Zhang v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1706

FEDERAL COURT OF AUSTRALIA

Zhang v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1706

MIGRATION – visa applications – where person intended visa application to be made and gave documents to intermediary – where completion of form required – where third person filled in and signed form – whether form filled in on person’s behalf – whether valid application

Acts Interpretation Act 1901 (Cth) s 25C
Migration Act 1958 (Cth) ss 46, 47, 48, 98
Migration Regulations 1994 (Cth) reg 2.07

Minister for Immigration v Li (2000) 103 FCR 486 applied
Sevim v MIMIA (2001) 114 FCR 126, applied
Project Blue Sky v ABA (1998) 194 CLR 355, applied

RUIE ZHANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND MIGRATION REVIEW TRIBUNAL

NSD 1456 OF 2005

EDMONDS J
25 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1456 OF 2005

BETWEEN:

RUIE ZHANG
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EDMONDS J

DATE OF ORDER:

25 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Leave to file the amended application be refused.

2.The application be dismissed.

3.The applicant pay the first respondent’s costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1456 OF 2005

BETWEEN:

RUIE ZHANG
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	EDMONDS J
DATE:	25 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

EDMONDS J:

INTRODUCTION

1. This is an application made under s 39B of the Judiciary Act 1903 (Cth) seeking prerogative relief against the first and second respondents; declaratory relief as to the invalidity/validity of certain visa applications; and declaratory relief that the applicant is not subject to s 48 of the Migration Act 1958 (Cth) (‘the Act’).

   BACKGROUND

2. (1)       The applicant, Ms Zhang, arrived in Australia from China on 25 November 2000, on a Short Stay (subclass 456) Temporary Business visa.

   (2)On or about 7 December 2000 an application for a Long Stay (subclass 457) Temporary Business visa (‘Business Visa’) was lodged in Ms Zhang’s name although she denies that it bears her signature.  The Business Visa application showed one Jack Meng as Ms Zhang’s migration agent and a form of his appointment as such, purportedly signed by Ms Zhang, accompanied that application.

   (3)On 29 June 2001 a delegate of the first respondent refused the Business Visa application. This refusal, if valid, meant that Ms Zhang could not lodge a valid application for most other sub-classes of visa whilst she remained in Australia (s 48 of the Act).

   (4)On 1 August 2001 Ms Zhang lodged an application for a partner visa on the basis of her marriage to Mr Wiener, an Australian citizen (‘Spouse Visa’). On or around 17 August 2001 a delegate of the first respondent wrote to Ms Zhang advising her that her application for a Spouse Visa was invalid because she had been refused an earlier visa (pursuant to s 48).

   (5)On 13 September 2001 Ms Zhang and Mr Wiener lodged an application for review of the decision to reject the validity of her application for the Spouse Visa.  On 17 September 2001 the Migration Review Tribunal (‘the MRT’) advised them that it did not have jurisdiction to review a decision to reject an application as invalid (as opposed to a decision to refuse to grant a visa).

   (6)On 27 August 2001 Ms Zhang filed an application for review with the MRT of the delegate’s decision to refuse her the Business Visa.  On 18 September 2001 the MRT advised Ms Zhang’s husband that the application for review was out of time.

   (7)Following intervention by Mr Wiener’s local Member of Parliament and the Minister, on 4 March 2004 the original decision to refuse the Business Visa was re-notified to Ms Zhang thereby enabling her to seek review of that decision if she so chose.

   (8)On or about 11 March 2004 Ms Zhang again sought review in the MRT of the decision to refuse the Business Visa.

   (9)Before the MRT, Ms Zhang argued that her application for the Business Visa was invalid because the signature was forged and it was lodged in the following circumstances:

   ·When Ms Zhang arrived in Australia she could not read or speak English.

   ·Ms Zhang had been unable to communicate with a business contact in Australia and so she contacted the sister of a friend.  The sister, called Linda, came to the airport and picked her up.

   ·Linda informed Ms Zhang that she would find an agent/lawyer to apply for a visa for Ms Zhang to stay in Australia for a year and, for this purpose, asked her for $2,800.  To this end, Ms Zhang gave Linda her passport, a passport photo, documents concerning her work/business, but at this stage not the money.

   ·After a month or so Linda showed Ms Zhang her passport and a computer printout in English attached to the passport which Linda said was the visa for one year.  Ms Zhang then gave Linda $2,800 which Linda said was the cost of the visa application.  This happened in December 2000 or early 2001.

   ·Before the MRT, Ms Zhang agreed that her understanding had been that Linda was going to lodge an application on her behalf, or would arrange for an application to be lodged on her behalf.  Moreover, following the return of her passport, her understanding was that the application had been successful and that she then held a business visa for one year.

   ·After Ms Zhang married on 22 May 2001, her husband told her that she did not have a one year visa.  Ms Zhang and her husband repeatedly asked Linda for a receipt for the $2,800 paid to her, but this was not forthcoming.  Finally, in about May 2001, Linda finally told Ms Zhang and her husband that she had given the money to her lawyer/agent to make the application and she gave them his name and address.

   ·On 7 June 2001, Ms Zhang and her husband went to see Linda’s lawyer/agent, Jack Meng.  According to Ms Zhang, Mr Meng informed her that a one year business visa had been granted.  If he did so, then this was a lie because the Business Visa application was still under consideration and was not refused until later in the month and notified by letter dated 29 June 2001.  What seems to be common ground is that, at the meeting Ms Zhang and her husband indicated that Ms Zhang would lodge a Spouse Visa application, but they declined Mr Meng’s offer of assistance in that regard and indicated that they would process it themselves.  They had no further contact with Jack Meng after their meeting with him on 7 June 2001.

   ·It was only when Ms Zhang’s husband contacted the Department, sometime after the Department had sent a letter to Ms Zhang care of Jack Meng advising that her Business Visa application had been refused, that Ms Zhang and her husband became aware of this fact.

   ·It seems quite clear that Ms Zhang had not signed the Business Visa application or any related documents, including the Form 956 (appointment of an agent) and the MRT so found.

   (10)The MRT considered that the application was valid and in doing so made the following findings:

   ‘18.     …the visa applicant agreed at the hearing that her understanding had been that a “friend” would lodge a visa application, or organise for a visa application to be lodged, which would allow her to stay in Australia for one year.  It is reasonable to consider that the visa applicant was aware before or soon after she arrived that she did not have permission to remain in Australia for one year.  Also, the visa applicant’s evidence at the hearing was that although she was unable to contact the proposed employer in Australia or the business overseas, she nonetheless sought to have an application for a business visa lodged on her behalf.

   19.       The visa applicant’s evidence is that when the friend showed her a purported visa in her passport, the visa applicant then paid the friend $2,800 and the visa applicant believed she then had a valid one year visa.  The visa applicant’s evidence at the hearing confirms that even though she could not contact the business in Australia, she had an intention for a business visa application to be lodged concerning her, and that she was prepared to pay for the application after the visa was granted.  The Tribunal accepts that the visa applicant did not sign the visa application and related documents.  Nonetheless, regardless of whether the signature on the visa application and other documents was not that of the visa applicant, the visa applicant sought to have a visa application lodged.  The visa applicant provided: some business documents (although she was unsure what documents); a passport sized photo, and her passport, to a friend for the purposes of a visa application.  At the hearing the visa applicant stated she had not really read the documents she gave her friend.  The visa applicant was only surprised to subsequently discover that the business visa had not been granted: the visa applicant was not surprised that the application had been lodged, as that was her intention and understanding.

   20.      The Tribunal finds that the visa applicant gave her agreement to another person for a visa application to be lodged on her behalf.  Whilst the visa applicant did not sign the actual application, she believed that her friend was organising the matter and doing all of the things that had to be done in order for the visa applicant to stay in Australia.  The visa applicant was unconcerned with the legalities of the visa application: her concern was getting a one year visa.  The visa applicant facilitated the application by giving the friend her passport, a passport photo and may have provided further documents.  The visa applicant stated at the hearing that she believed she was coming to Australia to work in a business and so she reasonably had some documents concerning the business in Australia.  The visa applicant believed she had been granted a visa when she paid her friend $2,800.’

   (11)The MRT then proceeded to consider whether she met the criteria for the grant of the visa.  It found that she did not.  Accordingly, the MRT affirmed the decision under review.

   The Application and the Amended Application

3. At the commencement of the hearing, counsel for Ms Zhang sought leave to file an amended application seeking similar but not identical prerogative relief; additional prerogative relief; and abandoning all declaratory relief.  The amended application seeks to agitate grounds, not raised in the application, challenging the MRT’s decision on the validity issue on the basis that there was an insufficiency of evidence before the MRT to decide that issue.  The amendment is opposed by the first respondent on the basis that it misconceives the function of the MRT in considering whether there was a valid application for the Business Visa.  I deferred a decision on the leave application until I had heard argument from both parties.

4. Ms Zhang’s underlying complaint goes to whether or not she should be held legally responsible for the Business Visa application lodged in her name in December 2000. It appears to be common ground that, if that was an application made by her or on her behalf, then, by operation of s 48 of the Act, she was prevented from lodging a valid application for a Spouse Visa.

5. Section 46 of the Act sets out the requirements for an application for a visa to be valid. Amongst other matters, the visa application must satisfy the ‘criteria and requirements prescribed under this section’ (subs 46(1)(b)). Subsection 47(1) imposes an obligation on the Minister to ‘consider a valid application for a visa’ and subs 47(3) prohibits the Minister from considering ‘an application that is not a valid application’. Sections 48 and 48A impose restrictions on a person who has been refused a visa in the migration zone from making another application for such a visa. Section 65 provides that the Minister (or his or her delegate) must, after ‘considering a valid application for a visa’, either grant or refuse the grant of the visa.

6. The MRT is conferred with a power and an obligation to review ‘MRT reviewable decisions’ (s 348).  ‘MRT reviewable decisions’ is  defined by s 338.  Subject to various exceptions, it is generally concerned with decisions to refuse to grant a non-citizen a visa other than a protection visa.  A determination that an application is not valid is not an ‘MRT reviewable decision’.

7. It follows that the existence of a ‘valid application for a visa’ is a jurisdictional prerequisite to the exercise of the power of the Minister to consider and then refuse or grant a visa (Minister for Immigration v Li (2000) 103 FCR 486 at [59]). The MRT may consider whether an application for a visa is valid but that is only for the purpose of asking itself whether it has power to conduct the review on the merits: Sevim v MIMIA (2001) 114 FCR 126 at [62], [63] per Gray J). The Court can determine that issue for itself. It does not review the adequacy of or the reasons given by the delegate or the MRT for concluding that the application was either valid or not. This follows from the proposition that the existence of a valid application is an essential prerequisite to the exercise of the delegate and the MRT’s powers.

8. If Ms Zhang maintains her contention that she is not legally responsible for the Business Visa application then the relief she should seek is a declaration that it is an invalid application, a declaration that her Spouse Visa application was a valid one, an order quashing the MRT’s decision and an order requiring the Minister or her delegate to exercise their function under s 47 of the Act to consider the application for a Spouse Visa.

9. The present form of application under the Judiciary Act 1903 (Cth) filed on behalf of Ms Zhang seeks the appropriate relief. The amended application would confuse the position by seeking relief which assumes that the function of determining whether or not the initial application was a valid one was part of the merits review. For that reason, leave to file the amended application is refused.

   THE VALIDITY OF THE BUSINESS VISA APPLICATION

10. As at December 2000, subs 46(1)(b) of the Act specified that for an application for a visa to be valid it had to, inter alia, ‘satisfy the criteria and requirements prescribed under this section’.  As at December 2000 Regulation 2.07 of the Migration Regulations 1994 (Cth) provided:

    ‘(1)For the purposes of Sections 46 and 46 of the Act (dealing with applications for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:

    (a) the approved form (if any) to be completed by an applicant;

    (b) the visa application charge (if any) payable in relation to an application;

    (c)other matters relating to the application.

    …

    (3)An applicant must complete an approved form in accordance with any directions on it.

    …’

    (The Business Visa application form required Ms Zhang to complete the declaration section on page 10 of the form.)

11. At all material times s 25C of the Acts Interpretation Act 1901 (Cth) provided:

    ‘When an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient.’

12. Finally, as at December 2000, s 98 of the Act provided:

    ‘98 Completion of visa application

    A non-citizen who does not fill in her or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.’  (Emphasis added)

13. Subject to reading one finding in a particular way, counsel for Ms Zhang, when pressed, indicated, correctly in my view, that he did not have a problem with any of the findings of the MRT on the validity issue extracted at [2](10) supra.  His concern, and the focus of his argument, was that there was an insufficiency of evidence, particularly as to what transpired at the meeting between Ms Zhang and her husband and Jack Meng on 7 June 2001, to enable the validity issue to be determined.  I cannot agree. 

14. Having regard to the background outlined at [2] supra, in particular the circumstances outlined at [2](9) supra, I make the following findings relevant to the validity issue:

    (i)Ms Zhang intended that the Business Visa application be lodged on her behalf, either by Linda or someone she instructed.  This is manifested by her handing over to Linda her passport, a passport photo and business documents to facilitate the application.  It is also manifested by her subsequently paying Linda the sum of $2,800 ‘when she [Linda] told me everything was done and showed me the passport’.

    (ii)Ms Zhang understood that the Business Visa application was to be lodged on her behalf, had been lodged on her behalf and, albeit mistakenly, had been successful.  Again, her payment of $2,800 to Linda manifested that understanding.

    (iii)It was only when she became aware that the Business Visa had been refused and the consequence that had for her application for a Spouse Visa, namely, that, by virtue of s 48 of the Act, the application for a Spouse Visa was infected with invalidity, that she sought to disavow the validity of the Business Visa application.

15. Having regard to these findings, I have come to the following conclusions:

    (1)Ms Zhang authorised Linda, or a person instructed by Linda, to make the Business Visa application on Ms Zhang’s behalf.  Mr Meng fell within that latter category; he was instructed by Linda to make the Business Visa application on Ms Zhang’s behalf.

    (2)The fact that Ms Zhang did not sign the application form nor the Form 956, does not mitigate against the conclusion in (1); nor does the fact that someone, possibly Jack Meng, signed the application form and the Form 956 in Ms Zhang’s name and style of signature or, as it has been put on behalf of Ms Zhang, forged her signature to each document.

    (3)The Business Visa application form was, in consequence, filled in on Ms Zhang’s behalf and the deeming of s 98 of the Act is triggered.

    (4)Whatever came out of the meeting with Jack Meng, Ms Zhang did not withdraw the instructions given to him by Linda or otherwise instruct him to withdraw or abandon the Business Visa application.  This may have been because, according to Ms Zhang’s evidence before the MRT, she was told by Jack Meng that the Business Visa had been granted, although her husband did not corroborate this.  If Jack Meng did not say this at the meeting on 7 June 2001, then it can be more readily inferred that she ratified or adopted the application although such a conclusion is not critical to the conclusion in (3) above.

16. These anterior conclusions compel one to the ultimate conclusion that the Business Visa application was a valid application.  The fact that Ms Zhang did not know Jack Meng at the time the application was made and the fact that he was not a lawyer as she had been told do not stand in the way of that ultimate conclusion; in other words, they do not result in its invalidity:  See Project Blue Sky v ABA [1998] 194 CLR 355 at 390 – 391, [93].

17. The application must be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:            25 November 2005

Counsel for the Applicant:	Mr L Karp
Solicitor for the Applicant:	Christopher Levingston & Associates.
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 November 2005
Date of Judgment:	25 November 2005