Zhang v Minister for Immigration and Border Protection
[2015] FCA 935
•26 August 2015
FEDERAL COURT OF AUSTRALIA
Zhang v Minister for Immigration and Border Protection [2015] FCA 935
Citation: Zhang v Minister for Immigration and Border Protection [2015] FCA 935 Appeal from: Zhang v Minister for Immigration & Anor [2014] FCCA 2752 Parties: YANGMIN ZHANG v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number(s): WAD 386 of 2014 Judge(s): SIOPIS J Date of judgment: 26 August 2015 Catchwords: MIGRATION – whether a visa applicant was complicit in the conduct in bad faith of a migration agent – whether the language used by the primary judge gave rise to an inference of apprehended bias. Legislation: Migration Regulations 1994 (Cth) Sch 2 cl 572.227
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(2)(b)Cases cited: SZLHP v Minister for Immigration and Citizenship (2008) 172 FCR 170
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577Date of hearing: 5 March 2015 Place: Perth Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 44 Counsel for the Appellant: The Appellant appeared in person. Counsel for the First Respondent: Mr P Hannan Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 386 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: YANGMIN ZHANG
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
26 AUGUST 2015
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 386 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: YANGMIN ZHANG
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE:
26 AUGUST 2015
PLACE:
PERTH
REASONS FOR JUDGMENT
The appellant is a Chinese national born in 1965. She first arrived in Perth on 2 August 2013 from Guangzhou, China, on a tourist visa. Since that date she has been living in a suburb of Perth, Western Australia, with an Australian resident whom she had met whilst he was on holiday in China.
In October 2013, the appellant wanted to prolong the period of her stay in Australia. The appellant was introduced by telephone to Mr Jiang Xue Guang who claimed to be a licenced migration agent operating in Sydney, New South Wales. Mr Jiang suggested to the appellant that there were two possible ways of achieving the appellant’s objective, namely, by applying for either a protection visa or a student visa. The appellant said to Mr Jiang that she did not want to apply for a protection visa and said that she would, therefore, apply for a student visa.
Mr Jiang had advised the appellant that if she applied for a student visa, there was no chance of success and the visa application would be refused by the Department of Immigration and Border Protection (the department). However, said Mr Jiang, the visa application process would take some time; and then when the visa application was refused, the appellant could apply to the Migration Review Tribunal (the Tribunal) for a review and this would take further time. In this way the appellant could prolong her stay in Australia.
The appellant never met Mr Jiang. I will deal in more detail with the relationship between Mr Jiang and the appellant later in these reasons.
On 11 October 2013, the appellant paid Mr Jiang the amount of $2,435 and on 29 October 2013, Mr Jiang lodged the appellant’s application for a student visa with the department. The application stated that the appellant would undertake a Certificate IV in business with the Australian College of Management and Technology from 13 January 2014 to 15 June 2014 and a Diploma of Business with the same institution from 14 July 2014 to 14 June 2015.
The appellant’s application also stated that the residential address and address for correspondence for the appellant was 35/14 Greek Street, Glebe, New South Wales. That was not the appellant’s residential address because at all times the appellant remained resident in Perth.
The delegate of the first respondent responded to the appellant’s student visa application by a letter dated 10 December 2013. The letter stated that when applying for a student visa in Australia, the appellant must either be the holder of a student visa or establish exceptional reasons for the grant of a student visa and invited the appellant to provide exceptional reasons.
Mr Jiang responded to the letter from the delegate of the first respondent by providing a statement purporting to be made by the appellant asserting that she was a believer in Falun Da Fa and for that reason it was impossible for her to return to China to apply for the student visa, and that she was scared that if she returned the Chinese government might capture her and mistreat her.
The delegate of the first respondent refused the appellant’s visa application on the basis that the delegate was not satisfied that the appellant had established exceptional reasons for the grant of the student visa. The appellant did not, therefore, meet cl 572.227 of Sch 2 to the Migration Regulations 1994 (Cth).
In December 2013, Mr Jiang advised the appellant that her student visa application had been refused. The appellant then instructed Mr Jiang to make an application for a review of the delegate’s decision to the Tribunal and paid Mr Jiang a further $1,600.
On 16 December 2013, Mr Jiang lodged a review application with the Tribunal.
In January 2014, Mr Jiang told the appellant that the Tribunal had sent a letter inviting her to attend a hearing before the Tribunal in Sydney on 25 February 2014. Mr Jiang emailed the Tribunal’s letter to the appellant. Mr Jiang advised the appellant that there would be no point in attending the hearing because her review application was bound to fail. The appellant did not attend the hearing. The Tribunal upheld the decision of the delegate of the first respondent.
APPLICATION FOR JUDICIAL REVIEW BEFORE THE FEDERAL CIRCUIT COURT OF AUSTRALIA
On 18 March 2014, the appellant brought an application for judicial review in the Federal Circuit Court.
The grounds of review identified in the application were that “there was an error of law on the part of the Tribunal” and “unreasonableness”.
However, the appellant filed affidavit evidence before the primary judge and the primary judge identified two further grounds of judicial review arising from the appellant’s submissions and evidence.
These additional judicial grounds of review, which the primary judge treated as ground 3 and ground 4 respectively, were:
(a)fraud on the Tribunal through the actions of Mr Jiang, and
(b)no valid application for review arising from the actions of Mr Jiang.
In light of the issues raised on the appeal, I intend to concentrate upon the third of the grounds of review considered by the primary judge, namely, the ground of fraud on the Tribunal.
It is necessary to refer in some detail to the appellant’s evidence which was before the primary judge. The appellant deposed that during her first conversation with Mr Jiang, Mr Jiang told her to forward her visa and a copy of her passport to him via MMS, which the appellant did. The appellant then deposed as follows:
5.I told him to look at my visa and I asked in what ways he could help me apply any onshore visa to allow me to continue my stay in Australia.
6.Mr Jiang said “You have two options. You can apply for a Refugee Visa or a Student Visa”.
7.I told him that I did not want to apply for a Refugee Visa because I am not a refugee and I then asked him based on my age, whether I am still eligible for a student visa.
8.Mr Jiang replied, “I can help you apply for a course in a business college because there is no age limitation.” He also said, “If you apply for this type of visa, it will be refused by the immigration department and there is no chance of success”.
9.I asked him what would happen if the visa application would not be successful.
10.Mr Jiang said, “Don’t worry, if the visa application is rejected by the immigration department I can help you to lodge an application with MRT which is the best way for me to prolong your stay in Australia”.
11.I asked him how long the whole process would take allowing me to stay in Australia legally. He replied, “One to one and a half year”.
12.I trusted Mr Jiang words because he was a licensed Migration Agent and thought that that was the best option I could take, so I agreed.
13.On 11 October 2013 I paid Mr Jiang $2435 by bank deposit.
14.I have never met Mr Jiang in person.
15.Before Mr Jiang lodged my application, I asked him if I had to go to Sydney to see him as I was in Perth.
16.The exact words I do not recall but I remember Mr Jiang telling me that I do not have to go to Sydney and he would get everything organised and lodge my student visa application.
17.I was unaware that my student visa application had been lodged as I have never seen the application form nor signed anything.
18.I did not receive any Confirmation of Enrolment from any schools.
19.During December his exact words I do not remember but I recall that Mr Jiang told me that my visa application had been refused and that was the way it was supposed to be.
20.I asked Mr Jiang what I could do next and how much that would cost me and he replied “Apply for a merits review at MRT and the cost is $1600”. I did another bank deposit to him.
21.During January Mr Jiang told me that the MRT had sent a letter dated 23 January 2014 (“MRT Letter”) asking me to attend a hearing on 25 February 2014 at MRT and I asked him why it was so quick as I remembered him telling me that it would take “One to one and a half years”.
22.By email Mr Jiang sent me the MRT Letter. I realised that the address 2/26 Chestnut Avenue Telopea NSW 2117 reflected on it was not mine.
23.His exact words I do not remember but I recall Mr Jiang told me that there might be an increase in the number of staff in the office hence the process had been sped up.
24.I asked Mr Jiang what would happen next and whether I had to attend the hearing since I was in Perth. His exact words I do not recall but I remember him telling me that I could go over if I wished but I would not be successful in the hearing in any case and suggested me to not waste my money to attend the hearing.
25.I asked him what I could do next and he replied “Apply for a Refugee Visa” which I rejected.
The appellant went on to depose that she was shocked when she found out that Mr Jiang had provided the delegate of the first respondent with a statement saying that she was a Falun Da Fa practitioner in China and would suffer harm on that account if she was to return to China. She said that she had specifically told Mr Jiang not to apply for refugee status for her.
The appellant’s new migration agent, Mr Nathan Wong, also gave affidavit evidence saying that he had contacted Mr Jiang and asked him for his migration agent registration number and that Mr Jiang had not been able to answer satisfactorily and that he could not find a registration for Mr Jiang as a migration agent on the Migration Agents Registration Authority website. Mr Wong said that on 26 February 2014 he had reported Mr Jiang to the department for “migration fraud”.
The primary judge considered the question of whether the conduct of Mr Jiang vis-à-vis the appellant, amounted to a fraud on the Tribunal.
The primary judge referred to the case of SZLHP v Minister for Immigration and Citizenship (2008) 172 FCR 170 (SZLHP).
In that case, the migration agent had advised the visa applicant to make false claims and those false claims were made by the applicant misrepresenting his identity, citizenship and personal history. The protection visa application was refused and the false claims were repeated in an application made by the migration agent to the Tribunal. The migration agent advised the visa applicant that the falsities of his claims would be revealed by his inability to speak Indonesian if he was to attend the hearing of the Tribunal. The visa applicant did not attend the Tribunal hearing and instead procured the issue of a medical certificate. The Tribunal found against the visa applicant in his absence.
The visa applicant sought to impugn the Tribunal’s decision on the basis of the fraud of the migration agent comprising a “fraud on the Tribunal”. The Full Court found that the visa applicant had been complicit in the deceptive conduct of the migration agent and, in those circumstances, was precluded from complaining about that conduct.
The primary judge applied SZLHP. The primary judge held that there was no evidence of manipulation of the appellant by Mr Jiang:
but rather a cynical bad faith exercise of the application and review process in which the applicant was aware and in which she was complicit. The outcome was precisely what the applicant was advised it would be by Mr Jiang. The applicant in this case is condemned by her own evidence which reveals her complicity in the course of conduct adopted by Mr Jiang, the sole purpose of which was to prolong the applicant’s stay in Australia in circumstances where she did not have any valid basis for the grant of her Student Visa Application.
The primary judge went on to find that this was not a case in which the Tribunal’s performance of its imperative statutory function would have had any different result had the application been lodged by a registered migration agent or had the appellant known that Mr Jiang was an unregistered migration agent.
The primary judge found that this was not a case where the visa applicant did not know of the fraud on the Tribunal, but that she had been complicit in the exercise of bad faith from the beginning. There, said the primary judge, was no fraudulent omission vis-à-vis the appellant.
The primary judge went on to find that, in any event, he would have withheld relief on the basis of the conduct in bad faith by the appellant.
THE APPEAL
The appellant relied upon two grounds of appeal. The first ground was “relevant and irrelevant considerations” and the second ground was “apprehended bias”.
It is necessary first to have regard to the “apprehended bias“ ground because were the appellant to succeed on that ground then the proceeding before the primary judge would be invalidated. (See, Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577.)
The apprehended bias ground of appeal
The appellant relied upon extensive written submissions which had been prepared by her new migration agent, Mr Wong. The appellant also made oral submissions which asserted that she had been the innocent victim of the fraudulent conduct of Mr Jiang but did not otherwise add to the content of the written submissions.
The appellant’s claim for apprehended bias did not make any complaint as to the process whereby the primary judge had conducted the judicial review proceeding. In other words, there is no contention that the conduct of the primary judge during the hearing gave rise to an apprehension of bias. Rather the appellant relied for the allegation of apprehended bias entirely upon the language which the primary judge used in his reasons for judgment. In the circumstances, the boundaries between a claim of apprehended bias, and actual bias, have become blurred.
The appellant complained that the primary judge had used “very harsh words”. The words of which the appellant complained were “ulterior purpose”, “attempt to rort the visa application process” and “was deliberately engaged…in bad faith”. The appellant also complained that the primary judge “overlooked” that the appellant did not have an intention to make any application in bad faith.
In my view, the appellant has failed to make out a case of apprehended bias. The test for apprehended bias in the judicial system is whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial mind to bear upon the issues to be determined. The test is objective.
The language which was used by the primary judge in his reasons for judgment is apt to describe the circumstances which the appellant’s own evidence revealed. It is plain from that evidence that the appellant was aware that Mr Jiang was making the student visa application on her behalf, not in the expectation that such a visa may be granted to her, but as part of a stratagem to abuse the visa application and review system for the purpose only of prolonging her stay in Australia. In referring to the appellant as being “complicit in an attempt to rort the visa application process”, the primary judge was perhaps using colloquial rather than judicial language. However, this was, nevertheless, an accurate description of the abuse of the visa application and review system in which the appellant, at the recommendation of Mr Jiang, willingly participated.
In my view, neither the use of that language, nor the other expressions used by the primary judge of which complaint was made, might induce in the mind of a fair-minded lay observer a reasonable apprehension that the primary judge might not bring, or might not have brought, an impartial mind to bear upon the issues to be determined.
There was also a complaint that the primary judge had, by reason of his bias, not considered whether the appellant had been the innocent victim of Mr Jiang’s fraud. This complaint overlaps with the complaint made in the second ground of appeal and I have dealt with that complaint when dealing with the second ground of appeal below.
Accordingly, the appellant’s ground of appeal based on apprehended bias is dismissed.
The relevant and irrelevant considerations ground of appeal
In the appellant’s written submissions, the appellant refers to the second ground of appeal as being brought pursuant to s 5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). In my view, the ground of appeal couched in that language plainly misconceives the function of a ground of appeal.
However, on an examination of the written submissions, it is apparent that this ground of appeal, in essence, takes issue with the factual finding made by the primary judge that the appellant had been a willing participant in Mr Jiang’s abusive stratagem of applying for the student visa and then applying for review of the refusal decision as a means of prolonging the appellant’s stay in Australia.
As I have already said, it was entirely open to the primary judge to come to the view to which he came. Indeed, on the evidence, there was no other reasonable view to which the primary judge could have come.
Accordingly, the second ground of appeal is dismissed.
The appeal is dismissed.
The appellant is to pay the first respondent’s costs.
I certify that the preceding forty‑four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate
Dated: 26 August 2015
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