Zhang v Minister for Immigration
[2019] FCCA 255
•8 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZHANG v MINISTER FOR IMMIGRATION | [2019] FCCA 255 |
| Catchwords: MIGRATION – Business Skills, significant investor visa – application refused on basis Applicant failed to satisfy Public Interest Criterion 4020 – whether decision-maker failed to perform statutory task by not assessing and considering evidence – whether failure to make an inquiry in a manner constituting jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 65, 66, 430 Migration Regulations 1994 (Cth), cl.188.213, Schedule 4 Public Interest Criterion 4020 |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous |
| Applicant: | ZHENHUA ZHANG |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2781 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 7 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Poynder |
| Solicitors for the Applicant: | LAS Lawyers and Consultants |
| Counsel for the Respondent: | Mr Knowles |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue quashing the decision made by the delegate of the Respondent on 22 May 2015 refusing to grant the Applicant a Subclass 188 visa.
A writ of mandamus issue requiring the Respondent to determine Mr Zhang’s application for a Subclass 188 visa according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2781 of 2015
| ZHENHUA ZHANG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of a delegate of the Respondent dated 22 May 2015 refusing Mr Zhang’s application for a Business Skills (Provisional) (Class EB) (Subclass 188) visa.
In September 2014, in response to an expression of interest, SkillSelect invited Mr Zhang to apply for a Subclass 188 visa in the Significant Investor stream. On 13 November 2014, Mr Zhang, through his migration agent, lodged an online application for such a visa on the basis that he was nominated by the government of New South Wales and intended to invest AU$5 million in ASIC-regulated managed funds.
On 3 December 2014, Mr Zhang’s migration agent wrote to the Department’s Business Skills Processing Centre in Hong Kong enclosing documents in support of the visa application. Relevantly, these included a bank statement for an account in Mr Zhang’s name with the Commonwealth Bank in Sydney showing a closing balance as at 16 October 2014 of over AU$2,293,000 and two Certificates of Balance for term deposits by Mr Zhang with the Commonwealth Bank certifying balances at close of business on 16 October 2014 of AU$1,710,000 and AU$1,000,000. Also provided were records of transactions through Credit Investment Ltd which reflected deposits to and withdrawals from the Commonwealth Bank account.
In a signed declaration as to the source of the funds of AU$5 million, Mr Zhang and his wife referred to their salaries and to a 2005 bequest from Chen Sixian (who was identified in other documents as Mr Zhang’s late grandfather).
In supporting documentation it was claimed that Mr Chen Sixian had ownership and use rights in relation to specified land in China that in June 2005 had been requisitioned by the government for the purposes of a reservoir project. A copy (and translation) of a Land Acquisition Agreement in relation to the land was provided. Chen Sixian was paid compensation of over 28 million RMB on 28 June 2005 according to a payment receipt (which was said to be approximately AU$4.625 million as at the 2005 exchange rate). It was claimed that in July 2005 a bequest agreement (a copy of which was also provided) was entered into between Chen Sixian and Mr Zhang stipulating that Mr Zhang would be responsible for supporting Chen Sixian’s daily life and that Mr Zhang would receive 28 million RMB when Chen Sixian died. Chen Sixian died on 8 August 2005. Mr Zhang was said to have received the bequest.
Other documents provided were described as tax documents and translations. In particular, a document described in its translation as a Tax Payment Certificate dated 1 July 2005 issued by the Tax Collection Department, Local Taxation Bureau, Wanzhou District, Chongqing City stated that Chen Sixian had paid 4,172,770.20 RMB in individual income tax on income from the transfer of property. This document (referred to as the tax payment receipt) was said to bear a seal for the Taxation Collection, Local Taxation Bureau, Wanzhou District, Chongqing and to have been “filled” by Chen Xuhuan. Another 2005 Tax Payment Certificate in Chen Sixian’s name recorded payment of other taxes.
On 3 February 2015 the Department sought further information from Mr Zhang, including certification of his cash assets, other than the amount of AU$2.17 million in the Commonwealth Bank term deposits.
On 3 March 2015 Mr Zhang’s agent provided a further Certificate of Balance from the Commonwealth Bank stating that the account in Mr Zhang’s name (for which a statement had previously been provided) had a balance as at close of business on 16 October 2014 (the same date as certified in relation to the term deposits) of AU$2,293,418.45.
In a covering letter the agent pointed out that the money Mr Zhang held in Australia amounted to the required AU$5 million investment fund. Further information was also provided about the investment company through which Mr Zhang had made transfers from his Chinese bank account into Australia.
However, in the meantime, on 4 February 2015 the Department had also sought verification of the 2005 tax payment receipt in relation to income from transfer of property in the name of Chen Sixian through officers at the Australian Consulate-General in Guangzhou. In particular, the officers were asked to check if the amount referred to in the tax payment receipt had been paid by Chen Sixian.
In a report as to the result of the verification check dated 9 February 2015 a visa officer in the consulate stated that she had contacted “Chongqing City, Wanzhou District Local Taxation Bureau” on a specified telephone number on 6 February 2015 and had spoken with a Mr Liu and that at his request had emailed (a copy of) the tax payment receipt “for their office” for verification as it had been issued ten years earlier. The report recorded that Mr Liu had contacted the writer on 9 February 2015 and had advised by telephone that “their office” did not issue the tax payment receipt; that the format of the certificate was not used before 2014; that “their” tax office did not in the past or at the time of the verification check have any employee called Chen Xuhuan (who was named on the tax payment receipt as the officer who issued it); and that there was “no such a tax payment record paid by Chen Sixian” according to their office’s record. The report writer expressed the view that, based on this information, she was satisfied that the tax payment receipt was “non-genuine”. This report was provided to the delegate on 20 April 2015.
On 21 April 2015, the delegate of the Respondent wrote to Mr Zhang, by email to his migration agent, inviting him to comment, within 28 days, on the results of the verification check, on the basis that it appeared that he had provided a bogus document in relation to his source of funds and nominated assets. His attention was drawn to the requirement that an applicant for a Subclass 188 visa must satisfy Public Interest Criterion 4020 (PIC 4020) in Schedule 4 to the Migration Regulations 1994 (Cth) (the Regulations) which relevantly required that there be no evidence before the Minister that the applicant had given or caused to be given to the Minister a bogus document or information that was false or misleading in a material particular. Mr Zhang was also invited to specify if he believed there were any compelling or compassionate circumstances to justify waiver of the requirements of PIC 4020(1). The invitation to comment referred to the evidence as to the source of funds and stated:
As part of the assessment process, a verification check was conducted with Chongqing City Wanzhou District Local Taxation Bureau and we were advised that they did not issue the PIT payment receipt and that there is no such a tax payment record by CHEN Sixian according to their office’s record. In particular, the Bureau stated that the format of the PIT payment receipt was not used before 2014 and they do not have any issuing officer called CHEN Xuhuan as indicated on the receipt.
On the basis of the above, it appears that you have provided bogus document (sic) in your application in relation to your source of funds and nominated assets.
Early on 19 May 2015, Mr Zhang’s representative emailed the Department. She attached a copy of a letter dated 18 May 2015 from Mr Zhang to the Department (and a translation) and sought additional time to provide supporting documents.
In his letter of 18 May 2015, Mr Zhang stated:
Dear Case Officer,
I have received your email forwarded from my authorized agent. In that email you presented your concern about the authenticity of the Personal Income Tax payment receipt of my grandfather Mr. CHEN Sixian.
Regarding the source of my income, the Personal Income Tax payment receipt I provided was found in the remains of my grandfather. It means that this document had already existed even before I have the thought of applying this visa. I believe that my grandfather had no reason to keep a bogus document in his remains.
I had contacted the Taxation Bureau of Wanzhou Chongqing at the end of April, regarding what you mentioned in your email. Since my household and my residential address is not in Chongqing but in Chengdu, and also due to the matter I would like to inquire is not directly related to myself, I had to carry the original copy of the Personal Income Tax payment, Notarial Certificate of Kinship and Notarial Certificate of Death of my grandfather to Wanzhou District. Wanzhou District is a small town located more than 300 miles away, it was called Wanxian City before and was merged into Chongqing and renamed Wanzhou in 1997. Also in April 2005, several districts (Longbao/Tiancheng/Wuqiao) were merged into Wanzhou District. My grandfather died at 2005 and the Personal Income Tax payment receipt was also issued at 2005, it was claimed by the staff of Taxation Office that due to several changes of region zones of Wanzhou, the formation of local taxation offices had witnessed merged and changed. It will need to review the hard copy records to confirm the taxation records of my grandfather. During the period of my inquiry, there is no one ever give me a certain declaration that this Personal Income Tax payment receipt is either illegal or bogus. Following the clues given by the staff, now I have already got in touch with the officer of related taxation office. I hope I could provide you some supporting evidence with notarial when I make things clear and get related proof.
Meanwhile, I need to be involved in business trips due to work reason and I could only work on this matter by inquiring authorities in my spare time. I have noticed that you requested that I make response and provide supporting documents within 28 days from the date you sent the email, which is dated on 19 May 2015. I sincerely wish the above reasons could be considered by you and give me a 28 days extension. Your kind understanding is really appreciated.
Declarant: ZHANG Zhennhua
18/05/2015
(errors in original)
Later on 19 May 2015, the Applicant’s migration agent again emailed the Department, stating that Mr Zhang had just called her and had provided supporting documentation, including Mr Chen Sixian’s personal tax documents and a “statement” from “the taxation office of Mr CHEN Sixian’s previous household area”. She advised that Mr Zhang had told her that the taxation office had completed the investigation and had provided him with those documents that day. The agent explained that certification and receipt of the original documents would take 3 to 5 days. She suggested that if the departmental officer did not think it was urgent, Mr Zhang could ask the local taxation office to send the original documents to the Department directly. She asked the officer to advise “which way is more proper”. She again sought an extension of time based on the “current situation”.
However in a response of 19 May 2015 the officer refused the application for an extension of time on the basis that Mr Zhang had already had 28 days to respond to the email of 21 April 2015. She stated that she would shortly be making a decision based on the information available, but that she was obliged to take into consideration any information provided before the decision was made. I note that no issue has been taken in these proceedings with the reasonableness of this exercise of discretion.
On 20 May 2015 Mr Zhang’s agent informed the Department that she had just received an attached “statement document” from Mr Zhang and would send a certified copy of the personal tax document as soon as possible. It is apparent that the “statement” is the “Certification” described below.
Later that day Mr Zhang’s agent also provided the Department with what she described as a “Notarial Certificate of Taxation Payment document for Mr CHEN”. It was dated 18 May 2015 and certified that the copy of the tax payment receipt conformed to the original shown to the Notary Public and that the English translation of the copy tallied with the Chinese original. Also provided was a further copy (and fresh translation) of Chen Sixian’s tax payment receipt. The translation was in essence identical to the translation of the tax payment receipt previously provided to the Department.
The statement identified by the agent as from the taxation office of Mr Chen Sixian’s previous household area was described in its English language translation as a “Certification” dated 19 May 2015 which bore the seal of the “Chongqing Wanzhou District Local Taxation Bureau, Pailou Taxation Office” and a contact telephone number and stated:
We herein certify that, Inquiring Person ZHANG Zhenhua, National ID [number recorded], has brought an original copy of Personal Taxation Payment Receipt of his deceased relative CHEN Sixian to our Taxation Office for inquiring the record of this Personal Taxation Payment Receipt.
Now we ascertain as follow:
Name of Tax Payee: CHEN Sixian, National ID of Tax Payee: [number recorded on the tax receipt], Original Reference No.: [voucher number recorded on the tax receipt]. Payment Date: 1st July 2005, Amount: RMB¥4,172,710.20.
We ascertain this Personal Taxation Payment Receipt is genuine and valid after investigation.
Contact number: 023-58966202
Date:
19/05/2015
Seal: Chongqing Wanzhou Disctrict Local Taxation Bureau
Pailou Taxation Office
The Delegate’s Decision
By email dated 26 May 2015 the delegate notified Mr Zhang that his visa application had been refused because he did not satisfy the criterion in cl.188.213 in Schedule 2 to the Regulations (which, relevantly, required him to satisfy PIC 4020).
In an attached decision record dated 22 May 2015 the delegate summarised Mr Zhang’s claims in his visa application and described the tax payment receipt submitted as supporting evidence. She did not refer to any of the documentation about funds of over AU$5 million in Mr Zhang’s name in an Australian bank.
The delegate stated that “[a]s an integrity measure”, the tax payment receipt was “referred to the issuing authority for verification” and that “[a]ccording to the officer at the relevant tax bureau, there was no such a tax record paid by a person of the name CHEN Sixian”; that the bureau had advised that the format of the tax receipt was not used before 2014; and that there was no record of an issuing officer named Chen Xuhuan ever having worked “at the bureau”. The delegate stated that based on this information the receipt was considered to be a bogus document.
The delegate referred to her email of 21 April 2015, to the letter from Mr Zhang and to the fact that Mr Zhang had been advised through his agent that his circumstances did not warrant a further extension of time, but that any information provided before the decision was made would be taken into consideration.
The decision record continued:
Your response was received electronically on 20/05/2015. The following documents were submitted supporting your submission that the tax receipt is not a bogus one:
A) Letter from Chongqing City Wanzhou District Local Taxation Bureau certifying payment of tax by CHEN Sixian; and
B) Notarial Certificate issued by the Hubei Province Changjiang Notary Public Office certifying that the copy of the tax receipt conforms to the original document.
Under the heading “FINDINGS and REASONS” the delegate stated that a decision-maker “must accord due weight to the finding of a verification check” and found on the basis of the information and evidence before her that:
(1) the document verification was conducted in a clear and direct manner and the outcome was unequivocal. When a verification check was conducted with Chongqing City Wanzhou District Local Taxation Bureau, an officer personally confirmed that there was no record of any tax payment made by a person of the name CHEN Sixian. In particular, the officer confirmed that the format of the payment receipt was not used before 2014 and the bureau did not and does not have any issuing officer named CHEN Xuhuan;
(2) the notarial certificate sent electronically from your migration agent in response to the letter inviting you to comment can only support the tax receipt being a true copy of the original document but since the notarial office is not the responsible administrative party to authenticate taxation matters, the notarial certificate is therefore unable to be accorded much weight.
On the basis of the above, I am unable to find the documentation provided in response to the invitation for comment sufficiently strong to refute the non-genuine nature of the tax receipt. As such, I find that there is evidence that you have given, or caused to be given, a bogus document in relation to the application for visa. As such, I am not satisfied that you meet PIC 4020(1).
As you have not provided any evidence to support that there are compassionate or compelling circumstances which exist to warrant the waiving of PIC 4020(1), I am not satisfied that PIC 4020 is met.
As the delegate concluded that Mr Zhang did not satisfy cl.188.213, she found it unnecessary to consider the other criteria for this subclass of visa. She refused the visa application.
These proceedings
Mr Zhang commenced proceedings in the High Court on 2 September 2015 seeking review of the delegate’s decision. Gageler ACJ granted him an extension of time under s.486A(2) of the Migration Act 1958 (Cth) (the Act) and then remitted the matter to this court (see s.476B of the Act).
It is not in dispute that this court has jurisdiction in relation to the decision of the delegate which, as pointed out by the Respondent, is not a Part 5 reviewable decision and hence not a “primary decision” within the meaning of s.476(4) of the Act.
The grounds relied on are those set out in the application for an order to show cause filed in the High Court. They are as follows:
1. The delegate failed to have regard to or to make any findings in relation to a Certification letter dated 19 May 2015 provided by the plaintiff to the delegate.
2. The delegate failed to conduct a relevant inquiry into the authenticity of a Tax Payment Certificate provided by the plaintiff to the delegate.
Particulars
The plaintiff provided the delegate with a Certification letter dated 19 May 2015 which included a telephone number that the delegate ought, in all the circumstances, to have used to contact the author of the letter to check the authenticity of the Tax Payment Certificate previously provided by the plaintiff to the delegate.
Under cl.188.2 in Schedule 2 to the Regulations primary criteria for the visa had to be satisfied at the time of decision. Subclause 188.213 required an applicant to satisfy specified public interest criteria, including PIC 4020. PIC 4020(1) relevantly provided that:
There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa …
At the time of the decision “bogus document” was defined in s.5(1) of the Act (not in reg.1.03 by reference to s.97 of the Act as the delegate appeared to suggest). However the definition was, relevantly, the same. It provided:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
Both grounds of review relate to the Certification of the tax payment receipt as genuine which Mr Zhang claimed he had obtained from the Pailou Taxation Office and which his agent told the delegate was from the taxation office of Mr Chen Sixian’s previous household area.
In the course of considering the application for an extension of time, Gageler ACJ referred to affidavit evidence which included an affidavit of Yan (Sophie) Qi, the Applicant’s migration agent, affirmed on 13 August 2015 exhibiting copies of documents relating to Mr Zhang’s visa application and an affidavit of Seg Ben (Stephen) Kwong also affirmed on 13 August 2015 which were also relied on before me and to the parties’ submissions.
Mr Kwong’s unchallenged evidence is that in May 2015 he accompanied his friend Mr Zhang when he was making inquiries of the relevant local taxation bureau in China. He stated that the authority referred to on the tax payment receipt was the Local Taxation Bureau in the Wanzhou District of Chongqing City, which was more than 400km from Mr Zhang’s home city and that from Chongqing he and Mr Zhang had driven 300km to the Wanzhou District Local Taxation Bureau. After they obtained requested documents about Mr Zhang’s relationship to and bequest from his grandfather they had returned to the “Bureau” where they were told there was no record of the tax receipt in the Bureau database, that hard copies of receipts were kept at the “local” taxation office and that they had to go to the Pailou Taxation Office which had issued the tax payment receipt. Mr Kwong’s evidence is that they found the Pailou Taxation Office on 13 May 2015 and made inquiries with Lan Chao, the supervisor of the archives section, who told them that he would look for the hard copy of the tax payment receipt (as there was no electronic data for documents that old), that this would take some time and that it might not be successful. Mr Kwong understood from Mr Zhang that subsequently Mr Lan finished the investigation and provided a Certification regarding the tax payment receipt issued by Pailou Taxation Office. Mr Kwong confirmed that Mr Lan’s contact telephone number was on the Certification.
However, Mr Kwong’s evidence was not before the decision-maker.
Ground 1
The Applicant submitted that the delegate had failed to have regard to or to make any findings in relation to the Certification dated 19 May 2015. This Certification, from the Pailou Taxation Office, was said to be central and critical, as it directly contradicted the verification report and if it was genuine it provided an authoritative answer, from the original source of the tax payment receipt, to the delegate’s concern that the tax payment receipt was a bogus document. It was submitted that it was apparent on the material before the delegate that this information was said to come from a taxation office other than the main office in Chongqing where the consular officer had made an inquiry.
It was submitted that it was apparent from Mr Zhang’s letter that in response to the invitation to comment the decision-maker had been put on notice that evidence was to come and that it may come from a different taxation office.
Further, it was pointed out that in her email to the delegate of 19 May 2015, Mr Zhang’s migration agent had advised that Mr Zhang had just called her about documentation he received that day and had provided supporting documentation including, relevantly, a statement (the Certification) which the migration agent stated was from the Taxation Office of Chen Sixian’s previous household area which had completed an investigation.
Mr Poynder, counsel for Mr Zhang, submitted that the inference from this material was that the Applicant had tracked down the hard copy records to the office at the place where his grandfather had his household registration. It was contended that it was apparent on the material before the delegate that the Certification came from an office other than the taxation office where the consular official had carried out the verification inquiries for the delegate.
The Certification under the seal of Chongqing Wanzhou District Local Taxation Bureau, Pailou Taxation Office (that the tax payment receipt was found to be genuine and valid after investigations) was said to be critical information from the original source of the tax payment receipt that it was a genuine document.
The Applicant submitted that the delegate should have considered the Certification in her findings in light of this evidence.
It was contended that it could not be said that the delegate might not have reached a different decision in relation to the genuineness of the tax payment receipt had the delegate engaged with the Certification from the Pailou Taxation Office.
The Applicant pointed out that the only reference by the delegate to the Certification was in the claims and evidence section of her reasons for decision. It was described as:
A) Letter from Chongqing City Wanzhou District Local Taxation Bureau certifying payment of tax by CHEN Sixian…
However, nowhere else, including in the findings and reasons section of the decision, did the delegate make any findings as to the genuineness or otherwise of the Certification nor did she mention that document specifically. It was submitted that this could be seen as a failure by the delegate to have regard to a relevant consideration (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]) or, alternatively, a failure by the delegate to perform her statutory task to consider the facts and merits of the Applicant’s claims (see Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [31]-[36] and Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; (2013) 229 FCR 290 at [22] per Flick J).
In oral submissions Mr Poynder observed that, it was apparent from the transcript of the proceedings in the High Court (see Zhang v Minister for Immigration and Border Protection [2015] HCATrans 244) for the purposes of ascertaining whether there was a genuine issue to be tried, Gageler ACJ had not accepted the Respondent’s suggestion that it was sufficient for the delegate simply to refer to the Certification in the description of claims and evidence without referring to it in her findings and reasons.
Gageler ACJ had stated (at 24-25):
Without forming any view on whether an inference should be drawn that the delegate failed to consider the Letter of Certification, it is sufficient for me to be satisfied that the drawing of such an inference cannot be concluded, on the basis of the reasons for the decision alone, to be not open. It might be thought to be of some significance that the reasoning of the delegate referred specifically to the Notarial Certificate and not to the Letter of Certification in the “Findings and Reasons” section. It might also be thought to be of some significance that the delegate referred to the verification check conducted with the Chongqing City Wanzhou District Local Taxation Bureau without making any reference to the Letter of Certification having been issued by the Pailou Taxation Office.
It was acknowledged that in her findings and reasons the delegate had referred specifically to the notarial certificate and to the verification check conducted with the Chongqing City, Wanzhou District, Local Taxation Bureau, but pointed out that she had not referred to the Certification by the Pailou Taxation Office in this part of her reasons. The Applicant submitted that an inference should be drawn that the delegate failed to consider the Certification. It was contended that it was not sufficient simply to refer to the Certification in the claims and evidence section, without referring to it in the findings and reasons and that to merely refer to evidence was not necessarily sufficient to demonstrate that the decision-maker had engaged with and made findings in relation to the evidence.
Mr Poynder referred to Islam v Cash [2015] FCA 815; (2015) 148 ALD 132 in which Flick J considered whether the Assistant Minister for Immigration had failed to have regard to a relevant consideration in refusing, on character grounds, to grant a visa. It had been argued that insufficient consideration had been given to the interests of the applicant’s children (as required by a Direction made pursuant to s.499 of the Act). In that context, Flick J had observed at [14]:
Such consideration as is given to those matters, it is to be recognised at the outset, must be a consideration in accordance with law. Mere advertence to a consideration, it is accepted, without any analysis may not be sufficient… For a consideration to be properly taken into account, a decision-maker must give more than mere “lip service” to a relevant consideration… There must be “proper, genuine and realistic” consideration of those matters that are required to be taken into account: Williams v Minister for the Environment and Heritage [2003] FCA 535 at [29] - [30], (2003) 74 ALD 124 at 130…
(emphasis added)
The Applicant submitted that for the delegate merely to point to the Certification as an item of evidence in the claims and evidence section of her reasons was not sufficient. It was contended that the delegate had not given “proper, genuine and realistic” consideration to the Certification in the sense that there was no analysis of it in the findings and reasons part of the decision. It was explained that the contention was not that the delegate forgot about the Certification, but that she erred in failing to make findings on it when required to do so.
The Applicant suggested that as there was no express reference to the Certification in the findings and reasons part of the decision or analysis of it anywhere in the decision, there was no basis to infer that the reference in the findings and reasons to “documentation provided in response to the invitation for comment” which occurred immediately after the reference to the notarial certificate (as set out at [25] above) included the Certification, but that, even if the delegate had the Certification in mind as part of such “documentation”, she had fallen into error in failing to assess and make findings about the Certification.
As to the Respondent’s contention that the delegate had a less onerous obligation in giving reasons than that of the Tribunal, it was submitted that in this case the delegate had given reasons and they were open to be analysed.
Mr Poynder also took issue with the Respondent’s suggestion that “all” the delegate had “to work with” was the information in the Certification and that this did not put her on notice of any of the issues addressed in Mr Kwong’s later affidavit which had not been before her. While it was acknowledged that Mr Kwong’s evidence was not before the delegate, it was pointed out that she had before her, the Certification, the letter from Mr Zhang dated 18 May 2015 and the explanation as to the source of the Certification from Mr Zhang’s agent referred to above.
The Applicant pointed to the fact that in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] the Full Court of the Federal Court had stated that “Where… there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the [decision], a failure to deal with [the evidence] in the published reasons may raise a strong inference that it had been overlooked”.
It was submitted that, consistent with Applicant WAEE, in determining whether the delegate had erred in failing to deal with the Certification in her findings and reasons it was not necessary to determine how strong or weak such evidence was, but rather to consider whether, if the issue it addressed was resolved in the Applicant’s favour, it would be centrally relevant to and/or dispositive of the decision. This was said to be the case in this instance, if the contents of the Certification were true.
The Applicant submitted that the court should reject the Respondent’s suggestion that the Certification was not centrally relevant or critical because if there was any “residual” evidence that there was a document the Minister reasonably suspected was bogus (such as the verification) PIC 4020(1) (which refers to “no evidence” of a bogus document) would still not be satisfied. It was contended that if the delegate were to accept the contents of the Certification then the information going in the other direction would fall away so that the Minister (or delegate) would not be satisfied that there was any evidence of a bogus document within PIC 4020(1).
The Respondent acknowledged that it may be accepted that if a decision-maker overlooked or ignored an important piece of evidence that was material to the exercise of its function then it may fall into error (see SZRKT at [111]). However there was said to be no basis to conclude that the delegate ignored or overlooked the Certification of 19 May 2015. It was submitted that the Applicant’s submission in this respect depended on the court ignoring the express reference to the Certification in the delegate’s reasons and overlooking the context in which the issue arose.
The Respondent contended that the fact that the delegate expressly referred to the Certification when listing the material received on 20 May 2015 and noted that the documents submitted supported the submission that the tax payment receipt was not a bogus document was a powerful indication that the Certification had not been overlooked (see Applicant WAEE at [47]).
It was submitted that the delegate’s reasoning should be understood as directly considering the Certification, on the basis that the delegate held that:
… (2) the notarial certificate sent electronically from your migration agent in response to the letter inviting you to comment can only support the tax receipt being a true copy of the original document but since the notarial officer is not the responsible administrative party to authenticate taxation matters, the notarial certificate is therefore unable to be accorded much weight.
On the basis of the above, I am unable to find the documentation provided in response to the invitation to comment sufficiently strong to refute the non-genuine nature of the tax receipt.
The Respondent submitted that the delegate’s reference in this aspect of her reasoning to the notarial certificate was a reference to the document provided at the same time as the “Certification” and hence that the reference to “documentation provided in response to the invitation to comment” could only be considered to be a reference to both the Certification and the notarial certificate.
It was contended that the delegate was clearly aware of the issue concerning the authenticity of the tax payment receipt; that an invitation to comment had been issued; that the Certification and notarial certificate had been provided in response to the invitation; and that the delegate had specifically referred to the Certification in its reasons. The Respondent submitted that it was not necessary for the delegate to go further by making an express finding as to the genuineness of the Certification and that it was open to her to simply give the document no weight (or little weight) (see Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33] and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [49]).
In oral submissions counsel for the Minister submitted that the Applicant had placed far too much weight on what Gageler ACJ had found in considering the application for an extension of time and that his Honour’s findings provided no support beyond the proposition that the Applicant’s contentions were arguable.
It was also submitted that it had not been established that the Certification was a “critical document” in relation to the delegate’s inquiry such as was considered by Robertson J in SZRKT. In this context it was pointed out that the question for the delegate was not whether the original tax payment receipt was in fact a bogus document, but rather whether there was “no evidence” that the Applicant had given a bogus document (that is, a document the Minister reasonably suspected purported to have been, but was not, issued in respect of Chen Sixian).
The Respondent submitted that it was not obvious that further analysis of the Certification would address the issue before the delegate, as whatever the result of such analysis there would still be some evidence before the delegate that it was a bogus document (the verification report).
It was acknowledged that if a visa applicant did not satisfy a criterion for a visa, in the absence of an applicable exception the delegate was under an obligation under s.66(2)(c) of the Act to give written reasons why the criterion was not satisfied in the notification of the decision to refuse the application for a visa (and see s.65). However it was pointed out that the delegate’s obligations under s.66 of the Act differed from the obligations of the Administrative Appeals Tribunal such as under s.430 of the Act. The obligation on the delegate was said to be far less onerous because, for example, there was no statutory obligation to set out findings on any material questions of fact or to refer to the evidence or other material on which the findings of fact were based.
It was submitted that this difference in legislative obligation was important, because it informed how the court would construe the delegate’s reasons.
In any event, it was submitted that even if the delegate had the same obligations to give written reasons as the Tribunal, a proper reading of the reasons revealed that the “Certification” was neither overlooked nor insufficiently considered.
In oral submissions, Mr Knowles, counsel for the Respondent, acknowledged that it was understood from the Applicant’s oral submissions that the focus was not simply on whether the Certification was “overlooked” in the sense considered in SZRKT, but rather on whether the delegate did not adequately analyse it. However it was submitted that in either case the inferences suggested by the Applicant ought not to be drawn, having regard to the express reference to the Certification in the delegate’s reasons.
Insofar as counsel for Mr Zhang had taken some time to go through Mr Kwong’s affidavit evidence (in particular as to the inquiries and various places that Mr Zhang and Mr Kwong had travelled to in order to obtain information as to the genuineness of the tax payment receipt), the Respondent pointed out that this material had not been before the delegate and suggested that “all” the delegate had to work with was the Certification which referred to the Seal of the Taxation Bureau and to the Pailou Taxation Office without explanation.
The Respondent also submitted that Mr Zhang’s letter to the delegate about the inquiries he was making as at 18 May 2015 was far from clear. It contained no reference to the Pailou Taxation Office (although it did refer to the merging of several districts into the Wanzhou District). The Respondent observed that this letter did not appear to place any importance on the fact that the Certification was issued by the Pailou Taxation Office or explain how it was that the taxation bureau that had been approached by the consular officer at the request of the delegate was not somehow aware of the practices of the branch office. I note that as Mr Zhang’s letter pre-dated the Certification, it is unsurprising that he did not refer to that document.
In any event, the Respondent submitted that Mr Zhang’s statement did not put the delegate on notice that there was some particular and special importance to be attributed to the fact that Certification was sealed by a particular office (the Pailou Taxation Office) within the wider taxation bureau.
This was said to be important insofar as ground 1 was put on the basis that there was insufficient engagement with or analysis of the Certification document. It was submitted that in the absence of such an explanation, it was not for the decision-maker to divine for herself the importance of a particular piece of evidence. The Respondent submitted that this was not a situation in which the nature of the evidence was obvious on its face in the sense considered in SZRKT.
The Respondent also submitted that while the delegate’s reference in her findings to the notarial certificate was not a reference to the Certification, it was not irrelevant, because the decision-maker was indicating that the fact that the documents had been notarised did not of itself establish their veracity.
Emphasis was placed on the delegate’s subsequent statement that she was unable to find “the documentation provided in response to the invitation to comment sufficiently strong to refute the non-genuine nature of the tax receipt”.It was submitted that if the delegate had been referring only to the notarial certificate in this statement, one would expect that she would have referred to that document or perhaps to “a document” in the singular, rather than to “the documentation”. The Respondent submitted that this should be read as encompassing the specific documents referred to earlier in the delegate’s reasons under the heading “Claims and Evidence” and that it demonstrated consideration of those documents.
It was also contended that in construing this part of the reasons of the delegate, the court should approach the issue according to the well-known advice provided by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, in the sense of not reading the decision with an eye keenly attuned to the perception of error.
The Respondent also pointed out (see Applicant WAEE at [46]) that there is no obligation on a decision-maker to refer to each and every piece of evidence in every case or to make a finding in respect of each and every piece of evidence. It was contended that while Applicant WAEE did not rule out the possibility that a failure to make a finding in respect of a piece of critical evidence of the type considered in SZRKT could amount to a jurisdictional error, the general position was that there was no unwavering obligation on a decision-maker to refer to each piece of evidence and to make a finding in relation to it.
In the present case it was submitted that the absence of a direct analysis of the Certification in the findings and reasons section of the decision did not give rise to an inference that it was not considered, particularly in light of the fact that what was in issue was only whether there was some evidence of a bogus document.
Consideration
First, insofar as reference was made to the observations of Gageler ACJ when this matter was before the High Court, I have borne in mind that his Honour was considering only whether to grant an extension of time under s.486A(2) of the Act in indicating that, without forming any view on whether an inference that the delegate had not considered the Certification should be drawn, it could not be concluded on the basis of the reasons for decision alone that such an inference was not open.
I note that as set out at [46] above, Gageler ACJ also observed that it might be thought to be of some significance that the “reasoning” of the delegate referred specifically to the notarial certificate and not to the Certification and also referred to the verification check conducted with the Chongqing City, Wanzhou District, Local Taxation Bureau without making any reference to the Certification having been issued by the Pailou Taxation Office. I consider these omissions to be of some significance.
In essence, the Applicant’s ultimate submission was that the delegate’s reasons revealed a constructive failure to exercise jurisdiction. It was acknowledged that the delegate had referred to provision of the Certification as supporting the submission the tax payment receipt was not a bogus document in describing the claims and evidence. However, the Applicant contended that the delegate had failed to consider or to actively engage with the Certification and the evidence in that respect in reaching her conclusions that she was unable to find the documentation provided in response to the invitation to comment sufficiently strong to refute the non-genuine nature of the tax receipt and that “as such” there was evidence that Mr Zhang had given a bogus document.
Insofar as it was initially asserted that the failure was of the nature considered in SZRKT, Robertson J observed in SZRKT at [112] (albeit in relation to the Administrative Appeals Tribunal):
As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the [decision-maker] is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the [decision-maker’s] reasons I do not agree.
Further, the Full Court of the Federal Court stated in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [34]:
…where a particular matter, or particular evidence, is not referred to in the [decision-maker’s] reasons, the findings and evidence that the [decision-maker] has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].
This is not a case in which there was no reference at all to the Certification in the delegate’s reasons, so that the case is not on all fours with the circumstances considered in SZRKT as discussed in SZSRS at [34]. However the Applicant clarified that in the alternative it was submitted that the delegate’s mere advertence to the Certification and failure to analyse it in her findings and reasons, whether expressed as a failure to give “proper, genuine and realistic” consideration or otherwise, amounted to a failure to perform the delegate’s statutory task in the manner considered in MZYTS.
The Respondent did not dispute that such a principle could apply to a decision of a delegate. Insofar as the Respondent pointed to the distinction between the delegate’s limited obligation in giving reasons under ss.65 and 66 of the Act compared to that of the Tribunal (see e.g. ss.368 or 430), the delegate gave reasons why the criterion in cl.188.213 in Schedule 2 to the Regulations was not satisfied which are amenable to consideration for the purposes of determining whether the delegate carried out her statutory task in considering whether the Applicant satisfied a criterion for the visa for which he applied. Even though the Minister’s statutory obligation under s.66 in relation to written reasons is more limited than that of the Tribunal, the written reasons of a delegate of the Minister may be taken to be a statement of those matters considered and taken into account. It may be inferred in an appropriate case that if something is not mentioned or is merely adverted to, there has been no “active intellectual process” of engagement with the content of such a matter (see WZAQU v Minister for Immigration and Citizenship [2013] FCA 327; (2013) 233 FCR 534 per Flick J at [12]).
This is not a case in which it can be inferred that the Certification was not material to the decision and that it was for this reason that it was not (and did have to be) addressed specifically in the course of the findings and reasons. The Certification was cogent and centrally relevant evidence. It was produced in response to and addressed the delegate’s concern about the result of a verification check conducted with the main taxation bureau by a consular official. It contradicted that evidence and was potentially corroborative of the Applicant’s claims that the tax payment receipt was not a bogus document. It related to the document that the decision-maker relied on to find that there was evidence the Applicant had given a bogus document and that hence he did not meet the criteria for the visa for which he had applied.
While I accept that the reference to “the documentation” in the delegate’s findings and reasons included the Certification, it was given no weight (or little weight) as part of the “documentation” purely because of the existence of the verification report and the fact that the office that issued the notarial certificate could not authenticate taxation matters (which, I note, it did not purport to do). Yet there was no consideration of the Certification as evidence of the genuineness of the tax payment receipt said to come from the local taxation office of Chen Sixian’s previous household office. While the delegate listed the Certification in the claims and evidence, she failed to evaluate it in the context of her findings and reasons.
This was so, despite the fact that there was material before the delegate that the Certification was from a particular local taxation office where Mr Zhang’s grandfather had his household registration (not the first taxation office Mr Zhang contacted in Wanzhou District). While not expressed with the clarity of Mr Kwong’s later evidence, there was also evidence from Mr Zhang that the hard copy records had to be checked and the original tax payment receipt sighted by the relevant taxation office before supporting evidence from the taxation authorities confirming the validity of the tax payment receipt could be provided. His agent advised the delegate that the statement (the Certification) was from the taxation office of Chen Sixian’s previous household area which had completed an investigation. The agent also offered to ask the local taxation office to send the original documents direct to the Department. The document itself bore the seal of the Pailou Taxation Office.
As the Applicant submitted, the Certification was centrally relevant given that the only basis for the visa refusal was the delegate’s lack of satisfaction that he satisfied PIC 4020(1) in Schedule 4 to the Regulations and hence that he did not meet the criterion in cl.188.213 in Schedule 2 to the Regulations.
I do not accept the Respondent’s submission that there would still be some evidence that the tax payment receipt was a bogus document, even if the delegate accepted the contents of the Certification, because of the existence of the verification report. If the delegate accepted the Certification as evidence of the tax payment receipt, the evidence in the verification report that was apparently from the main Wanzhou District Local Taxation Bureau, based on inspection of a copy (not the original) of the tax payment receipt, which related only to “their” office, and which did not suggest that hard copy tax records for 2005 had been inspected, could have fallen away on the basis that it was not from the relevant part of the Chinese taxation authority.
Such matters are for the decision-maker, but in the particular circumstances of this case, the mere fact of the adverse verification check does not mean that the decision-maker could not subsequently be satisfied that the Applicant met PIC 4020(1). If the delegate engaged with the Certification as well as with the verification and then did not reasonably suspect that the tax payment receipt was a bogus document (that is, that it was not issued in respect of Chen Sixian or that it was counterfeit) there would be no evidence that the Applicant had given a bogus document.
I am satisfied that jurisdictional error has been established. As to categorisation of the error, as the Applicant acknowledged, in Islam v Cash Flick J noted at [14] that while the formulation of a “proper, genuine and realistic” consideration “has been the focus of judicial expressions of caution… it nevertheless remains a useful touchstone to ensure that consideration given to a particular matter is such consideration as is required by law”.
The task of a decision-maker has been described in various ways and it may be that to use the language of “consideration” detracts attention from this issue. In Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 Black CJ suggested at [39] that “Consideration of a document such as a representation or a submission…involves an active intellectual process directed at that representation or submission” (and see WZAQU at [12]).
However in this case, as in MZYTS, the statutory task in issue differed from that in Tickner v Chapman, which involved circumstances where the verb “consider” appeared in the statutory obligation itself, such that it was necessary for the Court to consider what Parliament meant when it used that verb in describing a ministerial task (MZYTS at [72]).
The statutory task in this instance is at a broader level and I have borne in mind that the question of whether the delegate’s state of satisfaction about whether the Applicant satisfied the visa criterion in issue was lawfully formed “will not necessarily be answered by expansive definitions of what the word “consider” means” (MZYTS at [72]).
The delegate’s task, while not identical to that of the Tribunal considered in MZYTS, required her to evaluate, assess and make pertinent findings in relation to the material put forward by Mr Zhang in response to the adverse information put to him about the tax payment receipt, as well as any contradictory information in relation to the criterion in issue (see MZYTS at [38]). The Certification was potentially corroborative of and hence critical to the Applicant’s claim that he satisfied PIC 4020(1) and to the exercise of the delegate’s statutory task.
I have had regard to the need not to too readily conclude that “proper, genuine and realistic” consideration has not been given to a particular matter, lest the court stray into merits review (see the cases cited in Islam v Cash at [14]) and to the fact that the reasons of the delegate ought to be read as a whole by reference to all the material before the delegate and ought not to be construed with an eye too keenly attuned to the detection of legal error in the sense considered in Wu Shan Liang at 271-272. However in this case the delegate’s reasons are devoid of any meaningful engagement with the fact or contents of the Certification, notwithstanding that it was relevant evidence which was contrary to the verification report.
While it is not essential for a decision-maker to make findings about every item of evidence (see Applicant WAEE), as the Full Court of the Federal Court stated in MZYTS at [50]:
…In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given…
There was no real or active engagement with the Certification in the delegate’s findings and reasons, notwithstanding that, as indicated, the Certification, if accepted as genuine, was clearly of central relevance. The delegate’s reasons do not disclose any process of articulating the different effect of the Certification (compared to the verification) or give any meaningful indication as to why preference was given to the verification from another taxation office. Merely to state that “due weight” must be given to the verification did not suffice. The fact the delegate found that the office that provided the notarial certificate was not the responsible agency to authenticate taxation matters reinforces the conclusion that there was no weighing in the balance of the Certification (which did state that it emanated from a taxation entity).
While Mr Kwong’s detailed evidence was not before the delegate, Mr Zhang’s statement made it clear that he had received “clues” from the staff of the Taxation Bureau of Wanzhou Chongqing which sent him to another “related” taxation office in search of the hard copy of the 2005 tax payment receipt. He referred to the consequences of mergers and changes in relation to “local taxation offices”, and to the need to go to an office other than the main bureau. As further clarified in the agent’s email to the delegate of 19 May 2015, the documentation Mr Zhang eventually obtained (the Certification) came from the taxation office of Chen Sixian’s previous household area. On its face (and in contrast to the verification), the Certification came from a particular taxation office (the Pailou Taxation Office) as indicated by the seal, in circumstances where Mr Zhang had explained he had to travel to the office where any hard copy of his grandfather’s 2005 tax payment receipt would be stored.
However, it appears from the verification report that the consulate officer’s inquiry was made with the main taxation bureau, which, consistent with Mr Zhang’s statement, did not have a hard copy of Chen Sixian’s tax payment receipt.
In these circumstances, while it was for the delegate to determine the weight to be given to the tax payment receipt, in failing to consider or actively engage in an evaluation of the Certification issued by the Pailou Taxation Office where such evaluation was called for in assessing two pieces of “apparently pertinent, but contradictory, evidence” (MZYTS at [50]) the delegate failed to lawfully perform her statutory task.
In the particular circumstances of this case, the delegate’s mere advertence to the Certification in the list of claims and evidence (albeit that it was described as supporting the submission that the tax payment receipt was not bogus) and the conclusion in relation to the documentation, without any analysis in the reasoning of the Certification, or even of the explanation from Mr Zhang and his agent as to where it came from, was not sufficient.
I do not accept that the delegate’s express consideration of the verification check and the notarial certificate in relation to the accuracy of the translation of the tax payment receipt encompassed a sufficient consideration of the Certification. It was for the delegate to consider and weigh the evidence, but in this case she did not evaluate or deal with the merits of the evidence consisting of the Certification which was potentially corroborative of the genuineness of the tax payment receipt. It was pertinent evidence which contradicted the verification which appeared to emanate from a different office and to have been provided without reference to hard copy records. In these circumstances, the statement that the outcome of the verification was “unequivocal” did not adequately address the issues raised by the Certification from the Pailou Taxation Office as to the genuineness of the tax payment receipt.
The view the delegate took of the verification (that it was unequivocal) was not reached after consideration of the Certification. The notarial certificate cited did not address the Certification or the genuineness of the tax payment receipt. The rejection of the “documentation” as not sufficiently strong was insufficient in the circumstances of this case, where there was some explanation in the evidence before the delegate as to why the verification report may not in fact be “unequivocal” (including on the face of the Certification).
I have borne in mind that a decision-maker is not required to identify and discuss every item of evidence (see Applicant WAEE). In this case it was necessary, in order to address Mr Zhang’s claim that the tax payment receipt was genuine (and related to the source of the funds which he already had on deposit with the Commonwealth Bank in Sydney), for the delegate to consider the potential significance of the Certification to the issue of whether there was in fact evidence that Mr Zhang had given a bogus document, or whether the Certification refuted the verification evidence from a different taxation office in relation to the genuineness of his grandfather’s tax payment receipt.
In conclusion, while I accept that the delegate’s reference to “the documentation provided in response to the invitation for comment” encompassed the Certification, I am not satisfied that the delegate in fact gave proper, genuine or realistic consideration to the Certification (and to the claims of Mr Zhang and his agent about its source and relevance). This was contradictory evidence of the nature referred to in MZYTS at [50]. The delegate did not actively engage with this evidence or assess it in any real or active way in the sense considered in MZYTS at [36]-[39] in expressing a preference for the verification report.
In these particular circumstances I am satisfied that ground 1 is made out. The delegate failed to lawfully form the state of satisfaction as to whether the Applicant satisfied a visa criterion. The delegate’s task required under the Act “miscarried” in the sense discussed in MZYTS.
Ground 2
Ground 2 is as follows:
2. The delegate failed to conduct a relevant inquiry into the authenticity of a Tax Payment Certificate provided by the plaintiff to the delegate.
Particulars
The plaintiff provided the delegate with a Certification letter dated 19 May 2015 which included a telephone number that the delegate ought, in all the circumstances, to have used to contact the author of the letter to check the authenticity of the Tax Payment Certificate previously provided by the plaintiff to the delegate.
In written submissions the Applicant contended that the delegate ought to have made what was described as “a simple telephone call” to the number for the Pailou Taxation Office provided on the Certification in order to check the authenticity of the tax payment receipt said to relate to his grandfather. It was submitted that in the circumstances of this case, the delegate’s failure to conduct a relevant inquiry amounted to a constructive failure to exercise jurisdiction.
The Applicant acknowledged there was no general duty on the decision-maker to undertake an inquiry, as well as to have regard to information provided by an applicant (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43]). However it was submitted that this did not mean that the decision-maker was always excused from making an inquiry. The Applicant pointed to Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 in which the High Court, while confirming that there was no general duty to inquire (at [1]), and doubting that a failure to inquire could amount to unreasonableness (at [20]-[23]) or a breach of the requirements of procedural fairness (at [24]), nevertheless considered that in some circumstances a failure by the Tribunal to inquire may amount to a failure to comply with its broader duty to undertake a review of the primary decision. As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated at [25]:
…It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review…
While the delegate was not conducting a review, the Applicant contended that this principle was also applicable to the delegate conducting her statutory task.
It was noted that the delegate had seen fit to check the authenticity of the tax payment receipt by contacting the Chongqing City, Wanzhou District, Local Taxation Bureau and submitted that, in the circumstances of this case, a telephone call to the number provided on an apparently official document from the Pailou Taxation Office could have resolved the delegate’s doubts about the Certification.
The Applicant submitted that it was relevant to have regard to the evidence before the delegate in considering whether there was a critical fact, the existence of which was easily ascertained, including the letter from Mr Zhang and the information from his agent discussed above, as well as the verification report.
Mr Zhang submitted that it could not be said that the delegate might not have reached a different decision in relation to the genuineness of the tax payment receipt if the Certification was accepted as authentic. In these circumstances it was contended that the delegate ought to have inquired of the Pailou Taxation Office to follow up what was stated in the Certification.
The Applicant pointed out that the delegate had initially checked on the authenticity of the tax payment receipt by having a phone call made to the office from which the information about the Certification was thought to have originated and suggested that, given that the Certification from the Pailou Local Office had a telephone number on it, it would have been a simple matter to again check on the authenticity of an apparently official document under the seal of the Pailou Local Office to resolve any doubts about what was in the Certification.
The suggested inquiry was said to be “obvious” in circumstances where the delegate was put on notice by the information in the letter from Mr Zhang and the email from his migration agent that new information had come to hand to prove the authenticity of the tax payment receipt.
It was also said to be clear, having regard to the approach taken by Nettle J in Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22, that there was a fact that could be “easily ascertained”. In Wei Nettle J had taken a different approach to the majority (Gageler and Keane JJ) in relation to why there was a jurisdictional error in circumstances where a particular Australian university had failed to provide PRISMS (the departmental records) with accurate information and it was discovered that the PRISMS records were incorrect (and that, contrary to those records, the applicant was enrolled in his course at that University). Nettle J considered that in the particular circumstances of that case the delegate’s failure to make telephone inquiry of the University amounted to a constructive failure to exercise jurisdiction (at [51]).
Reliance was placed on the discussion by Nettle J of the principles in relation to a failure to inquire. His Honour referred to cases such as Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 169-170 and SZIAI before finding at [51]:
…Given the criticality of the fact that the [applicant] was enrolled at the University, the relative ease with which that fact could have been ascertained, the obviousness of the means of doing so – by picking up the telephone and requesting the University to check whether the [applicant’s] enrolment status as shown in PRISMS was in fact correct – and the clear link between the delegate’s failure to make that inquiry and the delegate’s determination to cancel the visa, I consider this to be a case in which the delegate’s failure amounted to a constructive failure to exercise jurisdiction and therefore a jurisdictional error.
The Applicant submitted that, similarly, a single telephone call would have answered the critical question in this case.
Insofar as the Respondent made the point that an inquiry had already been made of the original taxation office by the Department, the Applicant suggested that the obvious answer to this submission, was that that was an inquiry made with a different office, so that it was a different inquiry. Indeed, the fact of the making of the earlier telephone call to the Bureau was said to have made the making of a similar call to the Pailou Taxation Office all the more obvious.
It was noted that it was in light of such submissions to the High Court that Gageler ACJ had found that in this case there was a serious issue to be determined in relation to ground 2 and an issue which would likely be capable of illumination by further evidence.
Counsel for Mr Zhang acknowledged that there was no further evidence before the court in this respect, but nonetheless stressed that the Respondent’s argument in relation to the existence of the earlier inquiry had not been accepted by Gageler ACJ in the context of determining the application for an extension of time.
Insofar as the Respondent contended that the delegate ought not to be required to undertake an ongoing inquiry into the validity of a document, it was submitted that given that the delegate had written to Mr Zhang asking him to provide further information about the validity of the tax payment receipt (which would necessitate a second inquiry) to which Mr Zhang had responded by providing information which was verifiable, it would be “strange” if the delegate was not then required to follow up that response in a way that was easily ascertainable, given that any “ongoing” inquiry into the validity of the document had been initiated by the delegate.
The Respondent submitted that no jurisdictional error was established in the manner contended for in ground 2. It was acknowledged that SZIAI recognised that in some circumstances a failure to make an obvious inquiry about a critical fact, the existence of which was easily ascertained, could supply a sufficient link to the outcome of a review by the Tribunal to constitute a failure to review, but contended that this was not such a case.
The Respondent submitted, however, that the Applicant sought to place far too much weight on what Gageler ACJ had stated in relation to ground 2 in circumstances where his Honour had been addressing whether the case was arguable in a sense that would support the grant of an extension of time. It was pointed out that the highest Gageler ACJ went in respect of ground 2 was to say that there was a serious issue which could be illuminated by further evidence. It was observed that no further evidence had been filed by the Applicant relevant to ground 2.
The Respondent contended that in this case it was not clear on the material before the delegate that the suggested inquiry was “obvious” in circumstances where the Department had already made one inquiry as to the authenticity of the tax payment receipt by contacting the Chongqing Wanzhou District Local Taxation Board and where there was said to be nothing before the delegate to indicate that some special significance should be attributed to the fact that the Certification referred to the Pailou Taxation Office (which it now appears is a subregion within the Chongqing Wanzhou District Local Taxation Board). There was said to be no reason for the delegate on the evidence before her to appreciate that the subregional office might provide a different response to that already received.
The Respondent also submitted that it had not been established that the Certification was “critical” to the delegate’s decision. It was suggested that the implicit premise in the Applicant’s submission that the Certification or the suggested inquiry was somehow critical had to be seen in light of the wording of PIC 4020. It was reiterated that the question for the delegate in considering PIC 4020 was not whether the tax payment receipt was in fact a bogus document as such, but rather whether there was “no evidence” before the Minister that the Applicant had given or caused to be given to, relevantly, the Minister a bogus document, that is, a document the Minister reasonably suspected purported to have been, but was not, issued in respect of Chen Sixian (or was otherwise within the definition of bogus document).
This distinction was said to be of some importance in relation to ground 2 (as well as ground 1) on the basis that even if the result of an inquiry made by dialling the telephone number on the Certification had been an absolute assurance that the Certification was genuine, there would still be evidence before the Minister that the Applicant had given a bogus document having regard to the result of the original verification check.
The Respondent submitted further that the inquiry proposed was not necessarily in relation to a fact that could be “easily ascertained” in the manner described in SZIAI. It was acknowledged that the Certification contained a contact number, but pointed out that it did not identify any particular person to contact.
It was submitted that the delegate had already made an inquiry (through a consular officer) of the Chongqing Wanzhou District Local Taxation Board and that it was not known to what extent language difficulties, privacy restrictions and diplomatic protocols might make the suggested task a difficult or ineffective one. It was pointed out that on Mr Zhang’s evidence in his letter to the delegate of 18 May 2015, it appeared that obtaining the information from the relevant office was not in fact straightforward.
The Respondent acknowledged that, taken at its highest, it may be that such an inquiry would have assisted the Applicant and could have led to a potentially different outcome, but submitted that if that were the case, one might ask why the Applicant had not specifically asked the delegate to make such an inquiry.
The Respondent also relied on the remarks of Cowdroy J in SZQOS v Minister for Immigration and Citizenship [2012] FCA 982; (2012) 133 ALD 458 at [42] as follows:
…once a Tribunal received the appellant’s comments on the information including the supplementary letters that it received from the appellant it was not obliged to go on and inquire into the authenticity of the information in the appellant’s response. Given the Tribunal’s other findings concerning the appellant’s credibility, the information it received from the letter writers via DFAT and the indicia of forgery that it found in the various letters, any attempt to obtain further information would have been redundant. If it were required to check the validity of the new letters and request the appellant to comment upon them, the Tribunal would potentially be constrained to receive further letters from the appellant in support of the appellant’s claim of involvement in the JSD and the process would continue ad infinitum…
In SZQOS, Cowdroy J referred to the suggested obligation to inquire and pointed out (at [40]) that Heydon J had remarked in SZIAI at [52] that:
The question of whether the Tribunal should have made further inquiries must be assessed bearing in mind that it was for the [visa applicant] to demonstrate that his claims were genuine; it was not for the Tribunal to try to achieve a demonstration that he had failed to achieve…
It was submitted for the Respondent that such remarks applied with equal force in the circumstances of this case, particularly given that there was no request that the delegate make the inquiry and it was not an obvious one.
It was submitted that the delegate was not required to undertake an ongoing exercise in inquiring into the authenticity of a document provided in response to an invitation to comment on the validity of documents previously provided (see also SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [53]).
Consideration
In considering the merits of this ground in the context of determining the application for an extension of time, Gageler ACJ referred to the Applicant’s reliance on the observations in SZIAI at [25] to the effect that the then Refugee Review Tribunal might in some circumstances fail to discharge its statutory duty to conduct a review where it had failed to make an obvious inquiry about a critical fact the existence of which could be easily ascertained. Relevantly, as his Honour noted, the Minister does not dispute that a similar failure to inquire on the part of the Minister or a delegate might arguably amount to a failure to discharge the duty to determine a visa application imposed by s.65 of the Act.
Before the High Court, and in this court, the Respondent submitted that making a further telephone call to an unspecified person on a telephone number apparently for the Pailou Taxation Office, after having already obtained from the Chongqing City, Wanzhou District, Local Taxation Bureau what was regarded as an “unequivocal” confirmation that the tax receipt could not be genuine, could not be characterised as an “obvious inquiry”. It is the case that Gageler ACJ observed that counsel for Mr Zhang had submitted (as he continues to submit) that the making of the earlier telephone call to the Bureau made the making of a similar call to the Pailou Taxation Office all the more obvious. However, while his Honour was of the view there was a serious issue to be determined, it was suggested that this “would likely be capable of illumination by further evidence”.
However, no further evidence for the Applicant was filed after the matter was remitted to this court. The Respondent filed a Courtbook and both parties filed written submissions and made oral submissions. The issue in ground 2 has not been “illuminated” by further evidence.
It is not in dispute that there is no general obligation on a decision-maker to initiate inquiries or to make out an applicant’s case. In SZIAI the High Court did not explore the particular circumstances in which a failure to inquire would constitute a jurisdictional error. After observing that the proposition that such a failure may demonstrate legal unreasonableness had not been the subject of full consideration by the High Court, as set out above their Honours observed at [25]:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case…
(footnote omitted)
It was not disputed that in the context of a decision by a delegate, a failure to inquire may “supply a sufficient link to the outcome” to constitute a failure by the delegate to carry out the statutory obligation under s.65 of this Act. However the particular suggested inquiry must first be shown to be an “obvious inquiry about a critical fact, the existence of which is easily ascertained”.
As discussed in relation to ground 1, the delegate should have given consideration to the Certification provided in response to the invitation to comment in circumstances where there was evidence that suggested that Mr Zhang had had to make inquiries at a taxation office other than the main bureau in order to locate the hard copy of the tax receipt and there was some evidence before the delegate to indicate the significance that should be attributed to the reference to a particular taxation office that was apparently not the main taxation office. However ground 2 raises a separate issue. There was no contact name given. The Applicant did not ask the delegate to call any person or office. While not conclusive, there was no suggestion that the tax payment receipt or the Certification could (or should) be verified by a telephone call to the contact number on the Certification.
As discussed above in relation to ground 1, I do not accept the Respondent’s contention that there was no “critical” fact because whatever the result of inquiries (or analysis of the Certification) there would remain some evidence of a bogus document in the verification report.
However the difficulty that faces the Applicant in reliance on this ground is that there was nothing before the delegate to indicate that a telephone inquiry to a telephone number not obviously amenable to ready verification as in fact the telephone number of the relevant taxation office (in contrast to the situation considered by Nettle J in Wei) could have yielded a useful result (in the sense of confirming the existence of a critical fact the existence of which was easily ascertained). It cannot be said that such an inquiry was an obvious inquiry which could easily establish the genuineness of the Certification.
While Mr Kwong’s affidavit now provides some evidence to indicate what information might have been elicited if the delegate had undertaken some form of inquiry of a source that could be easily confirmed (such as the inquiry to the particular Australian University referred to in the reasons of Nettle J in Wei), the inquiry suggested in this case, to a telephone number on a document could not, in itself, have established the authenticity of the document. As stated in SZIAI at [26]:
…The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves…
Similarly, if whoever answered the telephone (if the number provided on the Certification had been dialled), had said that the Certification was true, that would go no further than what it said on its face. On the other hand, if the person who answered the telephone had said that the Certification was not genuine or contained false statements, that could only undermine the Applicant’s case. In these circumstances, it is not apparent that such an inquiry was an “obvious” inquiry about a “critical” fact the existence of which was “easily ascertained”. Some other, more extensive, inquiry may well have elicited such a meaningful response, but there is no suggestion that the delegate was under an obligation to make some other inquiry.
In these circumstances it is unnecessary to consider the application of the remarks in SZQOS to the circumstances of this case.
Ground 2 is not made out. However as Ground 1 is established the matter should be remitted for reconsideration according to law.
I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 8 February 2019
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