ZHAO v Minister for Immigration
[2018] FCCA 998
•30 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZHAO & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 998 |
| Catchwords: MIGRATION – Application for judicial review of decision by the Administrative Appeals Tribunal (“the Tribunal”) to cancel the First Applicant’s Subclass 801 (Spouse) visa (“the visa”) under s.109 of the Migration Act 1958 (Cth) (“the Act”) – two certificates issued by the Minister under s.375A of the Act – whether Tribunal failed to disclose to the Applicants the existence of the Second Certificate – whether Tribunal failed to disclose adverse information the subject of the First and Second Certificates – whether this failure amounted to jurisdictional error – held Tribunal failed to disclose to the Applicants the existence of the Second Certificate and the information in the documents which were covered by the two certificates – held that, in the circumstances, the failure to disclose the existence of the certificates or information covered by the certificates did not amount to “practical injustice” and therefore no jurisdictional error arises – held Tribunal did not misinterpret the requirements under Public Interest Criterion (“PIC”) 4001(cl.4001 of sch.4 to the Regulations) – held Tribunal did not make or act upon a false assumption regarding the satisfaction of the Character Test under s.501 of the Act – held Tribunal did not misconstrue the nature of the discretion conferred by s.109 of the Act – held Tribunal did not make an error as to a critical finding of fact – no jurisdictional error arises – amended application for judicial review dismissed with costs. |
| Legislation: Freedom of Information Act 1982 (Cth) Migration Regulations 1994 (Cth), reg.2.41, sch.2 cl.801.223, sch.4 cl.4001 |
| Cases cited: AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 Minister for Immigration and Border Protection v SZMTA [2018] HCATrans 34 |
| First Applicant: | LIJUN ZHAO |
| Second Applicant: | KEYU ZHAO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 165 of 2016 |
| Judgment of: | Judge Jones |
| Hearing date: | 22 November 2017 |
| Date of Last Submission: | 22 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 30 April 2018 |
REPRESENTATION
| Counsel for the Applicants: | Mr Hughan |
| Solicitors for the Applicants: | Tao Jiang Lawyers |
| Counsel for the Respondents: | Ms Lucas |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Applicants’ amended application for judicial review filed on
14 November 2017 be dismissed.
The Applicants pay the costs of the First Respondent in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 165 of 2016
| LIJUN ZHAO |
First Applicant
And
| KEYU ZHAO |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
This decision concerns an amended application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (“the Tribunal”), dated 18 January 2016, affirming the decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”), made on 22 May 2015 to cancel the First Applicant’s (“the First Applicant”) Subclass 801 (Spouse) visa (“the 801 visa”). The Tribunal’s decision is at Court Book (“CB”) 882-897.
The material before the Court is the Applicants’ amended application for judicial review filed on 14 November 2017, the affidavit of the First Applicant filed on 1 February 2016, the Minister’s response filed on
5 February 2016, the affidavit of Melissa Jane Gangemi filed on
20 October 2017, the Applicants’ Outline of Submissions filed on
20 November 2017, the Minister’s Outline of Submissions filed on
20 November 2017 and the Court Book.
The Applicants are citizens of China. The Second Applicant is the adult daughter of the First Applicant.
On 27 April 2010, the Applicants were granted subclass 820 Partner (Temporary) visas (“the 820 visas”) (CB 120).
On 7 May 2014, the Department of Immigration and Border Protection (“the Department”) notified the First Applicant that he had been granted the 801 visa (hereon referred to as “the visa”) (CB 285).
On 10 March 2015, the Department sent the First Applicant a Notice of Intention to Consider Cancellation (“NOICC”) of the visa under s.109 of the Migration Act 1958 (Cth) (“the Act”) (CB 303-308). Section 109 of the Act provides as follows:
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
The basis of the proposed cancellation of the visa was that a delegate of the First Respondent (“the Delegate”) considered that the First Applicant had not complied with s.103 of the Act, which provides as follows:
103 Bogus documents not to be given etc.
A non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided.
At the time of the Delegate’s finding, “bogus document” was defined in s.97 of the Act. It is now defined in s.5 of the Act as follows:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
The Delegate noted in the NOICC that in order to support his application for the visa, the First Applicant was required, because of the criteria in sub-cl.801.223(1) of sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”), to satisfy the requirements of Public Interest Criterion (“PIC”) 4001 (cl.4001 of sch.4 to the Regulations). PIC 4001 (cl.4001 of sch.4 to the Regulations) provides that:
4001 Either:
(a) the person satisfies the Minister that the person passes the character test; or
(b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or
(c) the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or
(d) the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.
For the purpose of satisfying the character requirements of PIC 4001 (cl.4001 of sch.4 to the Regulations), the First Applicant had previously submitted to the Department a copy of a “Notarial Certificate for Non-Criminal” dated 25 September 2013 from China (“the 2013 Notarial Certificate”) (CB 224). The 2013 Notarial Certificate stated that the First Applicant “…had no record of committing offence against the criminal laws during his residence in China till September 25, 2013” (CB 224).
In the NOICC, the Delegate advised the First Applicant of the following (CB 305):
The department received confirmation from the Chinese authorities that your police clearance has been fraudulently altered. The genuine Notarial Certificate for non-criminal, (2013) SEZ.ZI, No. 1116 was issued to a different person by a different notary officer. Further, the notary officer, Yang Shudong, who signed your notary certificate, had retired in February 2011; therefore it was impossible for him to issue you with the notary certificate in 2013.
In addition, the Chinese authorities have provided the department with a Detention Warrant dated 21 August 2007 for your arrest.
The First Applicant was advised by the Delegate that he may comment on the possible non-compliance and give a written response as to why the visa should not be cancelled (CB 305).
On 18 March 2015, the First Applicant, through his legal representatives, sought an extension of time to provide a response to the NOICC on the basis that he was seeking access to information and documents pursuant to the Freedom of Information Act 1982 (Cth) (“FOI Act”) (CB 309-310).
On 1 May 2015 and 7 May 2015, the First Applicant’s legal representatives provided a response to the NOICC (CB 315-357, 361-362).
On 22 May 2015, the Delegate advised the First Applicant that she had decided to exercise her discretion to cancel the visa (CB 368-380).
On 27 May 2015, the First Applicant applied to the Tribunal for review of the Delegate’s decision (CB 383). The application for review was received by the Tribunal on 28 May 2015 (CB 396).
On 2 June 2015, the Minister issued a certificate to the Tribunal under s.375A of the Act (“the First Certificate”)[1] restricting the disclosure of documents the subject of the certificate, other than to the (then) Migration Review Tribunal (“MRT”).
[1] The First Certificate and documents covered by the First Certificate are contained in Exhibits MJG-1 and MJG-2 respectively to the Affidavit of Melissa Jane Gangemi filed on 20 October 2017.
Section 375A of the Act provides as follows:
375A Certain information only to be disclosed to Tribunal
(1) This section applies to a document or information if the Minister:
(a) has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and
(b) has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
(2) If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:
(a) the Secretary must notify the Tribunal in writing that this section applies to the document or information; and
(b) the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.
The First Certificate is headed “CERTIFICATE AND NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION ONLY TO THE MIGRATION REVIEW TRIBUNAL UNDER s 375A OF THE MIGRATION ACT 1958”.[2] The First Certificate certified that the disclosure of any matter or information contained in folios 1 to 42 of the Departmental file “…would be contrary to the public interest because they contain information about investigations by the department’s officers, and information exchanged in-confidence by external agency, disclosure of which may reveal investigation methodology. Furthermore, disclosure of this information may affect future capacity to obtain information using these methods”.[3]
[2] Affidavit of Melissa Jane Gangemi filed on 20 October 2017, Exhibit MJG-1.
[3] Ibid.
On 1 July 2015, by operation of sch.2 item 8 to the Tribunals Amalgamation Act 2015 (Cth) (“the Amalgamation Act”), the names of the Migration Review Tribunal and the Refugee Review Tribunal were changed to the Administrative Appeals Tribunal (“AAT”). The effect of the Amalgamation Act was that reviews under Parts 5 and 7 (Reviewable Decisions) of the Act were now reviewable by the Administrative Appeals Tribunal in its Migration and Refugee Divisions respectively by operation of sch.2 items 26 and 71 to the Amalgamation Act.
On 22 July 2015, the Minister issued a second certificate to the Tribunal under s.375A of the Act (“the Second Certificate”)[4] restricting the disclosure of documents the subject of the certificate, other than to the MRT. The Second Certificate is headed “CERTIFICATE AND NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION ONLY TO THE MIGRATION REVIEW TRIBUNAL UNDER s 375A OF THE MIGRATION ACT 1958”.[5] The Second Certificate certified that the disclosure of any matter or information contained in folios 163 to 164 of the Departmental file “…would be contrary to the public interest because f163 contains a notice which was issued by an international agency which is exchanged in-confidence. Disclosure of the document could jeopardise that agency’s and Australia’s law enforcement programs. F164, F188- 189, F209-228 and F249-257 contain internal information about investigations by the Department’s officers, disclosure of which may reveal investigation methodology”.[6]
[4] The Second Certificate and documents covered by the Second Certificate are contained in Exhibits MJG-3 and MJG-4 respectively to the Affidavit of Melissa Jane Gangemi filed on 20 October 2017.
[5] Affidavit of Melissa Jane Gangemi filed on 20 October 2017, Exhibit MJG-3.
[6] Ibid.
On 24 July 2015, the Tribunal wrote to the Applicants regarding a request received by the Tribunal on 29 June 2015 pursuant to s.362A of the Act for access to written material relating to the Applicants’ applications for review of the Delegate’s decision to cancel the visas (CB 408-410). The Tribunal noted that access had been granted to the material as specified in the letter but further noted as follows (CB 427):
Folios 163, 164, 188, 189, 191, 209 to 228 and 249 to 257 on department file CLF2010/10086 and folios 1 to 42 on department file BCC2014/2242692 are excluded from release because they are subject to a certificate made by the department under section 375A of the Migration Act which certifies their disclosure to be contrary to the public interest.
On 13 August 2015, the Tribunal sent the Applicants an invitation to comment on or respond to certain adverse information (CB 732). The Tribunal again advised the Applicants that it was in possession of documents which the Applicants had sought from it under the FOI Act, but which the Tribunal was unable to release as a whole because the documents were protected under s.375A of the Act (CB 732-734). The letter said “[t]he Tribunal is writing to you to provide you with sufficient information to enable you to meaningfully comment on the adverse information” (CB 732). The adverse information was described in the letter as follows (CB 733):
On 28 August 2014 the Department received confirmation from the Chinese authorities that your police clearance has been fraudulently altered. The authorities advised that the genuine Notarial Certificate for non-criminal, (2013) SEZ.ZI.No.1116 was issued to a different person by a different notary officer. Further, the Chinese authorities advised that the notary officer, Yang Shudong, had retired in February 2011, therefore it was impossible for him to issue you with the notary certificate in 2013.
This information is relevant to the review because it suggests that the Certificate you submitted to the Department is fraudulent. If accepted, this may lead the Tribunal to find that you have presented a bogus document to an officer performing a function or purpose under the Act.
The Applicants were invited to comment on or respond to the information by 27 August 2015 (CB 733). On 20 August 2015, the Applicants’ solicitors provided submissions to the Tribunal (CB 737-740) in which it was stated that the information provided by the Tribunal in the correspondence dated 13 August 2015 was the same as that provided by the Department in the NOICC. The Applicants’ solicitors complained that no further particulars of the information on the basis of which the Chinese authorities had advised the Department that the 2013 Notarial Certificate was non-genuine had been provided. The submissions also dealt with the particular allegations that the First Applicant had caused a bogus document to be provided to the Department, however, clarified that “…this aspect of the letter to the Tribunal should not be considered to be [the First Applicant’s] comments or response to the Invitation to Comment On or Respond to Information dated 13 August 2015” (CB 739).
A hearing was held by the Tribunal on 20 August 2015 (CB 758). By correspondence to the Applicants dated 21 August 2015, the Tribunal noted that at the Tribunal hearing the First Applicant said that he did not have a criminal record in China and, further, that he had obtained a previous Notarial Certificate in support of this when the Applicants applied for Temporary Work (Skilled) (subclass 457) visas (“457 visas”) in 2005-2006 (CB 765). The Tribunal noted that the Applicants had submitted a request under the FOI Act to access documents on the Department files in relation to the 457 visa applications, including the relevant Notarial Certificate, and also referred to email correspondence from the Department dated 14 July 2015, which stated that the relevant files were held in Beijing and may take some time to arrive in Australia (CB 642). The Tribunal stated it considered that the information regarding the previous Notarial Certificate, if obtained, would be relevant to its deliberations regarding the review of the Delegate’s decision to cancel to the visa and, accordingly, advised that the matter had been adjourned pending the Applicants’ receipt of that information
(CB 765).
On 20 November 2015, the Tribunal wrote to the Applicants stating that the Department files relevant to the Applicants’ 457 visa applications had been obtained (CB 788). The correspondence noted that the files did not include a Notarial Certificate for No Criminal Convictions in the First Applicant’s name but that “…[t]he records [did] indicate…that [the First Applicant] satisfied relevant clearances, and that [he] [was] granted the [457] visa on
2 June 2005” (CB 788). The Tribunal also noted that the First Applicant had requested an adjournment of the proceedings to allow him to obtain a current Notarial Certificate for No Criminal Convictions, but noted that to date the Tribunal had not received that information (CB 788). The First Applicant was informed that the information should be received by the Tribunal by 4 December 2015 (CB 788).It should be noted that, at the Tribunal hearing, the Tribunal had before it two Notarial Certificates related to the First Applicant, one dated
23 December 2009 and one dated 16 February 2006 (CB 892 at [77], [78]).
In correspondence dated 3 December 2015 from the Applicants’ solicitors to the Tribunal, detailed complaints were made regarding the Delegate’s conduct in deciding to cancel the Applicants’ visas and the Department’s refusal to comply with an FOI request (CB 791-821). The correspondence also provided detailed submissions with respect to the adverse information identified in the Tribunal’s correspondence to the Applicants dated 13 August 2015 and in support of the Applicants’ argument that there were no grounds for the Tribunal to affirm the Delegate’s decision to cancel the Applicants’ visas.
By memorandum dated 3 December 2015 (extracted in the Applicants’ submissions at CB 817), the Applicants’ solicitors advised the Tribunal that the First Applicant was unable to obtain and provide a current Notarial Certificate for No Criminal Convictions.
On 18 January 2016, the Tribunal made its decision affirming the Delegate’s decision to cancel the Applicants’ visas (CB 882-897).
Tribunal Decision
The Tribunal commenced its consideration about whether the First Applicant had complied with a necessary condition of his visa, namely PIC 4001 (cl.4001 of sch.4 to the Regulations), as follows (CB 884-885 at [20]-[28]):
20. PIC 4001 specifies, relevantly, that the applicant must pass the character test.
21. In order to satisfy the character requirements of PIC 4001, [the First Applicant] was required to provide a police certificate from countries where he had lived for a total of one year or more in the last 10 years.
22. [The First Applicant] declared China as one of the countries where he had lived for a total of one year or more in the last 10 years. The relevant police certificate for China is a ‘Notary Certificate of No Criminal Convictions’.
23. [The First Applicant] submitted a copy of Notarial Certificate for No Criminal Convictions, (2013) SEZ.ZI, No.1116. The Certificate stated:
This is to certify that [the First Applicant] (male, born on February 16, 1963, now residing at 832 Building 10, No.49, Beijing Avenue, Huanggu District, Shenyang City, Liaoning Province) had no record of committing offence against the criminal laws during his residence in China till September 25, 2013.
Notary: Yang Shudong (Signature)
Shenyang Second Notary Public Office (Seal)
Liaoning Province
The People’s Republic of China
September 25, 2013
24. On the basis of the Certificate provided, [the First Applicant] was assessed as meeting the required PIC 4001, and as he satisfied the remaining criteria, he was granted the subclass 801 visa on 7 May 2014.
25. On 28 August 2014 the Department received advice from the Chinese Ministry of Public Security that [the First Applicant’s] police clearance has been fraudulently altered. The Chinese authorities said that the genuine Notarial Certificate for non-criminal, (2013) SEZ.ZI.No.1116 was issued to a different person by a different notary officer. Further, the notary officer, Yang Shudong, had retired in February 2011, therefore it was impossible for him to issue [the First Applicant] with the notary certificate in 2013.
26. [The First Applicant’s] representative wrote to the Tribunal on 13 August 2015 requesting that the Tribunal release specific documents held on the Department’s file. She said that she has sought the release of these documents under FOI, however the Department has refused to release them. She argued that, in the interests of justice, the Tribunal should release the information so that [the First Applicant] can respond to the ‘secret’ information known to the Department and the Tribunal.
27. On 13 August 2015 the Tribunal wrote to [the First Applicant], advising him that it was unable to release the documents he had requested as they are protected under s.375A of the Act. The Tribunal is satisfied that the s.375A certificate is valid. In such circumstances, the Tribunal is obliged to ensure that the information is not disclosed to any person. The information within those folios relates to information about the fraudulent nature of the Certificate.
28. A valid s.375A certificate does not, however override the obligation under s.359A of the Act (see Burton v MIMIA (2005) 149 FCR 20) and the Tribunal may still be required to disclose particulars of the document or information without disclosing the information or document itself. Pursuant to s.359A the Tribunal invited [the First Applicant] to comment on or respond to adverse information by 27 August. The Tribunal is satisfied that it provided [the First Applicant] with sufficient information to enable him to meaningfully comment on the adverse information.
The Tribunal then considered the First Applicant’s evidence that he had asked a friend, who had subsequently disappeared, to obtain the 2013 Notarial Certificate on his behalf (CB 886 at [29]-[32]) and the First Applicant’s claim that the 2013 Notarial Certificate could not be a bogus document because the First Applicant did not have any criminal convictions (CB 887 at [37]). In relation to this latter claim, the Tribunal said “…however s.5(b) only requires that the document be counterfeit or altered by a person who does not have the authority to do so, it does not require the underlying information to be incorrect” (CB 887 at [37]).
The Tribunal found that the First Applicant had caused a bogus document to be provided to the Department on the basis that the 2013 Notarial Certificate was either counterfeit or had been altered by a person who did not have the authority to do so (CB 887 at [38]). Consequently, the Tribunal was satisfied that the First Applicant had failed to comply with a condition of his visa and, therefore, s.109(1) of the Act was engaged.
The Tribunal then proceeded to consider whether it should exercise its discretion to cancel the visa pursuant to s.109(1) of the Act. The Tribunal noted that whilst no matters are prescribed in the Act in relation to the exercise of its discretion, the Tribunal was required to have regard to the First Applicant’s response, if any, to the NOICC (sub-para.109(1)(b) of the Act), and to have regard to any prescribed circumstances (sub-para.109(1)(c) of the Act) (CB 887 at [40]). The Tribunal noted that these prescribed circumstances (as set out in reg.2.41 of the Regulations) were not to be approached as a checklist. The Tribunal also noted that it was required to have regard to Government policy set out in the Department’s Procedures Advice Manual 3 (“PAM3”)‘General visa cancellation powers’, which requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given; whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act; and whether the visa cancellation may result in Australia breaching its international obligations (CB 887-888 at [41]).
The Tribunal noted that the First Applicant submitted that he has no criminal convictions which would prohibit him from satisfying the character test in PIC 4001 (cl.4001 of sch.4 to the Regulations) (CB 888 at [44]). The Tribunal also noted the First Applicant’s submission that if the Tribunal does not have cogent evidence before it that the First Applicant has a criminal record in China, then the Tribunal should conclude that the First Applicant’s application for review should succeed, or, alternatively, the Tribunal should assist the First Applicant to obtain a current certificate (CB 888 at [44]). The Tribunal said that it rejected the suggestion that it should assist the First Applicant to obtain a current certificate as it was up to the First Applicant to make his own case (CB 888 at [44]).
The Tribunal said that it had considered the First Applicant’s claim that “…as [the First Applicant] ha[d] not departed Australia since his arrival on 22 June 2005, he was not required to provide a new penal certificate from China in respect of his Subclass 820 and 801 visas, as at the relevant time [the First Applicant] had not lived in China for an accumulative period of 12 months or more since being granted his subclass 457 visa” (CB 888 at [46]). In response to this submission, the Tribunal said as follows (CB 888 at [47]):
47. To have met PIC 4001 the applicant must have positively satisfied the Minister that he passed the Character Test contained in s.501 of the Act. The longstanding administrative practice of the Department was, as in this case, to request that applicants provide police clearances and criminal histories from countries where they resided so that decision makers can assess applicants’ ability to satisfy PIC 4001 (see Explanatory Statement to SLI 2014, No.199 at p.10-11). While it may have been theoretically possible the applicant would have been found to satisfy the Character Test at that time without the provision of a Certificate from China,[7] it is clear that the provision of what appeared to be a positive Certificate was relied upon to satisfy the delegate that he passed the Character Test.
(footnote in original)
[7] At the time of the visa decision in this case, the additional criterion in r.2.03AA for police clearances was not in place. It inserted by Migration Amendment (2014 Measures No.2) Regulation 2014 (SLI 2014 No.199) from 12 December 2014.
In relation to the First Applicant’s submission that there was no evidence before the Tribunal that the First Applicant has a criminal record and that, therefore, the Tribunal has no reason for affirming the Delegate’s decision to cancel the visa, the Tribunal acknowledged that the issue of whether the First Applicant has criminal convictions can be considered relevant to the exercise of the discretion to cancel the visa (CB 891 at [73]). The Tribunal said that it gave weight to the fact that there was no evidence before it that the First Applicant had conducted himself otherwise than in a lawful manner whilst in Australia (CB 891-892 at [73]).
The Tribunal noted that one of the documents released to the Applicants by the Department under FOI on 15 April 2015 (CB 535-560) included a copy of a Chinese Detention Warrant dated
21 August 2007 (CB 547) ordering investigators to arrest the First Applicant. The Tribunal stated that it accepted that this evidence indicated that the First Applicant had been wanted for questioning by Chinese authorities since 2007 (CB 892 at [75]).
The Tribunal considered the First Applicant’s submission that as the Notarial Certificate dated 16 February 2006 stated that the First Applicant had no criminal conviction(s), this certificate was unequivocal evidence that the First Applicant had no criminal conviction(s) in China (CB 892 at [78]). The Tribunal also again considered the First Applicant’s submission that “…as [the First Applicant] ha[d] not departed Australia since his arrival on 22 June 2005, he was not required to provide a new penal certificate from China in respect of his Subclass 820 and 801 visas, as at the relevant time [the First Applicant] had not lived in China for an accumulative period of 12 months or more since being granted his subclass 457 visa” (CB 888 at [46]). With respect to these arguments, the Tribunal said as follows (CB 892-893 at [79]-[85]):
79. The Tribunal does not accept these arguments. The Tribunal acknowledges that the Certificate No 2243 indicates that [the First Applicant] did not have recorded criminal convictions as at 22 June 2006, and that the Certificate No 52379 indicates that [the First Applicant] did not have recorded criminal convictions as at 18 December 2009. However the Certificates are not evidence that [the First Applicant] did not have criminal convictions at the time the fraudulent Certificate No.1116 was obtained in September 2013, or that he currently does not have criminal convictions.
80. It is the Tribunal’s view that [the First Applicant’s] actions since 2007 suggest that he was aware that he either had convictions or was wanted for questioning in China. [The First Applicant] has not visited China since 2006, even though his extended family lives in China and his wife has spent a total of 11 months in China since 2013. Further, [the First Applicant] asked a ‘friend’ to obtain his Notarial Certificate for him, rather than return to China to obtain it himself. Such behaviour suggests that [the First Applicant] has been aware for some time that he will be subject to investigation and/or prosecution if he returns to China. This leads the Tribunal to conclude that [the First Applicant] submitted a bogus Certificate because he knew he would be unable to obtain a genuine Certificate from authorities.
81. The Tribunal notes that Q32 in the Personal particulars for character assessment Forms 80, signed by [the First Applicant] on 17 January 2010 and 4 January 2012, asks ‘Are you, or any other person included in his application, aware of any proceedings pending against you overseas or in Australia for an offence, including proceedings by way of appeal or review?’. [The First Applicant] answered no to this question. In the context of a detention warrant issued in 2007 and other evidence that [the First Applicant] was aware that he was wanted by Chinese authorities, the Tribunal considers that [the First Applicant] did not answer Q32 truthfully.
82. The fact is that there is no independent evidence to corroborate [the First Applicant’s] claim that he did not have criminal convictions in China on September 2013, or that he currently does not have criminal convictions in China. The issuing of Notarial Certificates in China is a routine matter, and there is no country information before the Tribunal that Certificates are not issued to those suspected of being involved in criminal activity. The Tribunal has had regard to information from Criminal Records Search.com, a company which provides criminal and civil records searching, degree verification and employment verification in China, which states that:
Persons should apply for a certificate of no criminal record at the local Public Security Bureau (PSB) (or certain types of employers such as state owned enterprises), then make application to the notary office for a certificate based on the PSB document. Persons without a criminal record will be able to obtain a certificate to that effect. Certificates for individuals with one or more criminal convictions will list all convictions for which records still exist. The certificates purport to reflect all criminal convictions during residence in China. Police records are generally not available for the period prior to 1949. Notarial police certificates are based in part upon records from an individual’s employer. If an employer refuses to release records, the notarial office is not able to issue a certificate.[8]
83. The Tribunal places weight on the evidence that [the First Applicant] obtained a Certificate in December 2009 advising of no criminal convictions, despite a detention warrant being issued in 2007. If that Certificate was authentic, this indicates that Chinese authorities do issue a Certificate of no convictions even if a person is under investigation for an offence.
84. The Tribunal rejects the claim that [the First Applicant] was not required to provide a new Certificate in respect of his Subclass 820 and 801 visa applications. The Department’s advice to [the First Applicant] in a letter dated 30 March 2010 is that a Police clearance is required from countries where he has lived for a total of one year or more in the last 10 years. As at March 2010, [the First Applicant] had lived in Australia for 5 years (2005-2010) and in China for 5 years (2000 – 2005), therefore he was required to provide a Police clearance from China and from Australia.
85. For the reasons given, the Tribunal finds that there is no evidence before it that [the First Applicant] either has, or does not have, a criminal record.
(footnote and emphasis in original)
[8] Criminal-Records-Search.com 2015, China Police Record < >
Relevantly, the Tribunal later said as follows (CB 896 at [94]):
94. The Tribunal notes that [the First Applicant’s] response to the Notice of Intention to consider cancellation under s.109 of the Migration Act 1958 (NOICC), refers to emails between officers to [the First Applicant] being the subject of an Interpol Notice which has not been released to [the First Applicant]. In the decision record, the Delegate states that, as the Interpol Red Notice is not the subject of non-compliance in the NOICC, it is considered irrelevant in this consideration. The Tribunal also gives no weight to the Interpol Notice as it neither confirms nor refutes [the First Applicant’s] claim that he has no criminal convictions in China.
With respect to its overall assessment, the Tribunal said as follows
(CB 897 at [100]):
100. The character test is integral to the assessment of visa applications. Having considered the totality of the evidence, the Tribunal does not accept that the family’s circumstances as described above are such that they outweigh the Tribunal’s concern that [the First Applicant] submitted a bogus document, and that his permanent visa was approved in part on the basis of this document.
Judicial Review
Ground One
Ground One of the Applicants’ amended grounds for judicial review is concerned with the Tribunal’s exercise of its discretion under s.109 of the Act to affirm the Delegate’s decision to cancel the visa.
Ground One of the Applicants’ amended grounds for judicial review is as follows:
1. The Second Respondent (“the Tribunal”) failed to accord procedural fairness to the Applicants and thereby erred in the exercise of its jurisdiction to review the decision of a delegate of the First Respondent.
Particulars
(a) The First Respondent provided the Tribunal with two certificates and documents under s 375A of the Migration Act 1958 (“the Act”) requiring the Tribunal not to disclose the documents covered by the certificates to the Applicants, some of which were relevant or potentially relevant to the issues arising on the review.
(b) The Tribunal advised the Applicants by written “invitation to comment on or respond to information” dated 13 August 2015, that it was in possession of documents which the Applicants had sought from the Department, but which could not be released as a whole, as they were protected under s 375A of the Act.
(c) The Tribunal purported to provide the Applicants with sufficient information to enable them to meaningfully comment on this adverse information. The extent of the information disclosed was limited to the circumstances already generally revealed to the Applicant about the Department’s inquiries and findings on the allegation that the First Applicant had provided the Department with a bogus document.
(d) The Tribunal did not disclose to the Applicants at the hearing or otherwise there were two certificates issued under s 375A of the Act, covering more extensive adverse information than was revealed by the Tribunal.
(e) The Tribunal did not give the Applicants either of the two certificates pursuant to s 375 of the Act.
In summary, the Applicants’ submission is that the First Applicant was denied the opportunity to present his case at the Tribunal hearing in support of his application for the visa because:
a)the Tribunal failed to disclose the existence of the Second Certificate issued on 22 July 2015;
b)the Tribunal failed to provide the Applicants with sufficient information to enable them to meaningfully comment on the adverse information contained in the documents covered by the First and Second Certificates and, thereby, denied the Applicants the opportunity to meaningfully participate in the review process; and
c)the Applicants were denied the opportunity to argue that the Second Certificate was, in the circumstances, invalid.
The Applicants submit that the Tribunal did not disclose to them that there were two certificates issued by the Minister under s.375A of the Act, covering more extensive adverse information than the Tribunal had revealed. The Applicants submit that they were only made aware that two certificates had been issued under s.375A of the Act through the disclosure of the documents held by the Tribunal under those certificates by the Minister’s legal representatives for the purposes of the proceedings before this Court. The Applicants submit that the Tribunal’s statement in its decision record that “…the s.375A certificate is valid…” (CB 885 at [27]), was apt to, and did, mislead the Applicants into believing that there was only one certificate.
The Applicants submit that the adverse information identified in the Tribunal’s letter to the Applicants dated 13 August 2015 conveyed no further information than that conveyed in the Delegate’s NOICC sent to the Applicants on 10 March 2015. The Applicants submit that the correspondence sent by the Tribunal on 13 August 2015 therefore did not fully disclose the adverse information contained in the documents that were the subject of the First and Second Certificates.
The Applicants submit that among the documents in the possession of the Tribunal were other documents which were adverse and were relevant, or potentially relevant, to the issues arising on the review. In particular, Counsel for the Applicants argued at the hearing before this Court that there were documents which said that the First Applicant may be “dangerous” and documents about the Department’s investigation of the genuineness of the relationship between the First Applicant and his wife, which had occurred prior to the granting of the visa.
Counsel for the Applicants identified the following documents covered by the two certificates which refer to the First Applicant as a dangerous person:
a)a document covered by the First Certificate, an internal Department email dated 5 March 2015, stating that “[t]he MAL alert for a/n the Chinese fugitive you have asked me to pursue with canx onshore has this: ‘WARNING: THIS PERSON MAY BE DANGEROUS’”;[9]
b)a document covered by the Second Certificate, an internal Department email from a Character Program Management Section officer dated 7 March 2012, stating as follows:[10]
[9] Affidavit of Melissa Jane Gangemi filed on 20 October 2017, Exhibit MJG-2 at 37.
[10] Ibid Exhibit MJG-4 at 54.
I have attached an IRN for a client who has applied for permanent residency on spouse grounds.
The client, [the First Applicant], is not one of the cases the MPS has a particular interest in, but the notice has the following reference at the top: ‘Warning, this person may be dangerous’.
As is standard with these cases, unless there is anything other than the IRN to indicate a criminal record, then the IRN cannot be considered as part of the character assessment.
An additional document identified by Counsel for the Applicants that was covered by the First and Second Certificates is an Interpol Red Notice (“IRN”). Counsel for the Applicants submits that the IRN is significant and is adverse information in respect of which the First Applicant was denied the opportunity to respond to or comment on as a result of the Tribunal’s non-disclosure. Counsel for the Applicants submits that this Court cannot have confidence in the Tribunal’s statement in its decision record that it gave no weight to the IRN (CB 896 at [94]). Counsel for the Applicants submits that it would in fact be impossible to be confident that such a significant piece of information did not influence the Tribunal’s consideration about whether to exercise its discretion to cancel the visa.
Counsel for the Applicants further submits that if the Tribunal had revealed that it had two certificates in its possession, the Applicants would have been alerted to the (correct) conclusion that the Tribunal had documents involving more matters than it had disclosed to the Applicants on 13 August 2015.
Counsel for the Applicants submits that the Second Certificate was arguably invalid for the reason that it was directed to “The District Registrar” of the MRT, an entity which was no longer in existence, and in its terms restricted the disclosure of information to the MRT. Relying on the decision in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183 (“Singh”) at [46] (extracted at [61] below), Counsel for the Applicants submits that the Applicants were denied the opportunity to argue before the Tribunal that the Second Certificate was invalid.
In response, the Minister submits, firstly, that the Applicants were, in effect, aware of the existence of both the First and Second Certificates. The Minister argues that by reason of the Department’s response dated
24 July 2015 to the Applicants’ FOI request made pursuant to s.362A of the Act (CB 427, see relevant extract at [22] above), the Applicants were made aware of all documents that were subject to the certificates issued by the Minister under s.375A of the Act. The Minister relies on the approach of Judge Manousaridis in Chahin & Anor v Minister for Immigration & Anor(No.2) [2017] FCCA 2097 (“Chahin”) at [24]-[25] in support of this argument.
As to the Applicants’ submissions regarding the invalidity of the Second Certificate, the Minister notes that the Applicants do not effectively challenge the validity of the Second Certificate because they do not disclose the basis for public interest immunity. The Minister submits that the Applicants have not articulated how it can be said that the reference to the MRT, and not the AAT, in the Second Certificate provides a basis to render the Second Certificate invalid. The Minister further notes that the Amalgamation Act had the effect of substituting all references to the MRT in the Act with the name of the AAT by operation of sch.2 item 8 to the Amalgamation Act (see [20] above).
The Minister submits that there is no basis for the Applicants’ argument that the First Applicant was denied procedural fairness by reason of the Tribunal’s failure to disclose the existence of the Second Certificate or to fully disclose information covered by the First and Second Certificates. The Minister contends that the information identified by the Applicants which was not disclosed by the Tribunal does not give rise to practical injustice (see Minister for Immigration and Border Protection v WZARH(2015) 256 CLR 326; [2015] HCA 40 (“WZARH”), per Gageler and Gordon JJ at [57]).
With respect to the information expressly identified by the Applicants as information in the documents stating that the First Applicant may be dangerous, the Minister notes that this information is contained in an IRN, which is contained in folio 163 of the s.375A documents covered by the Second Certificate. The Minister notes that by way of the Affidavit of Melissa Jane Gangemi filed on 20 October 2017, the Minister’s solicitors stated that the Minister would seek to claim public interest immunity over this document.[11] The Minister further notes that the Applicants have indicated that they do not require the Minister to substantiate this claim. The Minister submits that this is an acknowledgement by the Applicants that the IRN is a document of such sensitivity that its disclosure would not be in the public interest.
[11] Ibid at [13]-[14].
The Minister also submits that the Tribunal expressly referred to the IRN in its decision record and said that it gave no weight to the IRN “…as it neither confirms nor refutes [the First Applicant’s] claim that he has no criminal convictions in China” (CB 896 at [94]).
The Minister submits that in circumstances where the IRN is clearly a sensitive document and where the Tribunal expressly stated in its decision record that it gave no weight to that document, it cannot be said that the Tribunal breached its procedural fairness obligations by failing to disclose the contents of that document to the Applicants.
With respect to the documents relating to the Department’s investigations into the genuineness of the relationship between the First Applicant and his former spouse, which were identified by the Applicants as documents which were not disclosed to them by the Tribunal, the Minister submits that they have no relevance to the issues arising on review. The Minister further submits that to the extent that those investigations formed the basis for the initial grant of the visa, it can be concluded that the Department was in fact satisfied of the genuineness of the relationship between the First Applicant and his former spouse.
Consideration
The hearing of this matter preceded three decisions of the Full Court of the Federal Court of Australia, each of which set down relevant principles with respect to the question of non-disclosure of certificates restricting the release of documents by a Tribunal to a review applicant; the admissibility of documents covered by certificates in judicial review proceedings; as well as the relevance of “practical injustice” in determining whether failure to disclose the existence of certificates and information the subject of certificates amounts to procedural unfairness giving rise to jurisdictional error.
All three Full Court decisions were concerned with the application of s.438 of the Act. As noted by the Full Court of the Federal Court in Singh, s.438 of the Act has analogous, although not identical, provisions to s.375A of the Act. In particular, s.438(3)(b) of the Act permits what s.375A of the Act does not; namely, the disclosure to an applicant of material the subject of a certificate (Singh at [24]). In Singh, the Full Court held that s.375A(2) of the Act is no impediment to an applicant’s argument that general notions of procedural fairness might require the disclosure of documents the subject of a certificate (Singh at [40],[58]).
In these proceedings, save for folio 163 of the documents covered by the Second Certificate, all the documents covered by the First and Second Certificates were received into evidence.
In Singh, the Full Court of the Federal Court said at [46]:
46. There may be other ways that the problem may be approached. It is not necessary for the purposes of this appeal to enter upon these matters, which have not been argued before us. This is because, on the assumption that the Tribunal does have the authority to decide the issue of the certificate’s validity, it is plain that it must disclose the certificate to an applicant to allow a submission to be made that the certificate is invalid. The existence of a s 375A certificate affects, in a material way, the Tribunal’s procedural fairness obligations. Therefore, the issue affects the applicant’s interests in the requisite sense, and the Tribunal can (on this hypothesis) act upon a submission going to invalidity.
The Full Court in Singh acknowledged that confidentiality concerns, especially those relating to matters of public interest immunity, may have the effect of limiting the scope of the hearing rule (Singh at [53]). The Full Court then said as follows (Singh at [56]):
56. It is plain that s 375A is the leading provision. In cases of true conflict it is s 375A, therefore, which will prevail. Davis likewise reflects an assumption that s 375A is the leading provision. To the extent, however, that Davis stands for the proposition that s 375A has the effect that s 359A never gives rise to an obligation to provide particulars about the document or information certified, we do not agree. Whilst direct conflict between ss 359A and 375A will result in the latter prevailing, it is by no means inevitable that the aims of both provisions cannot usually be served without conflict.
Accordingly, the decisions of the Full Court of the Federal Court, so far as they deal with the question of procedural fairness under s.438 of the Act, are relevant to these proceedings.
The question confronting the Full Court of the Federal Court in Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 (“BJN16”) was whether documents containing information subject to a confidential certificate issued under Pt 7 of the Act were admissible as evidence in this Court’s judicial review proceedings. The Full Court held that they were. In the course of the judgment, their Honours reviewed the authorities regarding non-disclosure by the Tribunal of the existence of certificates to protection visa applicants seeking merits review.
Relevantly, their Honours said as follows (BJN16 at [62]-[64] ):
62 . The documents which the Minister sought to tender before the FCC had been provided to the Tribunal by the Secretary prior to the hearing of BJN16’s case. They were, therefore, documents which the Secretary considered to be relevant to the review: see s 418. It may be assumed, as did Beach J in MZAFZ, in the absence of evidence to the contrary, that the Tribunal had had regard to the documents when coming to its decision. As a general rule, such material is treated as being relevant for the purposes of judicial review: see Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540; [1989] FCA 202 at pp 6-9 (Lockhart J).
63 . It may be accepted that the non-disclosure by the Tribunal of the existence of a certificate, given under s 438 of the Act, may give rise to a denial of procedural fairness. It does not follow that this will always be the case. It will be necessary, in each case, for all the circumstances and the consequences for the applicant of the omission to be examined.
64 . Both parties relied on the dictum of Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 343; [2015] HCA 40 at [60] that:
denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.
Their Honours in BJN16 later considered the concept of “practical injustice” as applied in decisions of this Court and by Barker J in AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 (“AVO15”) and stated as follows (BJN16 at [73]-[76]):
73. There are numerous cases in which FCC judges have received evidence and examined such documents and gone on to hold that the failure to disclose the existence of the notification did not give rise to a denial of procedural fairness. Many of them preceded the trial judge’s decision in the present proceeding: see, for example, BZV15 v Minister for Immigration and Border Protection [2017] FCCA 981; ALP15 v Minister for Immigration and Border Protection [2017] FCCA 1418; SZMJM v Minister for Immigration and Border Protection [2016] FCCA 2884; SZVCP v Minister for Immigration and Border Protection [2016] FCCA 3333; DBF16 v Minister for Immigration and Border Protection [2016] FCCA 3291; BIE15 v Minister for Immigration and Border Protection [2016] FCCA 2978; BEG15 v Minister for Immigration and Border Protection (2016) 315 FLR 196; [2016] FCCA 2778; and BJD16 v Minister for Immigration and Border Protection [2016] FCCA 2537. In each of these cases the FCC received the documents, covered by the relevant s 438(1) notification, into evidence. In most cases the documents had been exhibited to a solicitor’s affidavit and had been read without objection by the applicant. In one case the Minister had simply incorporated the documents in the court book prepared prior to trial: see DBF16 at [36]. In each of these cases MZAFZ was distinguished. In those cases which post-dated delivery of judgment in Singh, that judgment too was held not to prevent the FCC from examining the documents and taking them into account for the purpose of determining whether the fact that the documents had been before the Tribunal without the knowledge of the applicant had given rise to any practical injustice to the applicant.
74. For the most part this conclusion was reached in these cases because the material in the documents was found to be completely irrelevant to the issues which fell for the Tribunal’s decision. In BZV15, for example, the material was found to be of a “most mundane character” (at [48]) and was “of the most anodyne nature and did not contain any information adverse to the applicant or [which was] otherwise relevant to the issues that the Tribunal was required to consider” (at [50]). In BEG15, the documents covered by the certificate recorded legal advice about errors in an earlier Tribunal decision which had led the Minister to agree to orders setting aside that Tribunal’s decision. In another judgment, delivered today, we have dismissed an appeal from this decision: BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198. In another case (CQH16 v Minister for Immigration and Border Protection [2017] FCCA 1498), decided on the same day as the FCC’s decision in this case, the documents covered by the certificate revealed that the Minister’s delegate had utilised an incorrect template when making her decision. Because the Tribunal had conducted a full re-hearing and made a fresh decision on the merits, it was found that the applicant had been in no way prejudiced by the failure of the Tribunal to disclose the existence of the certificate or the contents of the document covered by it.
75. To these examples may be added the decision of Barker J, in this Court, in AVO15 v Minister for Immigration and Border Protection [2017] FCA 566. In that case a certificate had been issued under s 438(1)(a) in respect of five documents. The existence of the certificate and the documents covered by it was not disclosed to the applicant by the Tribunal. The applicant sought judicial review of the Tribunal’s decision. He did not rely on this failure in seeking review in the FCC. The FCC dismissed his application and he then sought leave to appeal from that decision in this Court. Again, he did not raise the issue. Nonetheless, the Minister, as a model litigant, drew the Court’s attention to MZAFZ and Singh and tendered the certificate and the related documents to the Court. The applicant, who was not legally represented, did not object to the Court receiving the documents. Barker J examined them. Two were departmental internal working documents which, his Honour found, could have had no or only passing contextual relevance to the application. Two other documents dealt with the granting of a bridging visa to the applicant. The fifth document was what was described (at [89]) as “an outcome notification which resulted in [a] reconstituted Tribunal hearing.” In these circumstances his Honour found (at [90]) that “the jurisdictional error principles and outcomes disclosed in MZAFZ and Singh have no practical application in this case.” He also held that, even if there may have been some technical breach of disclosure obligations arising under the Act, it did not deprive the applicant of any opportunity to advance his case. No practical injustice arose: see AVO15 at [87]-[91]. In the circumstances, his Honour dismissed the application for leave to appeal the judgment of the FCC.
76. These decisions, of course, all turned on their own facts. In most, the decision to issue a notification under s 438 may be open to question. They do, however, gainsay the proposition that the reviewing court should never receive in evidence and consider documents covered by s 438 notifications.
In BEG15vMinister for Immigration and Border Protection [2017] FCAFC 198 (“BEG15”), the certificates issued under s.438 of the Act were neither valid nor disclosed to the Applicant. The members of the Full Court of the Federal Court in BEG15 were the same as those in BJN16. In BEG15, their Honours noted that the primary judge had made findings “…[leading] him to the conclusion that the documents did not contain any material which was prejudicial to [the Appellant’s] interests, that the Tribunal had not acted on the material and that, in the circumstances, he would have, in any event, exercised his discretion to refuse relief” (BEG15 at [32]). The Full Court held, dismissing the appeal, that these findings and conclusions were open to the primary judge and said that “…[n]either the invalidity of the certificate nor the failure by the Tribunal to provide [the Appellant] with a copy of it or the documents referred to in it gave rise to any practical injustice to him for the reasons given by the primary judge” (BEG15 at [33]).
In light of this, in my opinion, the second limb of the Applicants’ argument, that the Tribunal made an erroneous finding that there was no independent corroborative evidence that the First Applicant did not have criminal convictions in China, is simply an invitation to the Court to engage in impermissible merits review.
The Applicants’ submission that the Tribunal placed no weight on a “clear” Notarial Certificate dated 2009 is simply wrong. This is evident from the Tribunal’s decision record where it said as follows (CB 893 at [83]):
83. The Tribunal places weight on the evidence that [the First Applicant] obtained a Certificate in December 2009 advising of no criminal convictions, despite a detention warrant being issued in 2007. If that Certificate was authentic, this indicates that Chinese authorities do issue a Certificate of no convictions even if a person is under investigation for an offence.
Finally, as the Minister has pointed out in its written submissions, the Tribunal’s finding, which the Applicants seek to impugn, that “…there is no independent evidence to corroborate [the First Applicant’s] claim that he did not have criminal convictions in China on September 2013, or that he currently does not have criminal convictions in China” (CB 893 at [82]), forms part of the reasoning in which the Tribunal considered claims made by the Applicants’ solicitors that the First Applicant in fact had no criminal record and that, therefore, the authenticity of the 2013 Notarial Certificate does not warrant the cancellation of the Applicants’ visas. At the commencement of its consideration of this claim that the First Applicant had no criminal record, the Tribunal stated that the issue before it was not whether the First Applicant had a criminal conviction but, rather, whether the First Applicant had provided a bogus document to the Department (CB 891 at [72]).
Accordingly, I find no jurisdictional error arises in relation to Ground Five of the Applicants’ amended grounds for judicial review.
Conclusion
For the reasons set out in this judgment, I will make an order dismissing the Applicants’ amended application for judicial review filed on 14 November 2017. An order will also be made that the Applicants pay the First Respondent’s costs in a fixed amount.
I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 30 April 2018
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