Zhao v MIMA

Case [2000] FCA 1235

FEDERAL COURT OF AUSTRALIA

Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235

IMMIGRATION – visas – cancellation – notification of possible grounds for cancellation – identification of grounds – particulars – whether sufficient particularity – information underlying grounds – notification process as code of procedural fairness – compliance to be judged by reference to statutory purpose of fairness – state of satisfaction necessary in respect of existence of ground for cancellation – whether onus wrongly placed on visa holder to show cause against cancellation – whether state of satisfaction existed.

Migration Act 1958 (Cth) s 116. S 457(1)(c), s 119, s 120 and s 121
Migration Regulations

GU v Minister for Immigration and Multicultural Affairs [1999] FCA 991 referred to

ZHAO JINGFU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 70 of 2000

FRENCH, HILL & CARR JJ
1 SEPTEMBER 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

 W 70 OF 2000

BETWEEN:

ZHAO JINGFU
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

FRENCH, HILL & CARR JJ

DATE OF ORDER:

1 SEPTEMBER 2000

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The Appellant pay the Respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

 W 70 OF 2000

BETWEEN:

ZHAO JINGFU
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

FRENCH, HILL & CARR JJ

DATE:

1 SEPTEMBER 2000

PLACE:

PERTH

REASONS FOR JUDGMENT

THE COURT:

Introduction

  1. Zhao Jingfu (Mr Zhao) applied in 1997 for a temporary resident’s visa under the Independent Executive category pursuant to subclass 457 in the Migration Regulations.  The visa was granted in part upon the basis that Mr Zhao would be establishing a business in Australia in which he would be personally involved.  The visa having been granted, he returned to China pending the processing of applications for visas for members of his family.  There were complications associated with that process arising out of requirements for specialist medical examinations of one of his children.  In the event, some seven months passed and he had not returned to Australia.  He was interviewed at the Australian Embassy in May 1999 and subsequently a notice of intention to cancel his visa issued.  Submissions were made on his behalf in relation to the mooted cancellation.  In the event his visa was cancelled on the basis he no longer had a genuine and realistic commitment to establishing and being involved in a business in Australia.  That is to say, one of the circumstances which permitted the grant of his visa no longer existed.

  2. Mr Zhao sought judicial review of that decision which was made by a delegate of the Minister.  His application was dismissed by RD Nicholson J and he now appeals to this Court.  The case raises questions concerning the procedures for notification to visa holders of possible cancellation of…

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AGLC
Zhao v MIMA [2000] FCA 1235
Case
[2000] FCA 1235
Decision Date

CaseChat Overview and Summary

In the case of Zhao v MIMA, Mr Zhao, a Chinese national, sought judicial review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs, which had led to the cancellation of his temporary resident visa. The appeal against the dismissal of his application by RD Nicholson J was brought before the court. The central issues in this case revolved around the procedural requirements for notifying visa holders of potential visa cancellation and the appropriate approach to be taken when making such cancellation decisions.

The court examined whether the notification procedures afforded Mr Zhao sufficient protection and if the decision to cancel his visa was based on the grounds outlined in the notification. The court found that the notice of intention to cancel his visa, although not received by Mr Zhao, was adequately communicated to him during an interview at the Australian Embassy. The decision to cancel his visa was based on the grounds specified in the notification, which included his absence from Australia for seven months since the grant of his visa and his inability to convincingly demonstrate a genuine and realistic commitment to own and operate a business in Australia.

The court concluded that the decision-maker was not required to be satisfied that Mr Zhao had rebutted the notified grounds for cancellation, but rather that the decision-maker needed to be satisfied that the grounds for cancellation existed. The decision-maker's reasoning, which included Mr Zhao's departure from Australia shortly after the visa was granted and his subsequent absence for seven months, supported the conclusion that Mr Zhao no longer had a genuine and realistic commitment to his business in Australia. The court held that the decision-maker's approach was consistent with the requirements of the Migration Act.

The appeal was ultimately dismissed, and Mr Zhao was ordered to pay the respondent's costs of the appeal. The court's decision underscored the importance of clear communication of the grounds for cancellation to visa holders and the necessity for decision-makers to be satisfied that the grounds for cancellation are indeed established.

Orders

Orders of the court

1. The appeal be dismissed.

2. The Appellant pay the Respondent’s costs of the appeal.

Background

Background to the litigation

Mr Zhao sought judicial review of that decision which was made by a delegate of the Minister. His application was dismissed by RD Nicholson J and he now appeals to this Court. The case raises questions concerning the procedures for notification to visa holders of possible cancellation of their visas and the way in which the cancellation decision must be approached. Factual Background Mr Zhao is a national of the Peoples Republic of China, who was born on 21 August 1958. He is married and has three dependent children. In 1988, Mr Zhao was employed as a manager by the Beijing Economy Trade and Technology Development United Company. The company is administered by the Beijing Municipal Government. Its business includes the manufacture and sale of industrial machinery and equipment, electrical and electronic appliances, wholesale and retail of textiles, real estate investment and investment in restaurants and hotels. In 1989, Mr Zhao became a Departmental Manager within that company and in 1990 was transferred to the Domestic Trading Department where he was mainly responsible for developing the company’s trading operations, particularly in relation to construction material. In 1992, he was promoted and seconded to Beijing Puliqun Trading Company where he took up an appointment as Assistant General Manager. In 1993 he was appointed Deputy General Manager of that company. On 10 May 1997, Mr Zhao came to Australia on a visit under a Temporary Business Visa Subclass 456 which expired on 17 May. On 14 May a migration agent, John Wang, lodged an application, on his behalf, for a temporary resident’s visa under the Independent Executive category pursuant to subclass 457. Mr Zhao foreshadowed that his family members would apply for entry visa after his application was approved. The letter in support of the application advised that a company had been registered under the name of Fuju Industry Pty Ltd on 22 April 1997 of which he was both the managing director and main shareholder. The letter went on: “Mr Zhao will be the managing director of Fuju – the most senior executive position within the company. He will contribute directly to the success of the company’s business operations in Australia. Please note that net assets of A$228,000 has been transferred to Australia. The funds will be used to invest in the company for the purpose of conducting and establish company’s business activities.” (sic)A copy of a bank statement was attached. A more detailed submission was lodged in support of the application on 3 June 1997. Reference was made to Mr Zhao’s business experience in China. It referred to the registration in Australia of his company, Fuju Industry Pty Ltd, and his desire to promote Chinese and Australian trade relationships by marketing Australian products in the Chinese market. It went on: “More importantly, Mr Zhao would be able to pass his many years of expertise in dealing with the Chinese market on to its future local employees, and to provide employment to as many Australian residents as possible....Mr Zhao is the director and main shareholder of the company. He therefore will personally involved in every important aspects of the company business in Australia. (sic)...Mr Zhao will be the Managing Director of Fuju – the most senior executive position within the company. He will contribute directly to the success of the company’s business operations in Australia.”The submission set out what Mr Zhao’s duties and responsibilities would be as managing director of Fuju and the company’s policy of minimal reliance on expatriate staff. The latter, it was said, would require a considerable investment by the company in the training of local staff. Mr Zhao was to “play an important role in this training”: “The incumbent will pass on his skills and experience to the company’s Australian staff by way of supervised hands-on training on an ongoing basis. Because Mr Zhao is specialised in trade with Chinese companies his skills are rarely found in Australia. The presence of the nominee in Australia will provide a unique opportunity for his Australian colleagues to be trained in this industry.”Reference was then made to his qualifications and work experience and his transfer of some funds to Australia as a demonstration of his “serious business commitment to Australia”. Accompanying the submission was a record of the investment of A$228,000 with the ANZ Bank on ANZ Bank letterhead dated 12 May 1997. Also included was a business proposal in respect of Fuju Industry Pty Ltd. By a letter dated 9 February 1998 the Department of Immigration and Multicultural Affairs drew Mr Zhao’s attention to the requirements of reg 457.223(7) setting out the requirements for a subclass 457 visa as an independent executive. It was pointed out that it was necessary for him and/or his spouse to show that he had net assets of A$250,000. The Department was not satisfied that sufficient information had been provided. He was also asked to provide a description of the proposed business and evidence of market research and business planning. Mr Zhao’s migration agent, John Wang, responded to the Department’s letter by a letter of 12 February 1998. The letter provided evidence of the term deposit with the ANZ Bank although, it would seem, that this had already been provided with the letter of 3 June 1997. The letter also stated: “As Managing Director of his company, Mr Zhao will be involved in every important aspects (sic) of the company’s daily operations. His duties and responsibilities will include but not limited to developing policy and strategic business plans and related credit, marketing, personnel and systems enhancement policies; developing quality assurance procedures and capital development plans; managing the implementation of plans; overseeing the day to day operations of the companies; ensuring that all businesses are conducted in accordance with legal and regulatory obligations and that satisfactory relationships are maintained with the Government and regulatory bodies.”It was indicated that his dependents could undergo medical and x-ray examination soon.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the end the combination of these documents in our opinion made plain to Mr Zhao the basis upon which cancellation of his visa was being considered and left him in a position where he was sufficiently fairly informed to be able to resort to available information and make such submissions as were open on the question of the cancellation.The Ground of the Decision to Cancel The notification procedure and the protection it affords would be illusory if it were open to the Minister to make a decision cancelling a visa on some ground other than that set out in the notification. However that did not happen in this case. The decision to cancel the visa as reflected in the decision record that Mr Kane issued on 8 October 1999 was based upon the grounds set out in the second dot point contained in the letter of 23 June which relied upon clause 457.223(7)(b) in the Second Schedule. The decision to cancel was therefore taken upon the basis of one of the grounds of which Mr Zhao had been notified. Onus on the Visa Holder A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. The decision-maker must ultimately be satisfied that the ground for cancellation is established. The language of s 119, which requires the visa holder to be invited to show that the grounds notified do not exist or that there is a reason why the visa should not be cancelled, does not of itself affect the ultimate requirement of satisfaction imposed upon the decision-maker by s 116. In this case the question whether a wrong test has been applied is to be determined by reference to the reasons for decision. These are to be read as administrative reasons and, in the formula honoured by repetition, if not by time, not “with an eye keenly attuned to error”. After adverting to the interview conducted with Mr Zhao at the Embassy in May, and identifying submissions made and material relied upon, the reasoning adopted by Mr Kane began by reference to his departure from Australia one day after being granted the visa and the fact that he had been away for seven months when interviewed at the Australian Embassy in May 1999. He was evidently proceeding here upon the basis that this conduct supported the positive inference that there was at the time of grant of the visa a genuine and realistic commitment to carry on business in Australia that did not continue. His reasons spoke in terms of the applicant not being “convincing” in his claims at interview concerning his commitment. He referred to the absence of material from Mr Zhao and then said: “I have reached the conclusion that in both his lack of business activity and responses to questions at interview the visa holder has been unable to demonstrate that he continues to have a genuine and realistic commitment to own and operate a business in Australia.”This does not indicate the imposition of an onus upon the visa holder somehow contrary to the requirements of satisfaction under s 116. Essentially, the decision-maker is considering the absence of a circumstance grounding the decision to grant the visa namely a genuine and realistic commitment to direct and continuous involvement in the management of a business in Australia. Given that it is a matter peculiarly within the knowledge of Mr Zhao, his failure to demonstrate in a convincing way the existence of the commitment can properly support the state of satisfaction that the commitment no longer exists. Mr Kane did look at the explanation offered by Mr Zhao that he had been prevented from undertaking business activities in Australia because of delays associated with his dependents’ visa applications. He was entitled to discount that explanation having regard to the absence of any legal impediment to Mr Zhao returning to conduct business in this period.

Ratio Decidendi

Legal Principle Established

On or about 21 May 1999, Mr Zhao received a letter from the Department giving notice of intention to cancel his visa under s 116 of the Migration Act. The letter was in the following terms: “NOTICE OF INTENTION TO CANCEL UNDER SECITON 116 OF THE MIGRATION ACT 1958Dear Zhao Jing FuIt has come to the Department’s attention that there may be a ground for cancellation of your visa under section 116 of the Migration Act 1958 because you departed Australia the second day after getting subclass 457 visa and have not been to Australia till now.If this is the case, your visa may be cancelled under section 116(1)(a) which sets out the following ground for cancellation: any circumstances which permitted the grant of the visa no longer exists. The Migration Act 1958 gives you the opportunity to comment on this ground for cancellation and to give reasons why your visa should not be cancelled.You should give a written answer why your visa should not be cancelled. Your answer should say: .why you think the ground(s) for cancellation does or does not exist; and. why you think your visa should not be cancelled. You must provide your response by 17/06/1999. If you do not respond within that time, a decision on whether to cancel your visa will be made using information already held by the Department. If you are unable to respond by the date above, you should contact Temporary Residence section at the above address before 17/06/1999 to seek an extension of time. You will only be given an extension of time if you have a legitimate reason for not responding by 17/06/1999.Deciding whether to cancel your visa is a two-step process. An officer will decide whether there is a ground for cancellation of your visa. Your written response will be taken into account. If the officer decides that there are no grounds for cancellation, your visa will not be cancelled.If the officer decides that there is/are a ground(s) for cancellation, a decision will be made on whether to cancel your visa. Your written response will be taken into account. The decision-maker will take into account matters such as: the purpose of your travel to and stay in Australia; whether you intend a temporary or permanent stay in Australia; whether you have previously travelled to or spent any time in Australia; your present circumstances, such as: -the length of your lawful residence in Australia; - the strength of your family, social, business and other ties with Australia; -the degree of hardship which may be caused to Australian citizens or permanent residents if your visa were cancelled; -any unreasonable hardship you might suffer if your visa were cancelled; - your ties to other countries; the circumstances in which the ground for cancellation arose; the seriousness of the ground for cancellation; the evidence of the business you have conducted in or in relation to Australia since the grant of 457 visa; your behaviour in relation to the Department.You should address these matters in your response.If your visa is cancelled you will become an unlawful non-citizen, unless you are granted a further visa.If a person (other than a family unit member) holds a visa because you hold a visa and your visa is cancelled, then that other person’s visa may also be cancelled.If you have any queries please contact Temporary Residence Section.Yours sincerelyFor Second Secretary 17 May 1999” On 14 June 1999 Mr Zhao’s new migrant agent, Megan Hoey of Australian Visa and Migration Services, sent a letter denying any change of circumstances for the purposes of s 116 and contending that the notice of intention to cancel did not comply with the requirements of the Act. She also sought copies of notes and recordings of discussions between the Department and Mr Zhao. Garry Kane, a Senior Migration Officer at the Australian Embassy replied, on 23 June, referring to Mr Zhao’s attendance at the Embassy with his representative, John Wang. He said that the notice of intention to cancel was provided orally to Mr Zhao at the interview and that a written notice was given to him at the Embassy reception a short time after. However, the notice in question was sent by mail to his former agent’s law office in Beijing and he did not have it nor was he aware of its contents when he attended the interview on 20 May. In the letter of 23 June, Kane stated that the decision to pursue the cancellation was primarily due to his absence from Australia for seven months since the grant.