Zhang v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 616
•30 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Zhang v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 616
File number(s): PEG 491 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 30 March 2021 Catchwords: MIGRATION – 457 visa – decision of the Administrative Appeals Tribunal – whether Tribunal made finding with no evidence – whether the Tribunal acted in bad faith – whether the Tribunal misapplied policy – no arguable error – application dismissed. Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5, Schedule 1
Federal Circuit Court Rules 2001 (Cth), r 44.12
Migration Act 1958 (Cth), ss 116, 140M, 476
Cases cited: King v Minister for Immigration & Border Protection [2014] FCA 766
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
MZABP v Minister for Immigration & Border Protection [2015] FCA 1391
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397
Number of paragraphs: 110 Date of hearing: 25 March 2021 Place: Perth Counsel for the Applicants: Mr N Wong Solicitor for the Applicants: HRL Legal Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 491 of 2019 BETWEEN: YUANMOU ZHANG
First Applicant
SHANHONG TAN
Second Applicant
QIAO ZHANG (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
30 MARCH 2021
THE COURT ORDERS THAT:
1.The application be dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL
INTRODUCTION
The applicants are citizens of China. The first applicant and the second applicant are husband and wife respectively. The third and fourth applicants are their children.
On 1 October 2014, the first applicant was granted a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa (the “visa”) (CB 1). The remaining applicants were identified as members of the first applicant’s family unit.
On 13 May 2016, the then Department of Immigration & Border Protection (the “Department”) sent the first applicant a notice of intention to consider cancellation (the “NOICC”) under s 116 of the Migration Act 1958 (Cth) (the “Act”) (CB 1-4). The NOICC stated that the first applicant’s nomination had been cancelled pursuant to s 140M of the Act and that this was a ground for cancelling his visa.
On 18 May 2016, the applicants’ migration lawyer responded to the Department with various supporting documents (CB 5-58).
On 29 June 2017, a delegate of the first respondent cancelled the first applicant’s visa (CB 59-70). As a result, the remaining applicants’ visas were also cancelled pursuant to s 140 of the Act.
On 4 July 2017, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 71-73).
The first applicant attended a hearing before the Tribunal on 10 December 2019 (CB 93-95).
On 12 December 2019, the Tribunal affirmed the decision to cancel the first applicant’s visa. The Tribunal also found that it had no jurisdiction in relation to the remaining applicants (CB 99-104).
On 18 December 2019, the applicants sought judicial review of the Tribunal’s decision in this Court. The application is brought pursuant to s 476 of the Act.
This matter has been listed for a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”). Accordingly, the applicants must show that there is a reasonably arguable case that the Tribunal fell into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is six pages long and spans 52 paragraphs.
The Tribunal began by explaining that it was reviewing a decision to cancel the first applicant’s visa and that the issue in the present case was whether a ground for cancellation was established (and whether the visa should be cancelled) (at [1]-[2]). The Tribunal also confirmed that the first applicant had appeared at a hearing before the Tribunal (at [5]).
The Tribunal found that it did not have jurisdiction to consider the cancellation of the second, third and fourth applicant’s visas as no decision had been made in relation to those visas (at [3]).
The Tribunal then explained:
7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
8. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(l)(iv) is relevant.
9. As outlined in the delegate’s decision, on 10 August 2015, a decision was made under section 140M(1)(a) of the Act to cancel the approval of the sponsor as a standard business sponsor. This nomination was approved on 29 August 2014 for the applicant’s sponsor, Global Fabricating Pty Ltd in respect of the applicant.
10. The Tribunal is satisfied that the prescribed ground for cancellation defined at Regulation 2.43(1)(l)(iv) exists because the sponsor has been barred or cancelled under section 140M of the Act. Therefore the ground for cancellation of the applicant’s visa is made out under section 116(1)(g).
11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
The Tribunal then explained that that there are no prescribed matters that it must take into account in considering whether to cancel the visa (at [12]). However, as the Tribunal noted, it was guided by the Department’s Procedure and Advice Manual (the “PAM3”) (at [13]-[14]).
The Tribunal noted that the purpose of the first applicant’s visa was to allow him to work for the sponsor in the nominated position (at [15]).
The Tribunal then explained that the sponsor’s application had been cancelled under s 140M of the Act (at [16]).
The Tribunal acknowledged that the first applicant had lodged a “fresh” application and had been nominated by a different business – but noted that that application had been refused (at [17]-[18]).
The Tribunal then explained that the first applicant had advised the Tribunal that he had supported himself by borrowing money and that the third applicant and the fourth applicant had returned to China and were supported financially by his brother (at [19]). The first applicant further stated that he was led to believe that he could secure permanent residency if he continued working (at [20]).
The Tribunal accepted that the first applicant’s employment had ceased through no fault of his own and that four years had lapsed since he had ceased employment (at [21]).
The Tribunal continued:
22. In the Tribunal’s view, the subclass 457 visa was a temporary visa the purpose of which is to enable Australian employers to fill skills shortages, and it is not a guaranteed pathway to permanent residence or long term temporary residence. The Tribunal does not consider the wish of the applicant to remain here for a longer time or maybe permanently, to be a compelling reason not to cancel the applicant’s subclass 457 visa, given that it is a temporary visa at best, and is linked to him being successfully sponsored and nominated for employment by an Australian employer.
23. The applicant said it would be very difficult to him to return to China. He said prior to moving to Australia he was working for a joint venture in China as a boilermaker. He said he is trained in that work and has over 20 years’ experience working in the industry. He said when the opportunity to move to Australia happened he borrowed $70,000 from friends in China. He said he would be very embarrassed to return to China as he feels he would have let his friends down.
24. Even though the Tribunal acknowledges the applicant may face some social difficulty in relocating back to China, the Tribunal does not consider this to be a compelling reason not to cancel the applicant’s subclass 457 visa.
The Tribunal determined that the purpose of the first applicant’s “travel to and stay in Australia” and “whether he had a compelling need to travel to or remain in Australia” weighed in favour of cancelling the visa (at [25]).
The Tribunal also noted that there was no evidence before it to suggest that the first applicant had not complied with the conditions of the visa. The Tribunal determined that this too weighed in favour of its discretion to not cancel the visa (at [26]).
The Tribunal then considered the degree of hardship that may be caused and determined as follows:
27. The applicant indicated he would suffer some hardship if he had to leave Australia and return to China.
28. The applicant conceded in his oral evidence that he was trained as a boilermaker and should be able to find work in China in his industry. He also stated that his two daughters live there with his mother. He said he doesn’t own a house in China, however, he would live with his mother. He said his wife is not working here and would return to China with him.
29. The applicant further said he took this opportunity to work in Australia because he thought he would be able to give his daughters a better education. The Tribunal notes that his elder daughter is now at university and his younger daughter is still in primary school
30. The applicant said he would suffer some emotional hardship due to being unable to repay his debts to his friends in China from whom he borrowed prior to moving to Australia. He said if he worked for ‘twenty years’ he would be unable to repay the money.
31. The Tribunal noted with the applicant that his oral evidence was that he owed approximately $50,000 to people here, money he’d borrowed to live whilst not working for the last 4 years. The applicant agreed he owed money ‘everywhere
32. The Tribunal acknowledges that the applicant may suffer some emotional hardship if he had to depart Australia but does not consider that the degree of hardship that he would face would be insurmountable and is not satisfied that the applicant would not be able to find any employment or business opportunities in China. The applicant agreed with this in his own oral evidence.
33. The Tribunal accepts the applicant’s younger daughter may benefit from an Australian education and that this may cause some hardship to her, the applicant and his wife.
34. Overall however, the Tribunal finds there is minimal hardship which may be caused by the cancellation of the visa.
The Tribunal determined that all of the above weighed in favour of cancelling the visa (at [35]).
The Tribunal accepted that the circumstances in which the ground for cancellation arose were outside of the first applicant’s control (at [36]). This was given some weight in favour of the visa not being cancelled (at [37]).
However, the Tribunal also noted that the first applicant was able to obtain employment (and prospective sponsorship) “quickly” but had been unable to secure any sponsorship successfully (despite having ample time to do so). Accordingly, the Tribunal afforded more weight to this when considering whether to cancel the visa (at [38]-[39]).
The Tribunal also gave some weight in favour of the visa not being cancelled in light of the fact that the first applicant cooperated with the Department (at [40]).
Further, the Tribunal was satisfied that the first applicant had obtained a bridging visa and that he would do so after the Tribunal’s decision until his departure (such that he would not become “unlawful”) (at [41]). The Tribunal also determined that the s 48 bar was an intended legislative consequence of cancellation that was consistent with the objectives of the migration program (at [42]).
The Tribunal was not satisfied that the consequences of cancellation weighed against the visa being cancelled (at [43]-[44]).
The Tribunal accepted that the cancellation of the visa would result in the cancellation of the remaining applicants’ visa. The Tribunal noted that the first applicant’s children had already returned to China and that the second applicant would return to China with the first applicant if the visa was cancelled (at [45]). On that basis, the Tribunal determined that any cancellation would, for the family members, be of minimal impact. This, it was determined, weighed in favour of the visa being cancelled (at [46]).
The Tribunal then explained that there was nothing before it to indicate that the cancellation would result in Australia breaching any international obligations (at [47]).
The Tribunal also determined that the natural consequence of the visa held by the first applicant is that “his stay would come to an end” (at [48])
The Tribunal continued:
49. The Tribunal notes from the delegate’s decision that the applicants’ 457 visa would have expired already without the cancellation. Re-instating the visa would not serve any practical purpose as the applicant is without a nomination for a new sub-class 482 visa (which replaced the old 457 visa). These visas are intended only to fill shortages in the Australian labour market, for which approved sponsorship and nomination by an Australian employer is required. The Tribunal gives this significant weight in favour of exercising its discretion to cancel the visa.
Considering the circumstances as a whole, the Tribunal concluded that the visa should be cancelled (at [50]-[52]).
PROCEEDINGS IN THIS COURT
The judicial review application dated 18 December 2019 contains three ground of review, as follows:
1. AAT has erred in law in finding that re-instating the visa would not serve any practical purpose;
2. AAT has exercised its discretionary power in bad faith; and
3. AAT has exercised its discretionary power in accordance with the Department’s Procedural Instructions without regard to the merits of my client’s case.
The applicants were represented before this Court by Mr Wong. The Minister was represented by Ms Ellis.
The materials before the Court include the application for judicial review dated 18 December 2018, a Court Book numbering 106 pages (marked as Exhibit 1), an outline of written submissions filed by the applicants on 1 March 2021 and an outline of written submissions filed by the Minister on 15 March 2021.
As noted above, the matter is listed for a show cause hearing pursuant to r 44.12 of the Rules. The applicants are required to demonstrate that there is a reasonably arguable case that the Tribunal fell into error. The Court notes that in hearings of this sort, the applicant need only raise a reasonably arguable case at a necessarily impressionistic level: MZABP v Minister for Immigration & Border Protection [2015] FCA 1391. If the Court considers that a reasonably arguable case arises, the matter will be adjourned to a final hearing and the Minister will be required to show cause why the relief sought should not be granted.
The Court notes that, despite being represented by a lawyer, the applicants grounds of review, written submissions and oral submissions are, with respect, rather unclear. The grounds of review are broad and arguably generic, the written submissions appear to expand on the grounds of review or add further grounds and Mr Wong’s oral submissions did not always clarify issues raised by the Court.
The Court has done the its best to identify and address any and all arguments that were put to it.
GROUND 1
Ground 1 provides:
AAT has erred in law in finding that re-instating the visa would not serve any practical purpose.
Applicants’ Submissions
The applicants’ written submissions provide as follows in relation to ground 1:
As per the case laws and The ADJR Act (s 5(1)(h) and (s 5(3)), the said finding has given rise to a no evidence ground of judicial review as the Full Federal Court states that the ground is made out if there is no evidence to support a finding which is a critical step in its ultimate conclusion. The High Court further states that the no evidence ground of review can only be established where the factual finding in question is a jurisdictional fact. In addition, the ADJR Act (s 5(3)) sets out the following:
(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.
The definition and identification of a jurisdictional fact
Gleeson CJ, Gummow, Kirby and Hayne JJ have defined a jurisdictional fact as a criterion the “satisfaction of which enlivens the power of the decision-maker to exercise a discretion.”
A guide for the identification of jurisdictional facts was provided by Spigelman CJ in Timbarra:
“The issue of jurisdictional fact turns, and turns only, on the proper construction of the statute: see, eg, Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122 at 125; 63 WN (NSW) 31 at 33. The parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality): Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at 859-861; 153 ALR 490 at 515-517.
…
Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation…
Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or nonexistence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.”
During the hearing, before the finding that “[r]e-instating the visa would not serve any practical purpose…” was made, the Member was fully aware of the financial hardship Mr. Zhang was facing and the harm to his youngest daughter. In other words, the Member’s conclusion was likely to significantly affect Mr. Zhang and his family without allowing Mr. Zhang the chance to provide any evidence as to whether a new nomination could be obtained by Mr. Zhang. The provision of a new approved nomination was similar to a Species Impact Statement in Timbarra which was a necessary prerequisite to the exercise of the jurisdiction to either affirm or set aside the first respondent’s decision.
Based on the above case laws, the finding made by the Member in paragraph 49 of the Decision Record is certainly a jurisdictional fact and the failure to enquire the provision of a new approved nomination is tantamount to being no evidence to support that finding which was ‘a crucial step in its ultimate conclusion’.
Accordingly, the elements of the no evidence ground and ADJR Act (s 5(3)) have been made out.
At the hearing of this matter, the Court queried whether Mr Wong (for the applicants) was, in fact, pursuing an “illogicality argument”. Mr Wong appeared to contend that he was but, when pressed, seemed to argue that he was advancing a “no evidence” argument. In this regard, Mr Wong argued that there was “no evidence” of a sort that would permit the Tribunal to make the finding it made at [49]. He contended that the first applicant could “still have applied for a subclass 482 visa” and the Tribunal “was wrong not to let him do so”.
Minister’s Submissions in relation to ground 1
The Minister’s submissions in relation to ground 1 provide:
(a)insofar as the applicants seek to rely on the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”), relief under the ADJR Act is not available in this matter as the ADJR Act does not apply in migration cases;
(b)the applicants’ submissions with respect to this ground are confused, variously alleging that the Tribunal made the impugned finding without evidence, that it did not allow the applicant “the chance to provide any evidence as to whether a new nomination could be obtained”, and that the Tribunal’s “failure to enquire the provision of a new approved nomination is tantamount to being no evidence to support that finding [sic].”;
(c)on 18 March 2018, the Regulations were amended by Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (the “Amendment Regulations”) which removed Subclass 457 visas. As such, it was no longer possible for the first applicant to obtain an approved nomination from a different sponsor by the time of the Tribunal’s decision. Hence any argument referring to a new nomination must fail;
(d)it is not in dispute that the visa would have ceased on 1 October 2018 and there was no power to extend. Accordingly, as the Tribunal recognised, by the time of its decision on 12 December 2019, even if the Tribunal decided not to cancel the visa, the first applicant could no longer hold the visa such that no practical purpose could be served. This finding did not lack evidence, as alleged;
(e)it cannot be said that the Tribunal did not allow the first applicant a chance to provide evidence of a new nomination. The Tribunal recorded the first applicant’s evidence was that he had not secured a new nomination since August 2015. It was therefore open to the Tribunal to find that the first applicant had “had ample time within which to obtain a new sponsorship”. It is also the case that obtaining a new sponsor became impossible for the first applicant after the Amendment Regulations were passed; and
(f)the first applicant had been represented by his current lawyer since well before the Amendment Regulations came into effect. It was the lawyer’s responsibility to ensure that the first applicant provided sufficient evidence to persuade the Tribunal not to exercise the discretion to cancel. Here, that did not occur.
Consideration in relation to ground 1
Ground 1 takes issue with [49] of the Tribunal’s decision, which provides:
The Tribunal notes from the delegate’s decision that the applicants’ 457 visa would have expired already without the cancellation. Re-instating the visa would not serve any practical purpose as the applicant is without a nomination for a new sub-class 482 visa (which replaced the old 457 visa). These visas are intended only to fill shortages in the Australian labour market, for which approved sponsorship and nomination by an Australian employer is required. The Tribunal gives this significant weight in favour of exercising its discretion to cancel the visa.
In effect, the applicants are arguing that the Tribunal’s conclusion that reinstating the visa would not serve any practical purpose “was wrong”. More specifically, it is alleged that there was “no evidence” for the Tribunal to find that re-instating the visa would not serve any practical purpose.
The applicants, through Mr Wong, refer to the ADJR Act. That legislation has no application in the current circumstances. Schedule 1 of the ADJR Act expressly states that migration decisions of this sort are not amenable to review under the ADJR Act.
Reading the applicants’ submissions generously, the Court understands the applicants’ reference to the ADJR Act and s 5 of the ADJR Act to be “instructive” when determining whether a “no evidence” ground is advanced.
In the Court’s view, it was open to the Tribunal to consider the utility of reinstating the visa under the heading “other relevant matters”. As the Tribunal noted, there are no fixed or mandatory factors that the Tribunal is required to take into account when determining whether to cancel the visa. While the Tribunal is guided by policy, this does not “fix” the matters that are relevant considerations. The Tribunal is entitled to consider all relevant circumstances. The utility of any decision the Tribunal makes is a matter that is relevant to the exercise of the discretion.
Further, contrary to the applicants’ submission, there was an evidentiary, and a logical and probative basis, for the Tribunal to find that reinstating the visa would serve no practical purpose. The Tribunal’s reasons were twofold:
(a)the visa had already expired. This was not disputed. Accordingly, it was open for the Tribunal to consider that there would be little practical utility in reinstating the visa as the visa would no longer be in effect (i.e., the first applicant would still be without a valid visa); and
(b)the first applicant was still without a valid nomination. The purpose of the visa was to fill shortages in the labour market. Those shortages related to employers who had an approved sponsorship and nomination. Here, the first applicant had neither an approved sponsor nor a nomination. Accordingly, in reinstating the visa without a sponsor or nomination, the Tribunal would be going against the very purpose and intention of the visa.
The Tribunal’s two findings were rational and logical. They had an evidentiary basis. The evidence upon which the two findings were based related to the first applicant’s own circumstances and was evidence he provided (i.e., as it related to the expiration of the visa and the fact that he had been unable to obtain a sponsor). The Tribunal’s determination that these circumstances were such that reinstating the visa would have no practical utility was reasonable. It cannot be said that no reasonable decision maker would not have come to the same conclusion.
The applicants’ written submissions make reference to the Tribunal not allowing the first applicant the chance to provide any evidence as to whether a new nomination could be obtained. At the hearing, Mr Wong stated that, in his experience, the Tribunal would usually allow an applicant an extra two or three months to obtain a new nomination.
The Court notes as follows in this regard:
(a)the review had been on foot at the Tribunal for over two years (during which time the first applicant could have sought to obtain a new sponsor and nomination). There was no evidence advanced in relation to what steps the first applicant had taken to secure a sponsorship during the period that the matter was under review at the Tribunal or that he had reason to expect that he was going to find a sponsor (noting that he had been unsuccessful previously);
(b)it had been nearly four years since the first applicant had ceased working and he had not secured any further sponsorship or nominations at all. That is, the first applicant had been unable to obtain a sponsorship or nomination well before he had applied to the Tribunal (at [21]);
(c)the first applicant, who was represented at the hearing by Mr Wong, does not appear to have requested additional time to allow the first applicant to obtain a sponsor or nominator; and
(d)the Tribunal’s role is not to assist the applicants to make a better case. If the applicants could have obtained a new sponsor and nomination, they bore the responsibility of doing so or explaining why they needed more time to do so. They did not do that here.
The fact that it had been nearly four years since the first applicant had worked for an approved sponsor and he had not been able to secure one in that time was sufficient for the Tribunal to (logically and reasonably) be satisfied that the first applicant had had ample time to obtain a new sponsorship. It was not for the Tribunal to adjourn the review to enable the first applicant to, perhaps, present a better case when he had had nearly four years to do so. It was not unreasonable for the Tribunal not to adjourn.
Mr Wong in his oral submissions referred to the fact that the first applicant could have obtained a subclass 482 visa under the transitional arrangements of the Amendment Regulations and that, as such, there was “utility in not cancelling the visa”. Hence, Mr Wong argues, there was “no evidence” in support of the finding that reinstating the visa would not serve any practical purpose (as the applicant could still have obtained a nomination under the transitional arrangements).
The applicants misread [49] of the Tribunal’s decision. The Tribunal is not stating that the first applicant could not obtain a new nomination (indeed, it does not seem to have been advanced that the first applicant was still attempting to obtain a sponsor). The Tribunal was simply stating that, at the time of the decision, the applicant did not have a nomination. Whether or not the first applicant could obtain a new nomination (noting the significant time that had elapsed), the fact was that, at the time the Tribunal exercised the discretion, the first applicant did not have a nomination. On that basis there was ample evidence to find that there was “no practical purpose in not cancelling the visa”.
Ground 1, and the oral submissions in support, raise no arguable case of error.
GROUND 2
Ground 2 states:
AAT has exercised its discretionary power in bad faith
Applicants’ Submissions in relation to ground 2
The applicants submit as follows in relation to ground 2:
AAT as a public body exercising statutory powers “must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first.”
The Member did take Mr. Zhang’s financial hardship and the harm that may be suffered by his youngest daughter into consideration. However, the Member did not consider the discrepancies between the money Mr. Zhang is able to make in Australia and the money that Mr. Zhang is able to make in China. Given the fact that Mr. Zhang has borrowed from his friends in the amount of $ 120,000 to obtain his visa to work in Australia and to sustain his daily life when waiting for the outcome of his review application, the country information shows that should Mr. Zhang return to and find a job in China, it is almost impossible for Mr. Zhang to own enough money to repay his debts in his living years. It is therefore inferred that the financial hardship and the harm to his daughter are more serious than what the Member had thought. As such, this clearly demonstrates that the member has acted unreasonably which has resulted in his failing to exercise its discretionary power in good faith.
At the hearing, Mr Wong stressed that the Tribunal did not have “sympathy” for his client. When asked how this amounts to “bad faith”, Mr Wong appeared unable to explain why “a lack of sympathy” amounted to bad faith.
The Court explained that an allegation of bad faith is quite serious in this context. Mr Wong was asked whether he wished to press ground 2.
Mr Wong initially indicated that he wished to withdraw ground 2. However, during subsequent submissions, he appeared to again press the argument that the Tribunal acted bad faith. That argument, however, was somewhat “refined”.
Mr Wong seemed to suggest that the applicants’ sponsor had acted in bad faith.
The fact that the sponsor may have acted in bad faith does not amount to jurisdictional error on the part of the Tribunal and the Court will not consider this issue further.
If (and, again, it was not entirely clear) Mr Wong is suggesting that the Tribunal should have considered that the sponsor acted in “bad faith” (because the visa was cancelled by no fault of the applicant and the sponsor did not advise the applicant of what had occurred), the Tribunal did so at [21] and [36]-[37]. It expressly accepted that the visa was cancelled through no fault of the applicants and gave this some weight in favour of the visa not being cancelled.
Minister’s Submissions
The Minister, in turn, submits as follows in relation to ground 2:
(a)contrary to the allegations made in ground 2, the Tribunal did consider these claims raised by the applicants at [23] and [30]-[31] where the Tribunal recorded the first applicant’s claims that he had borrowed “$70,000 from friends in China”, he would “suffer some emotional hardship due to being unable to repay his debts… if he worked for ‘twenty years’ he would be unable to repay the money”, and that he “owed $50,000 to people here [in Australia].”
(b)in circumstances where the first applicant conceded that he was a trained boilermaker with over 20 years’ experience working in the industry and that he should be able to find work in China in his industry, it was open to the Tribunal to not consider that “the degree of hardship that he would face would be insurmountable”, not be satisfied that “the applicant would not be able to find any employment or business opportunities in China”, and to find that overall minimal hardship would be caused by cancelling the visa;
(c)insofar as the applicants contend that the Tribunal did not consider the discrepancy between the first applicant’s potential earnings in China versus in Australia, nor the financial hardship to the first applicant’s daughter, there is no evidence that these issues were ever raised to the Tribunal; and
(d)insofar as this ground alleges that the Tribunal was biased, the applicants need to show some conduct on the part of the decision maker apart from the decision maker’s expression of her reasons, which would indicate that she had been guilty of prejudgment or was biased. The applicants have made no attempt to comply with the requirement that this serious allegation be firmly and distinctly made and clearly proven.
Consideration
It is not entirely clear whether Mr Wong was abandoning ground 2 in so far as it advances an argument that the Tribunal acted in bad faith. In the circumstances, the Court feels it necessary to consider the ground as articulated and as addressed by Mr Wong before the Court.
It is a very serious matter to allege that a decision-maker has acted in bad faith.
In SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 it was stated:
An allegation of bad faith is a very serious one. Bad faith in this context implies a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision-maker: NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 123 FCR 298; 69 ALD 1; 193 ALR 449; [2002] FCAFC 228 at [107]–[108].
It is arguable from the applicants’ written submissions and Mr Wong’s oral submissions that the applicants (and Mr Wong) do not fully understand the concept of “bad faith”.
In SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361, the Court summarised a number of “propositions” in relation to bad faith as follows:
43. First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial.
44 The fifth proposition is that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
45 Sixth, mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism.
46 Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
47 Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task.
48 Ninth, it is not necessary to demonstrate that the decision maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power.
(Citations omitted)
The applicants’ submissions do not address any of these matters. Rather, the applicants focus on “unreasonableness”. Arguably, the applicants are suggesting that mere “unreasonableness” amounts to bad faith.
There is absolutely no evidence that the Tribunal acted with anything but integrity.
The decision itself shows that the Tribunal weighed a number of matters in favour of the first applicant not having his visa cancelled. The conduct of the review shows no indication of bad faith or dishonesty whatsoever. The first applicant attended a hearing before the Tribunal which was of 40 minutes duration and he had the opportunity to provide written submissions and evidence.
In effect, the applicants are saying that the decision was made in bad faith because they do not like the outcome. Disagreement is not a basis for finding that the Tribunal acted in bad faith.
The applicant’s submissions also argue that because the Tribunal did not consider financial hardship or accept that that the harm the first applicant’s daughter would face was as serious as they believe it to be, the Tribunal acted in “bad faith”. In fact, the applicants expressly accept that the Tribunal considered the financial hardship and harm to the daughter. They state that the consequences of financial hardship and the harm would be more serious than the Tribunal “thought”. The applicants make no allegation of capriciousness. They do not assert that the Tribunal acted dishonestly. They do not suggest that the Tribunal was “reckless”. Rather, they stress that things were more “serious” than the Tribunal “thought”.
Ground 2, to the extent it argues bad faith, is rejected. There is absolutely no evidence of bad faith on the part of the Tribunal.
The Court also notes that the Minister submits that to the extent ground 2 argues bias, this has not been clearly made and has not been distinctly proven (even in the context of a show cause application where the Court accepts that the standard is lower). For the reasons given in relation to the bad faith argument above, there is absolutely no basis for a finding of bias. The applicants are simply disagreeing with the Tribunal’s conclusion and are, in effect, seeking merits review.
Turning now to what is arguably a complaint about “reasonableness” in ground 2 insofar as it relates to the Tribunal’s consideration of “the financial hardship and the consequences of cancellation to the daughter”, the Tribunal acknowledged and addressed these considerations as follows:
23. The applicant said it would be very difficult to him to return to China. He said prior to moving to Australia he was working for a joint venture in China as a boilermaker. He said he is trained in that work and has over 20 years’ experience working in the industry. He said when the opportunity to move to Australia happened he borrowed $70,000 from friends in China. He said he would be very embarrassed to return to China as he feels he would have let his friends down.
…
27. The applicant indicated he would suffer some hardship if he had to leave Australia and return to China.
28. The applicant conceded in his oral evidence that he was trained as a boilermaker and should be able to find work in China in his industry. He also stated that his two daughters live there with his mother. He said he doesn’t own a house in China, however, he would live with his mother. He said his wife is not working here and would return to China with him.
29. The applicant further said he took this opportunity to work in Australia because he thought he would be able to give his daughters a better education. The Tribunal notes that his elder daughter is now at university and his younger daughter is still in primary school.
30. The applicant said he would suffer some emotional hardship due to being unable to repay his debts to his friends in China from whom he borrowed prior to moving to Australia. He said if he worked for ‘twenty years’ he would be unable to repay the money.
31. The Tribunal noted with the applicant that his oral evidence was that he owed approximately $50,000 to people here, money he’d borrowed to live whilst not working for the last 4 years. The applicant agreed he owed money ‘everywhere’.
32.The Tribunal acknowledges that the applicant may suffer some emotional hardship if he had to depart Australia but does not consider that the degree of hardship that he would face would be insurmountable and is not satisfied that the applicant would not be able to find any employment or business opportunities in China. The applicant agreed with this in his own oral evidence.
33. The Tribunal accepts the applicant’s younger daughter may benefit from an Australian education and that this may cause some hardship to her, the applicant and his wife.
34. Overall however, the Tribunal finds there is minimal hardship which may be caused by the cancellation of the visa.
35. The Tribunal finds this weighs in favour of its discretion to cancel the visa.
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45. The Tribunal accepts that the cancellation will result in the cancellation of his wife’s and children’s visa.
The Tribunal notes however that the children currently reside in China. The older daughter remained in China with the applicant’s mother and the younger daughter lived here for approximately one year before also returning to China to live with the applicant’s mother. The applicant confirmed that his wife would also return to China with him.
46. The Tribunal notes the consequential cancellations, however, finds this would be of minimal impact to the secondary visa applicants. The Tribunal gives this some weight in favour of its discretion to cancel the visa.
The applicants seem to suggest that it was unreasonable for the Tribunal to consider that there would be minimal hardship caused by the cancellation of the visa in circumstances where the first applicant owed $120,000 to friends and family and the country information indicates that, should the first applicant return to and find a job in China, it would be impossible for him to earn enough money to repay his debts. Mr Wong made some vague references to this in his oral submissions.
It is noted that the “country information” that the applicants refer to was not before the Tribunal. Nor is any country information before the Court. For the applicants to now suggest that it was unreasonable for the Tribunal to come to a conclusion on the basis of country information that was never put to the Tribunal rises no higher than a request for merits review.
On the materials before the Court, the first applicant never alleged that he would face financial hardship as a result of having to repay his debts. Rather, the first applicant only claimed that he would suffer “emotional hardship” because his inability to pay his debts would cause embarrassment. The Tribunal addressed emotional hardship accordingly.
The first applicant conceded that he would be able to obtain employment on return. He gave no indication about “how much” he would earn. His statement “if he worked for ‘twenty years’ he would be unable to repay the money” lacks context. It does not indicate whether the first applicant would, even if he worked in Australia, be able to repay the debt. The first applicant also said he would live with his mother. In light of this evidence and the fact that it was never put to the Tribunal that the first applicant would face financial hardship as a result of his debts (rather only emotional hardship), it was open to the Tribunal, and entirely reasonable for the Tribunal, to conclude that any hardship faced would be minimal.
For finality, the Court also notes that, even if there was an implicit suggestion that the applicants would face financial hardship as a result of having to repay debts, the Tribunal concluded that the first applicant would be able to obtain employment and business opportunities and any hardship would not be insurmountable. The first applicant himself appears to have agreed with this. The first applicant said he could obtain employment. He did not indicate that his brother would stop supporting the first applicant’s children in China if he returned and the first applicant confirmed that he would live with his mother. In those circumstances, it was logical for the Tribunal to conclude that any financial hardship was only minimal.
In relation to the harm faced by the first applicant’s daughter, the Tribunal accepted that the visa cancellation might cause hardship (at [33]). However, as the Tribunal noted at [45], the first applicant’s daughter had already returned to China. Read as a whole, and in context, the hardship faced by the first applicant’s daughter (which was advanced as the loss of the benefit of an Australian education) was minimal given that the daughter had already returned to China.
There is no arguable claim that the Tribunal’s consideration of the “harm” that the first applicant’s daughter may face was illogical or unreasonable. The Tribunal addressed that harm in a rational and logical manner in light of the evidence and information that was before it.
Ground 2, interpreted generously, raises no reasonably arguable case of error on the part of the Tribunal.
GROUND 3
Ground 3 states:
AAT has exercised its discretionary power in accordance with the Department’s Procedural Instructions without regard to the merits of my client’s case.
Applicants’ Submissions in relation to ground 3
The applicants submit as follows in relation to ground 3:
In paragraph 13 of the decision record, the member states the following:
“The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it. Specifically, the Courts have held that the Procedural Instructions constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in the Procedural Instructions cannot go beyond the wording of the legislation, even where they are favourable to an applicant.”
It appears that the above statement has truth in it. However, it still can be challenged by the fact that flexibility in the application of policy is always an important aspect of the proper exercise of discretion, particularly when the information provided by my client is relevant to be considered. It can be further submitted that “[d]ecision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which otherwise might appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.”
The information deposed below is relevant to be considered in accordance with the Department’s Procedural Instructions:
•The cancellation of Mr. Zhang’s visa was no fault of his own.
•The serious of harm and financial hardship that are likely to significantly affect Mr. Zhang and his family should his visa not be reinstated.
The Member’s failure to consider the relevant information and the severity of the harm and financial hardship has led to the Member’s failure to exercise its discretionary power in accordance with the Department’s Procedural Instructions without regard to the merits of my client’s case.
At the hearing, Mr Wong also referred to there not being “flexibility” in the exercise of the discretion.
Minister’s Submissions
The Minister submits as follows in relation to ground 3:
(a)ground 3 fails on the facts. The Tribunal expressly acknowledged that the circumstances in which the grounds for cancellation arose were beyond the first applicant’s control and it gave this some weight in favour of not cancelling the visa; and
(b)as explained with respect to ground two, the Tribunal also expressly considered the first applicant’s claims about the financial difficulties he would face if the visa was cancelled, insofar as they were raised.
Consideration in relation to ground 3
As the Tribunal correctly noted, it was not required to apply the Department’s Procedures and Advice manual. However, there is no prohibition against it doing so: King v Minister for Immigration & Border Protection [2014] FCA 766.
The applicants’ written submissions appear to suggest that the Tribunal “failed to consider” certain relevant matters in PAM3. They highlight the fact that the cancellation of the visa was not their fault. The Tribunal considered this as follows:
21. The Tribunal acknowledges the evidence which indicates that the applicant’s employment ceased through no fault of his own. The Tribunal also accepts based on the evidence provided to the delegate that he worked until January 2016. Nearly 4 years has elapsed since that time. The Tribunal notes that the applicant attempted to obtain a new sponsor shortly after ceasing work but was unsuccessful.
The Tribunal then continued:
Circumstances in which the cancellation arose.
36. The Tribunal acknowledges that the circumstances in which the grounds for cancellation arose were beyond the applicant’s control.
37. The Tribunal gives this some weight in favour of not cancelling the visa.
38. However, the Tribunal also notes that the applicant was able to secure a new sponsorship application fairly quickly (which was unfortunately unsuccessful) but from that time has not secured a new one. Nearly 4 years have elapsed since he ceased working for his approved sponsor. The Tribunal therefore considers that the applicant has had ample time within which to obtain a new sponsorship.
39. The Tribunal gives greater weight to this in considering its discretion to cancel the visa.
The Tribunal acknowledged that the evidence indicated that the visa was cancelled through no fault of the first applicant and that the first applicant had purported to remedy the fact that his sponsor was no longer sponsoring him. The Tribunal weighed this in favour of the first applicant.
There is no arguable basis upon which to find that the Tribunal did not consider that the circumstances in which the cancellation arose were beyond the first applicant’s control.
Insofar as the applicants are arguing that the Tribunal’s finding at [39] was illogical, the Court does not consider this to be arguable. The weight the Tribunal gives to the particular circumstances and factors is a matter for the Tribunal: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464.
Further, that the Tribunal determined that the fact that the first applicant had been unable to remedy his breach for four years outweighed the fact that the breach originally occurred due to circumstances beyond his control is not a conclusion that no reasonable-decision maker could have come to. Nor is that finding capricious.
The second factor that the applicants appear to suggest that the Tribunal did not consider (and which PAM3 indicates should be considered) is the “serious of harm and financial hardship that are likely to significantly affect Mr. Zhang and his family should his visa not be reinstated”.
The Tribunal did consider this issue as follows:
23. The applicant said it would be very difficult to him to return to China. He said prior to moving to Australia he was working for a joint venture in China as a boilermaker. He said he is trained in that work and has over 20 years’ experience working in the industry. He said when the opportunity to move to Australia happened he borrowed $70,000 from friends in China. He said he would be very embarrassed to return to China as he feels he would have let his friends down.
24. Even though the Tribunal acknowledges the applicant may face some social difficulty in relocating back to China, the Tribunal does not consider this to be a compelling reason not to cancel the applicant’s subclass 457 visa.
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27. The applicant indicated he would suffer some hardship if he had to leave Australia and return to China.
28. The applicant conceded in his oral evidence that he was trained as a boilermaker and should be able to find work in China in his industry. He also stated that his two daughters live there with his mother. He said he doesn’t own a house in China, however, he would live with his mother. He said his wife is not working here and would return to China with him.
29. The applicant further said he took this opportunity to work in Australia because he thought he would be able to give his daughters a better education. The Tribunal notes that his elder daughter is now at university and his younger daughter is still in primary school.
30. The applicant said he would suffer some emotional hardship due to being unable to repay his debts to his friends in China from whom he borrowed prior to moving to Australia. He said if he worked for ‘twenty years’ he would be unable to repay the money.
31. The Tribunal noted with the applicant that his oral evidence was that he owed approximately $50,000 to people here, money he’d borrowed to live whilst not working for the last 4 years. The applicant agreed he owed money ‘everywhere’.
32.The Tribunal acknowledges that the applicant may suffer some emotional hardship if he had to depart Australia but does not consider that the degree of hardship that he would face would be insurmountable and is not satisfied that the applicant would not be able to find any employment or business opportunities in China. The applicant agreed with this in his own oral evidence.
33. The Tribunal accepts the applicant’s younger daughter may benefit from an Australian education and that this may cause some hardship to her, the applicant and his wife.
34. Overall however, the Tribunal finds there is minimal hardship which may be caused by the cancellation of the visa.
35. The Tribunal finds this weighs in favour of its discretion to cancel the visa.
…
45. The Tribunal accepts that the cancellation will result in the cancellation of his wife’s and children’s visa.
The Tribunal notes however that the children currently reside in China. The older daughter remained in China with the applicant’s mother and the younger daughter lived here for approximately one year before also returning to China to live with the applicant’s mother. The applicant confirmed that his wife would also return to China with him.
46. The Tribunal notes the consequential cancellations, however, finds this would be of minimal impact to the secondary visa applicants. The Tribunal gives this some weight in favour of its discretion to cancel the visa.
The Tribunal did consider the likelihood of any harm and financial hardship that could affect the first applicant and his family should the visa not be reinstated. It was not satisfied that any harm would amount and positively determined that the first applicant could find employment or business opportunities in China and would live with his mother.
Accordingly, there is no reasonably arguable case that the Tribunal failed to consider the “harm” to the first applicant and any “hardship”.
At the hearing, Mr Wong also argued that the Tribunal had been “inflexible”.
The Tribunal’s decision demonstrates that the Tribunal focussed on determining whether the first applicant’s particular circumstances (and those of his family) warranted the Tribunal exercising the discretion not to cancel the visa. The Tribunal’s decision was not dictated by policy. Nor did the Tribunal disregard policy in any event. The Tribunal undertook an evaluative assessment of all of the facts and information as presented by the first applicant. Its approach was in no way inflexible.
In effect, this ground (and Mr Wong’s oral submissions) seek impermissible merits review.
Ground 3 raises no arguable case of error.
CONCLUSION
The application for judicial review, the written submissions and the oral submissions have failed to identify any arguable case of jurisdictional error on the part of the Tribunal.
Given the lack of clarity in the arguments advanced by the applicants, the Court has also sought to identify whether any arguable error arises. The Court is not satisfied that it does.
The application is, accordingly, dismissed pursuant to r 44.12(1)(a) of the Rules.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 30 March 2021
SCHEDULE OF PARTIES
PEG 491 of 2019 Applicants
Fourth Applicant:
SHANSHAN ZHANG
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