Zhong v Minister for Immigration and Citizenship [2008] FCA 507
MIGRATION – where Notice of Intention to Consider Cancellation sent pursuant to s 107 – whether a notice issued under s 107 must assert that the delegate or Minister considers the visa holder has not complied – whether the delegate had concluded the appellant did not comply with the requirements of the Act before sending a notice pursuant to s 107 – whether the notice was sufficiently particularised – whether the Tribunal was required to specifically consider reg 2.14(k) – appeal allowed.
WEI ZHONG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 1467 OF 2007
LANDER J 21 APRIL 2008 ADELAIDE (HEARD IN SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1467 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
WEI ZHONG Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
MIGRATION REVIEW TRIBUNAL Second Respondent
JUDGE:
LANDER J
DATE OF ORDER:
21 APRIL 2008
WHERE MADE:
ADELAIDE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The order of the Federal Magistrates Court made on 6 July 2007 be set aside and in lieu thereof:
(a)there be an order quashing the decision of the second respondent made on 11 May 2006;
(b)there be an order remitting the applicant’s application for review of the decision made by the delegate of the first respondent on 30 July 2003 to the second respondent for hearing according to law;
(c)the first respondent pay the applicant’s costs.
3.The first respondent pay the appellant’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
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1467 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
WEI ZHONG Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
MIGRATION REVIEW TRIBUNAL Second Respondent
JUDGE:
LANDER J
DATE:
21 APRIL 2008
PLACE:
ADELAIDE (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
Introduction
This is an appeal against an order of a Federal Magistrate made on 6 July 2007 dismissing the appellant’s application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) made on 11 May 2006 and handed down on 31 May 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to cancel the appellant’s Preferential Relative (Migrant) (Class AY)…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Zhong v MIAC [2008] FCA 507
Case
[2008] FCA 507
Decision Date
CaseChat Overview and Summary
In Zhong v MIAC, the appellant, a citizen of the People’s Republic of China, appealed against the decision of the Federal Magistrates Court which dismissed his appeal against the decision of the second respondent to cancel his visa under the Migration Act 1958 (Cth). The appellant had lodged an application for a visa on remaining relative grounds and had entered Australia on 9 April 2002. The Tribunal considered the Notice of Intention to Consider Cancellation and found that it complied with section 107 and identified the breach of section 101 with appropriate particularity. The Tribunal accepted that when the appellant submitted his application for a visa he correctly answered the question that he did not have a child because the child was born after the application was lodged. However, the Tribunal was of the view that his subsequent answer to the Australian Consulate on 17 September 2001 meant that the appellant had failed to comply with section 99. The appellant argued that section 99 had no application to the interview in September 2001 because section 99 only applied in circumstances where an answer was given to the Minister or an officer or person or Tribunal reviewing a decision under the Act. The Tribunal rejected this argument and held that section 99 applied to any information given to the Minister or Tribunal, whether orally or in writing, at an interview or otherwise. The Tribunal found that the appellant had failed to comply with section 99 and the appeal was dismissed.
The court was required to decide whether the Tribunal’s finding that the appellant had failed to comply with section 99 was correct and whether the cancellation of the appellant’s visa was lawful. The court held that the Tribunal’s finding was correct and that the cancellation of the appellant’s visa was lawful. The court noted that the appellant had failed to disclose the birth of his child to the Australian Consulate in September 2001, which was a breach of section 99. The court also noted that the appellant had provided financial support to his child and had some say in how he was looked after, which meant that his child was a dependent child of his. However, the court held that the appellant’s failure to disclose the birth of his child was a serious breach of section 99 and that the cancellation of his visa was justified. The court also held that the Tribunal’s decision to dismiss the appeal was correct and that the orders of the Federal Magistrates Court should be set aside and replaced with orders quashing the decision of the second respondent and remitting the appellant’s application for review of the decision made by the delegate of the first respondent to the second respondent for hearing according to law. The court also ordered that the first respondent pay the appellant’s costs of the appeal.
Orders
Orders of the court
1. The appeal be allowed.
2. The order of the Federal Magistrates Court made on 6 July 2007 be set aside and in lieu thereof:
(a) there be an order quashing the decision of the second respondent made on 11 May 2006;
(b) there be an order remitting the applicant’s application for review of the decision made by the delegate of the first respondent on 30 July 2003 to the second respondent for hearing according to law;
(c) the first respondent pay the applicant’s costs.
3. The first respondent pay the appellant’s costs of the appeal.
Background
Background to the litigation
Section 107 provides:(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:(a) giving particulars of the possible non-compliance; and(b)stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:(i) if the holder disputes that there was non-compliance:(A) shows that there was compliance; and(B)in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance—shows cause why the visa should not be cancelled; or(ii) if the holder accepts that there was non-compliance:(A) give reasons for the non-compliance; and(B)shows cause why the visa should not be cancelled; and(c) stating that the Minister will consider cancelling the visa:(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or(ii)if the holder gives the Minister a written response within that period—when the response is given; or(iii)otherwise—at the end of that period; and(d) setting out the effect of sections 108, 109, 111 and 112; and(e)informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and(f)requiring the holder:(i)to tell the Minister the address at which the holder is living; and(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non-compliance by the holder—to tell the Minister the changed address.(1A)The period to be stated in the notice under subsection (1) must be:(a)in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or(b)otherwise—14 days.(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:(a)visas of a stated class; or(b)visa holders in stated circumstances; or(c)visa holders in a stated class of people (who may be visa holders in a particular place); or(d)visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.Background The appellant was born on 23 May 1968 and is a citizen of the People’s Republic of China. On 25 September 1998 the appellant lodged an application with the then Department of Immigration and Multicultural Affairs (the Department) for a visa on remaining relative grounds, as the last remaining family member not yet in Australia. The visa was granted on 26 March 2002 and the appellant entered Australia on 9 April 2002.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
LANDER J
In relation to the support given to his child, he wrote:Although I did not physically look after Baoli Lu, and did not physically control him (I mean, for example, face to face, body touch the body), Baoli Lu’s life substantially relies on my financial support every day. Due to Baoli’s mother broke Chinese birth control policy she lost her job, and sequentially was not able to financially afford him. Thus I have to provide financial support to Baoli. I care and control Baoli through undertaking financial commitment. According to the principle of comparative advantage we know that in developing (poor) country, especially in China, capital factor or money, the rare resource is more important than labor factor or labor work, the fruitful resource. I believe that my financial support (money) for Baoli’s subsistence is also very important.In addition, I had some say in how he was looked after. I often enquired Baoli’s uncle, Zhida for Baoli’s situation. I always asked Zhida to convey my greeting to Baoli, and do pass my opinion for teaching child to Baoli’s mother. Sometimes I advised Suyun Lu to be patient through the phone, told her how to teach the boy when Baoli was naughty, and also told her how to give Baoli a good early stage children education. Occasionally I talked with Baoli through the phone or directly, and influenced him.Therefore, generally speaking Baoli is a dependent child of mine.The Tribunal’s Decision The Tribunal considered the Notice of Intention to Consider Cancellation and found that it complied with s 107 and identified the breach of s 101 with appropriate particularity. The Tribunal accepted that when the appellant submitted his application for a visa he correctly answered the question that he did not have a child because the child was born after the application was lodged. The Tribunal, however, was of the view that his subsequent answer to the Australian Consulate on 17 September 2001 meant that the appellant had failed to comply with s 99. In answer to the contention that s 99 had no application to the interview in September 2001 because s 99 only applied in circumstances where an answer was given to the Minister or an officer or person or Tribunal reviewing a decision under the Act, the Tribunal said:96. In relation to the submission regarding the information in the notice relating to the review applicant’s child (who was born at the time of the review applicant’s interview with the Australian Consulate in 2001 but not at the time of lodgement of the visa application), s.99 of the Act provides that any information which a non-citizen gives, causes to be given or that is given on his or her behalf to the Minister or Tribunal is taken for the purposes of section 101(b) to be an answer to a question in the non-citizen’s application form, whether the information is given orally or in writing and whether at an interview or otherwise. The Tribunal does not accept the submission that s.99 relates solely to information provided in the process of the review of the decision.