Zhong v Minister for Immigration
[2007] FMCA 1065
•6 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZHONG v MINISTER FOR IMMIRGRATION & ANOR | [2007] FMCA 1065 |
| MIGRATION – Application for Sub-class (Remaining Relative) visa – alleged defect in section 107 notice – alleged failure to comply with s.359A – alleged failure to take into account a relevant consideration – no merit on all grounds – no jurisdictional error – application for review dismissed. |
| Migration Act 1958 (Cth) |
| Szeeu v MIMIA (2006) FCAFC 2 Szeem v MIMA (2005) FMCA 27 Zhao v MIMA (2000) FCA 1235 Minister for Aboriginal Affairs v Peko-Wallsend Ltd 1986) 162 CLR 24 MIMIA v Yusuf 75 ALJR 1105 |
| Applicant: | WEI ZHONG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 1816 of 2006 |
| Judgment of: | Baumann FM |
| Hearing date: | 25 October 2006 |
| Date of last submission: | 15 November 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 6 July 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The name of the First Respondent is changed to the Minister for Immigration and Citizenship.
The Application be dismissed.
The Applicant make a contribution to the costs of the First Respondent fixed in the sum of five thousand dollars ($5,000) within sixty (60) days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
SYG 1816 of 2006
| WEI ZHONG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This Application for Judicial Review was initially filed on 27 June 2006 asserting that the Migration Review Tribunal (“MRT”) had fallen into jurisdictional error. An amended Application filed on 25 October 2006 asserts three grounds for review, namely:-
a)the MRT constructively failed to exercise its jurisdiction or acted in excess of its jurisdiction by affirming the decision under review before complying with s.359A of the Migration Act 1958 (“the Act”).
b)the MRT misapplied the law to the facts or misinterpreted the applicable law.
c)the MRT failed to take into account a relevant consideration in the exercise of its discretion.
Background
I adopt as a succinct and accurate summary of the background paragraph 3 of the Applicant’s Submissions, save to further observe that the Applicant is a national of the People’s Republic of China born on 23 May 1968 (now aged 39) and that the Department’s decision on 7 August 2003 had been affirmed by an earlier decision of a differently constituted MRT on 19 December 2003, however the Federal Court of Australia, by consent, remitted the matter to the MRT on 29 August 2005:-
“3. On 25 September 1998, the Applicant lodged an application for a subclass 104 visa (Remaining Relative). The Applicant was granted a subclass 104 visa on 26 March 2002. Before the visa was granted, the Applicant and his former girlfriend (now his wife) had a child, Lu Bao Li, who was born on 4 June 1999. The Applicant did not notify DIMA of this change of circumstances before visa grant. On 2 June 2003, DIMA issued a letter entitled Notice of Intention to Consider Cancellation Under s109 of the Migration Act 1958, addressed to the Applicant. The Applicant responded, but on 30 July 2003, a decision was made to cancel the visa. The Applicant sought review of the decision before the MRT on 7 August 2003. On 31 May 2006, the MRT affirmed the decision made on 30 July 2003.”
Statutory framework
It is common ground that s.109(1) of the Migration Act 1958 (“the Act”) is the power relied upon for the cancellation of the Applicant’s visa, and provides relevantly 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.”
This discretionary power granted to the Minister clearly requires:-
a)deciding non-compliance by the visa holder under s.108, which relevantly provides:-
“s108. The Minister is to:-
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non-compliance by the visa holder in the way described in the notice.”
b)considering any response to the Notice given in a way required by paragraph 107(1)(b) which provides:-
“107 Notice of incorrect applications
(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.”
c)having regard to any prescribed circumstances, which are those set out in Regulation 2.41 as follows:
“(a) the correct information;
(b) the content of the genuine document (if any);
(c)the likely effect on a decision to grant a visa or immigration the visa holder of the correct information or the genuine document;
(d)the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f)the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g)any other instances of non-compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non-compliance;
(i)any breaches of the law since the non-compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community”
Subdivision C of Division 3 of Part 2 of the Act imposes obligations on non-citizens to provide accurate information and, in particular:
a)an answer to a question is incorrect even though the person who gave the answer or caused the answer to be given did not know that it was incorrect (s100): and
b)a non-citizen must fill the application in such a way “that no incorrect answer is given”
c)there is an obligation on a non-citizen to give notice if there is a change of circumstances “so that an answer to a question on a non-citizen’s application form or an answer under this section is incorrect in the new circumstances” )s104(1))
d)there is an obligation on a non-citizen who becomes aware that an answer, information or response given “was incorrect when it was given” to notify an officer in writing of the incorrectness and of the correct answer “as soon as practicable”
e)sub-sections 104(1) and 105(1) apply despite the grant of the visa.
Clearly the particulars of the s107 Notice are carefully prescribed, and must be sufficient to fairly inform the visa holder of the basis on which the cancellation is being considered (see Zhao v MIMA (2000) FCA 1235 at [29]). I also respectively adopt as accurate the observations summarised and duly attributed by FM Smith in Szeem v MIMA (2005) FMCA 27 at [39].
Reasons of MRT
The Tribunal extensively summarised the Department’s Decision of
30 July 2003 under s.101 of the Act (paragraphs [17] to [27]); the decision of the previously constituted Tribunal (paragraphs [28] to [31]); and the evidence before the present Tribunal including responses to s359A requests dated 30 September 2005 and 16 January 2006.
The MRT held a hearing on 22 March 2006 during which the applicant, his brother and his wife (by telephone from China) gave oral evidence. Further documentary evidence was provided after the hearing, some in response to a further section 359A letter of 6 April 2006.
Under the heading of “FINDINGS AND REASONS” the learned member of the MRT:-
a)gave reasons for finding that the s107 Notice complied with the statutory requirements;
b)found that the Applicant provided incorrect information to a Department Officer on 17 September 2001 when he told the officer he did not have any children. His son BAO LI was born on 4 June 1999;
c)having found non-compliance by the applicant in terms of section 108, the MRT then considered the exercise of the discretion afforded by s109 and exhaustively referred to the prescribed matters set out in regulation 2.41.
after which the MRT recorded its conclusions at paragraphs [147] to [149] in the following terms:
“147. The Tribunal has found that the review applicant knowingly provided incorrect information to the Department in September 2001 and that he did so in order to meet the requirements for a visa for which he would otherwise not have been entitled. The Tribunal has found that if the likely effect of the correct information would have been that the visa would not have been granted. The Tribunal has also found that since that time, the review applicant was aware that false documentation was provided to the Department in relation to his sponsorship of Ms Lu for a spouse visa and that this was done so that his Subclass 104 visa would be unaffected. The Tribunal has also found that following the cancellation the review applicant knowingly provided false information to the Department and the previously constituted Tribunal. The Tribunal has considered that in so doing the review applicant has shown considerable disregard for Australia’s immigration laws. The Tribunal has also found that the review applicant worked in breach of Condition 8101 on his Bridging visas, but has found that in the circumstances that this is not a serious breach. The Tribunal has not accepted that the cancellation will result in a breach of non-refoulment obligations or that Australia will breach any other conventions if the visa is cancelled. The Tribunal has also not accepted that the rights of his child or wife will be seriously affected by the cancellation or that there are any other humanitarian issues raised by the cancellation
148. Against this evidence, the Tribunal has accepted that the review applicant has made some contribution to the community through the payment of tax and that he has been in Australia for a reasonably lengthy period. The Tribunal has also accepted that the review applicant’s mother and brother will be affected to some extent by the cancellation and that his wife wishes to be reunited with her husband and hopes that they can reside together in Australia with their son. The Tribunal has weighed these factors against the extremely adverse findings that the Tribunal has made above regarding the provision of false and misleading evidence and fraudulent documentation. The Tribunal concludes that the adverse circumstances considerably outweigh the circumstances favouring the review applicant in exercising the discretion to cancel his visa.
149. Accordingly, the Tribunal has found that the section 107 notice was valid and that there was non-compliance by the review applicant in the way described in that notice. The Tribunal has considered the review applicant’s responses in relation to that notice and has also had regard to the prescribed circumstances in regulation 2.41. The Tribunal has found that the adverse circumstances in favour of cancelling the visa outweigh the circumstances favouring the review applicant for not cancelling the visa. The Tribunal finds that in all the circumstances the Preferential Relative Subclass 104 visa previously held by the review applicant should remain cancelled.”
Did the Section 107 notice comply with the requirements of the Act
It is common ground that giving a Notice which complies with the description in s.107(1)(a) to (f) is a fundamental prerequisite for the existence of the Minister’s power to decide the issue of non-compliance under s108 which then founds the discretionary power to cancel the visa under s109.
The Applicant particularises the alleged defects in the notice in the Amended Application as follows:
“(i)The MRT did not have the jurisdiction to affirm the decision to cancel the visa because the requisite notice had not been issued before the purported cancellation took place. The MRT found that the notice complied with the Act. The notice was not a notice prescribed by the Act because:
(a)it does not state that the Minister considered that the Applicant might not have not complied with s101, 102, 103 or 104 or 105 of the Act (rather, the letter is framed in the terms of possible non-compliance coming to the Department’s attention: Uddin v MIMIA [2005] FCAFC 218 at [24] and [38]).
(b)the Minister was not considering cancelling the visa (rather, the letter is framed in the terms of possible non-compliance coming to the Department’s attention: Uddin v MIMIA [2005] FCAFC 218 at [24] and [38]).
(c)it does not specify whether, in relation to s101, if s101(a) is relied on, or whether s101(b) is relied on, or both s101(a) and s101(b).
(d)does not clearly set out the particulars for the alleged non-compliance with s101 as it does not state the particulars of the incorrect information that is relied upon to establish the breach.
(ii)In the event that the requisite notice was given, the MRT was constrained in its enquiry to whether, on his Application for Migration to Australia lodged with the Australian Consulate on 25 September 1998:
(a)the Applicant provided incorrect information in relation to his ‘defacto spouse’ on his application for the class 104 visa; and or
(b)the Applicant provided incorrect information in relation to his child on his application for the class 104 visa; and or
Despite that constraint, the MRT relied on information given by the Applicant to a Departmental officer at the Australian Consulate General on 17 September 2001 that he did not have any children.”
Mr Dobbie for the Applicant in well considered and strongly asserted written and oral submissions expanded on these alleged deficiencies in the Notice.
The Form of the Notice is found at page 37 of the Court Book (“CB”). It is a Letter dated 2 June 2003 signed by Department Officer JULIA FRONTINO. The Notice contains the following remarks:
a)an assertion that “It has come to the Department’s attention that you may not have complied with section 101 of the Migration Act…”
b)gave details of part of an interview on 17 September 2001 in which the Applicant denied having any children or of being in a defacto relationship
c)referred to the Notice given on 26 March 2002 granting the visa and also informing the Applicant of his obligation to advise the Department of any change in circumstances.
d)After referring to an Application on 16 January 2003 by the Applicant’s Wife and son to migrate (sponsored by the Applicant) and to an interview with the Applicant’s wife Ms Lu on 7 May 2003, the letter critically says:
“Hence, I am of the opinion, that you may have provided incorrect information on your Application for Migration to Australia. Lodged with the Australian Consulate on 25 September 1998. I also note that in completing the above application form, you failed to provide details of your defacto spouse, Ms Lu, Su. I also note that you failed to provide details of your child LU, Bao Li, who was born on 4 June 1999.
Based on this information, I believe that you may have provided incorrect information in relation to your defacto spouse and your child on your application for the class 104 visa. I also believe that your intentions, prior to the lodgement of the Application for Migration to Australia, may have been to provide incorrect information in order that you would be eligible for the class 104 permanent residence visa.
If you did not comply with section 101, your visa may be cancelled. It does not matter whether you deliberately or inadvertently did not comply.”
e)indicated the Applicant could respond and “gave a written answer why your visa should not be cancelled” and also directed the Applicant’s attention to Regulation 2.41 and the obligations under s.104 and 105 of the Act.
The Applicant relies heavily upon the majority decision in UDDIN. It should be observed that UDDIN was concerned with the requirements of a notice under s119 of the Act, which is in different terms to s.107. There are however some helpful observations in UDDIN.
In supplementary submissions, the Applicant contends that:
“because s107 requires that the Minister considers that the visa holder did not comply, the Minister must regard the visa holder as a person who has not complied with one or more of the relevant sections before a notice can be issued.”
No issue is taken that Julia Frontino held the necessary delegation. In my view the Notice properly recorded her provisional view that the Applicant had not complied with s.101. I use the word “provisional” conscious of the fact that the Act does not do so, however where the stature (s.107(1)(a)) requires the Minister to give particulars “of the possible non-compliance”, that suggests a provisional view of non-compliance has been formed subject to any response being received and considered.
I have carefully considered the submissions made by Mr Dobbie for the Applicant and Mr Kennett for the respondent and have formed the view that:-
a)the requirements of a Notice under s.119(1) are different from those in the present case dealing with a s.107(1) notice.
b)I agree that the opening words in the Notice formed part of the particulars of “possible non-compliance” which the Notice was required to contain.
c)the Applicant contends that the Notice does not set out the subsection of s.101 that is said to be breached. However, the Notice set out the whole of the section which was appropriate because as the Respondent points out; “as appears from the text which follows, the writer considered that the Applicant might have breached both of paras (a) and (b)”.
d)I agree with and adopt the submissions of the Respondent set out at paragraphs 16 to 18 as follows:
“16.On that basis, the writer of the notice expressed an opinion that the Applicant might have:
(a)“provided incorrect information” on his visa application form lodged in 1998 (cf. s.101(a));
(b) “failed to provide details” of his spouse (cf. s.101(b));
(c)“failed to provide details” of his son (cf. s.101(b)); and
(d)“provided incorrect information in relation to your defacto spouse and your child on (sic) your application for the class 104 visa” (cf. s.101(a)).
17.Read with the material that preceded it, this final point clearly put the Applicant on notice of possible findings that he had breached s.101(a) by giving information that was “incorrect” about his wife (i.e., when he denied that he was or had ever been in a de facto relationship) and about his son (i.e., that he did not have any children).
18.That description of “possible non-compliance” provided a statutory foundation under s.108 for (relevantly) the Tribunal’s finding that the Applicant had breached s.101(b) by telling the Department, falsely, that he did not have any children. The decision under review – that of the Tribunal – is not invalid by reason of any deficiency in the particulars contained in the notice.”
Did MRT fail to comply with Section 359A
The Applicant, no longer pursuing ground 1(i), particularised this ground in the following terms:
“The MRT failed to give the Applicant the requisite notice in relation to Q61 and Q67 of Form 47:
(a)Question 61 and Question 67 of Form 47 ask the Applicant to list his children. The Tribunal found that as the Applicant had given an incorrect answer by not declaring his son in an interview with DIMA, the Applicant had not complied with s101 of the Act and that the visa could not therefore be cancelled, subject to the exercise of the discretion.”
I accept that if “…the Tribunal proposes to use the earlier statement as the “reason”, or “a part of the reason” for affirming the decision under review, rather than the later adoption, it must comply with s424A(1)” (as held by Weinberg J in Szeeu v MIMIA (2006) FCAFC 2). For present purposes this view has been adopted as also consistent with the requirements of s359A of the Act.
The difficulty I have with the submission of the Applicant is that
a)at the time the Application was made in September 1998, the answers were correct and could not therefore found any ‘information’ relied upon by the MRT;
b)it is clear that e MRT did not rely on those answers, but rather the information relied upon was:-
i)the answer given by the Applicant in the 2001 interview; and
ii)the other material and statements which suggested his answer at that time was incorrect.
This is apparent from paragraph 100 of the MRT reasons.
The Applicant’s further written submissions assert that a breach of s.101(b) of the Act must necessarily take the form of an incorrect answer to one or more of the questions in the relevant visa application form. On this basis it is said that the “reason” for the decision must have included the content of the relevant questions and answers the Applicant gave in the Application. I do not accept this view.
I agree with the submission of the Respondent that this “contention misunderstands the effect of s99” and that the effect of that section “is to bring within the scope of the obligation in s101(b) any information that a non-citizen gives” in relation to his or her application for a visa.”
In this case, as the evidence established, at the time he completed his application the answers were true, however his circumstances changed and by giving the same answers in September 2001, he then gave an untruthful reply. I take the view that pursuant to section 99, that the falsity itself was sufficient to constitute a breach of s.101(b) of the Act.
It is not suggested by the Applicant that the Tribunal failed to properly alert the Applicant to the information which formed part of the decision for finding and concluding the information was false.
For these reasons there is no merit in this ground.
Failure to take into account a relevant consideration
The Applicant particularises this ground by contending that the MRT failed to take into account the Applicant’s claim that he was contributing to the community by:-
a)often taking part in some activities organised by the Chinese community, such as the Chinese Migration Welfare Association
b)joining some ‘local party’s functions’
The failure to take into account a relevant consideration is a jurisdictional error (MIMIA v Yusuf 75 ALJR 1105), however such a ground can only be made out “if a decision-maker fails to take into account a consideration he is bound to take into account in making that decision” (Minister for Aboriginal Affairs v Peko-Wallsend Ltd per Mason J (1986) 162 CLR 24 at [29]).
The MRT was required by s109(1)(c) to have regard (via Regulation 2.41) to “any contribution made by a holder to the community.”
The statements of community contribution relied upon (additional to payments of taxation) were generally referred to at paragraphs [38] to [41] of the reasons of the learned member. Whilst these activities are not specifically mentioned at paragraph [134] and [148] of the reasons I do not regard it as being necessary for the MRT to do so. The issue of the Applicant’s contribution to the community was just one of the factors that the MRT was required to consider in exercising its discretion. The member found that the positive factors were outweighed by the “extremely adverse findings that the Tribunal has made above regarding the provision of false and misleading evidence and fraudulent documentation”.
I find no merit in this ground.
Conclusion
As I have found no merit in any of the grounds relied upon by the Applicant, the Applicant has not established that the decision of the MRT is affected by jurisdictional error. I am bound to dismiss the Application and will so order.
Costs should follow the event fixed in the sum of $5,000.00 payable within 60 days.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date:
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