basis of incorrect information on his passenger cards (which he claimed he had not understood was important) despite matters which he believed favoured not cancelling the visa. He suggested that his past record somehow had a negative effect on the Tribunal. He suggested that the decision lacked common sense. He raised the negative impact on Ms Jang of cancellation of his visa.
In so far as the Applicant took issue with the merits of the Tribunal decision, merits review is not available in this court. As discussed above, the Tribunal’s findings (both in relation to contribution to the community and the impact on Ms Jang) were reasonably open to it on the material before it. The Tribunal grappled with the evidence before it, including in relation to the hardship to Ms Jang if Mr Yim returned to South Korea. It considered all the evidence before it as outlined above.
The Tribunal’s approach to Mr Yim’s migration history and the fact that he had a record of criminal convictions has not been shown to be indicative of actual bias, in the sense of a state of mind indicating commitment to a conclusion already formed such as to be incapable of alteration, whatever evidence or arguments may be presented (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72]). Mr Yim acknowledged his migration history and conceded that he had failed to declare his convictions on his passenger cards. The Tribunal was obliged to have regard to the correct information and the circumstances in which non-compliance occurred under reg.2.41 of the Regulations. In that context the Tribunal also had regard to the fact that Mr Yim had previously disclosed information about his criminal convictions in a 2008 statutory declaration provided to the Department and that the Partner visa had not been granted on the basis of the incorrect answers. It limited its consideration of the non-compliance to that which occurred after his Subclass 100 visa was granted. The Tribunal’s finding that the evidence indicated that Mr Yim’s incorrect answers were deliberate, rather than an error on his part, was reached on the basis of his internally inconsistent and “unconvincing” evidence, which the Tribunal described.
The Tribunal considered all the matters required under reg.2.41 and other relevant matters on the evidence before it. It was not indicative of pre-determination for the Tribunal (in considering Mr Yim’s claims that he had been in Australia for long periods since 2000) to have regard to the fact that the majority of the visits were made on false identity documents, that Mr Yim had remained here unlawfully for extended periods until detected and that he had been detained and deported as well as to the fact that there was no evidence to indicate that he had committed any criminal offences since 2008. It was entitled to assess the evidence and attach such weight to it as it regarded appropriate.
Nor has it been established that the Tribunal reasons were such as to reveal apprehended bias by reference to the hypothetical fair-minded and appropriately informed lay observer as explained in Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425; [2001] HCA 28 at [28].
The Applicant’s disagreement with the merits of the Tribunal’s decision does not identify any jurisdictional error.
As no jurisdictional error has been established, the application must be dismissed.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 13 March 2020
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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Statutory Construction
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