ZHUANG v Minister for Home Affairs
[2019] FCCA 3699
•19 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZHUANG v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3699 |
| Catchwords: MIGRATION – Jurisdictional error – failure to comply with s.360 Migration Act – illogicality and unreasonableness – failure to consider claim – discretion – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.457, 360 Migration Regulations 1994 (Cth), r.457.211 |
| Cases cited: BTU18 v Minister for Home Affairs [2019] FCA 540 Re Refugee Tribunal: Ex Parte Aala (2000) 204 CLR 82 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZOBC v Minister for Immigration & Citizenship [2010] FCA 712 |
| Applicant: | DONGDONG ZHUANG |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 111 of 2018 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 9 May 2019 |
| Date of Last Submission: | 9 May 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 19 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Liang |
| Solicitors for the Applicant: | Advance Lawyers Group |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Further Amended Application filed 8 May 2019 is dismissed.
The Applicant is to pay the First Respondent’s costs in the amount of $7,328.
Remove all outstanding issues from the list of cases awaiting finalisation.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 111 of 2018
| DONGDONG ZHUANG |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks a judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) dated 18 December 2017, which affirmed the decision of a delegate of the first respondent (“delegate”) refusing to grant the applicant a temporary business entry (class UC, sub-class 457) visa (“visa”).
The application proceeded on the grounds contained in a Further Amended Application, leave for which was granted on the day of the judicial review hearing.
The Court is satisfied, for reasons which are outlined below, that the application should be dismissed.
Before the Tribunal
The applicant last held a substantive visa in 2009 being a student visa. The applicant’s claim is that:
a)He came to study in Australia in July 2007, and that at the time he was financially supported by his father. Soon after he started studying his father came to Australia.
b)His father’s business in China failed and there were numerous creditors.
c)In 2008, the applicant visited China and saw the family situation. He was grabbed by creditors who threatened his mother. They beat him.
d)His last substantive visa expired in 2009. He has remained in Australia since that time, that is, after his student visa expired he has remained in Australia. His employer has agreed to sponsor him.
When asked what the factors beyond his control were in respect of why he was not the holder of a substantive visa, the applicant told the Tribunal that he had just turned 18 and was previously studying. He had never before seen anything like what he saw in China, and this had an impact on him. He also said his father had stopped financially supporting him[1] once he started working.[2] He said he needed to renew his visa and pay a large amount of tuition fees and lawyer fees.
[1] CB 77
[2] Affidavit of Annette Aplin filed 20 April 2018 at page 4 of transcript
The applicant has subsequently obtained skills as a plasterer and supervisor. He followed his father who has helped him. His father’s employer had asked his employer to help him.
The Tribunal was not satisfied that:
a)The father’s creditors in China constituted factors that would cause the applicant to stay in Australia without a visa since 2009;
b)The applicant has not had the support of his father.
c)The applicant was frightened of returning to China.
d)That the applicant and his family are at risk from violent creditors in China.
e)It would be dangerous for the applicant to return to China and lodge his application for a s.457 visa.
The Tribunal was therefore not satisfied that the applicant is not a holder of a substantive visa because of factors beyond his control or that there are compelling reasons for granting the visa.
The decision before the delegate was that the delegate was not satisfied that the reasons stated in the applicant’s submissions constitute factors that were beyond the applicant’s control.[3] This decision was based on the information provided by the applicant, and in particular, a submission made to the delegate on 3 September 2016.The delegate did not make any findings in respect of the compelling reasons criterion.
[3] CB 52
It was submitted to this Court on behalf of the applicant that the Tribunal acted outside of its jurisdiction in that:
a)It fell into the species of jurisdictional error found in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[4] (“SZBEL”) and thereby failed to comply with s360 of the Act (Ground 1);
b)In rejecting the applicant’s claim by reference to the applicant’s family’s financial circumstances was illogical and/or unreasonable or affected by failure to give proper, genuine and realistic consideration to the material before the Tribunal (Ground 2);
c)It failed to consider the applicant’s claim about lack of energy to continue with his studies (Ground 3);
d)It failed to consider the applicant’s claim regarding academic performance and dedication (Ground 4).
Court’s Determination
[4] (2006) 228 CLR 152
Ground 1
Ground 1 alleges that the Tribunal breached s.360 of the Act in failing to draw the applicant’s attention to what the applicant claims are “additional issues upon which the review turned.[5]” Such ground was argued on the basis of SZBEL.
[5] Applicant’s outlie of submissions at paragraph 12
It is worthwhile quoting the well-known passage of the High Court in SZBEL:
[35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
[36] It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
[37] That this is the consequence of the statutory scheme can be illustrated by taking a simple example. Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness.
The issues identified by the Tribunal at the hearing were as follows:[6]
a)“factors beyond your control”;
b)“compelling reasons for the granting” of the visa;
c)“that you complied substantially with the conditions of your last visa”; and
d)“that you are entitled to the granting of a visa on the day when you last held a substantive visa”.
[6] Affidavit of Annette Aplin filed 20 April 2018, see in particular pages 2 and 4 of the transcript before the Tribunal
The facts in the present matter are distinguishable from those in SZBEL. The delegate here did not make any conclusion or findings about the matters which the Tribunal did not ultimately find were established. The delegate simply found that the applicant had not established that there were factors beyond his control.
Following the delegate’s decision, the applicant was aware, or should have been aware, that the delegate did not consider that the reasons stated in the applicant’s submission constituted factors that were beyond his control.[7] It is not appropriate to suggest that in dismissing the visa application the delegate implicitly accepted the applicant’s claims. The delegate’s decision, when read as a whole, reveals that the delegate did not accept the applicant’s claims or at least found them deficient.
[7] CB 52
The Tribunal found not only that the applicant did not establish circumstances beyond his control which led to him not holding a substantive visa at the time of his application, but also that there are no compelling reasons to grant the visa. It did so on the basis that it rejected the applicant’s claim that his father ceased to provide him with financial support, that the applicant’s father’s creditors would obtain legal orders and then resort to violence and illegal behaviour, that the applicant was frightened of returning to China, that the applicant or his family were at risk in China and that it would be dangerous for the applicant to return to China to lodge his visa application.
The Tribunal did not specifically ask the applicant to expand on aspects of his account which were ultimately not accepted. While at first blush this might appear contrary to authority[8] it was not so.
[8] SZBEL at [47]
Although there was nothing specific in the Tribunal’s statements and questions during the hearing which might have indicated to the applicant that everything he said in support of his application was in issue, the Tribunal did indicate to the applicant at the commencement of the hearing that its determination is independent and that it would be based on not only the material before the delegate but also on what is said to the Tribunal. In light of the delegate already not accepting that the applicant’s claims constituted matters which were beyond his control, the applicant could not have been in the dark as to what the issues were before the Tribunal.
The Tribunal is not required to give an applicant a running commentary on its thought processes.[9] In general, procedural fairness generally requires the Tribunal to put the applicant on notice of “any adverse conclusion which has been arrived at which would not obviously be open on the known material” but this does not extend to the disclosure of the Tribunal’s “mental processes or provisional views”[10] The Tribunal did so.
[9] SZOBC v Minister for Immigration & Citizenship [2010] FCA 712 at [30]
[10] BTU18 v Minister for Home Affairs [2019] FCA 540 at [53]
Ground 1 is therefore not made out.
Ground 2
In Ground 2 the applicant alleges that the Tribunal’s rejection of the applicant’s claim that he was not a holder of a substantive visa because of his family’s financial circumstances was “illogical, and/or unreasonable, and/or affected by a failure to give proper, genuine and realistic consideration to the material that was before it.”
The applicant submitted that there was no logical connection between the evidence before the Tribunal and the inferences drawn from that evidence. The submission is not made out.
The rejection by the Tribunal of the applicant’s claim that his family’s financial circumstances was a factor beyond his control arose logically out of the material:
a)The applicant’s and his father’s earnings were made known to the Tribunal. The applicant himself was earning over $100,000.
b)The applicant’s father’s company assisted the applicant in obtaining employment.
c)The applicant’s father assisted him in obtaining skills and training.
Importantly, the Tribunal did not accept that the applicant has not had the support of his father (not that he did not have financial support). The Tribunal found that no convincing evidence was provided which would explain why the applicant’s father refused to pay his creditors or why his father would stop financially supporting a son he had previously financially supported. Indeed, no such evidence was provided to the Tribunal. The Tribunal was only told that since the applicant started working his father stopped giving him financial support.[11]
[11] Affidavit of Annete Aplin filed 20 April 2018, transcript at page 4
Contrary to the submissions made on behalf of the applicant, the Tribunal did not assume because the applicant and his father worked in Australia their earning were sufficient to pay off the family creditors. There was no such assumption made.
The Tribunal is not obliged to test the applicant’s claims. It is for the applicant to establish that he was not the holder of a substantive visa because of reasons beyond his control and provide sufficient evidence for the Tribunal to be so satisfied. If there is a lacuna in that evidence, that is not a matter which can be visited upon the Tribunal. In his submissions to the delegate which were also before the Tribunal the applicant claimed that “Without sufficient funds to renew the student visa, he chose to stay in Australia, mainly due to his worsening family situation back in China” and because he was used to life in Australia.
The submission made on behalf of the applicant that the Tribunal’s reasoning appears to have been based on unwarranted assumptions that because the applicant and his father were employed, he had not had to discontinue his studies because of his family’s financial circumstances. The reasons of the Tribunal, when read fairly and as a whole, do not make any unwarranted assumptions, nor least the ones which are attributed to it.
The Tribunal’s reasons logically flow from the evidence. It found that the applicant had not established that he was not the holder of a substantive visa at the time of his application due to matters which were beyond his control.
Ground 2 is therefore not made out.
Grounds 3 and 4
It is appropriate to address Grounds 3 and 4 together.
The submission to the delegate dated 1 September 2016 was also before the Tribunal.[12] That submission[13] included the following assertions:
a)At the time he entered Australia in 2007, the applicant was solely reliant on his “family’s financial support to commit to his studies in Australia.”
b)Not long after he entered Australia, the applicant’s father also entered Australia, and the applicant continued to rely on his family’s financial support. At this time, the father’s business in China deteriorated and eventually failed, leading to numerous creditors coming for the father.
c)The applicant went to China in about mid-2008. “Financially, there was no support coming from them.”
d)From 2008 on, the applicant attended various work sites to be trained and to work, so he could pay for his own study fees as well as living expenses. During the time of his studies “he strictly complied with the student visa conditions, mainly attending classes diligently, and keeping up his academic performance satisfactorily.”
e)Without sufficient funds to renew the student visa, the applicant chose to stay in Australia, mainly due to his worsening family situation back in China “and that his 19-year-old life had gradually gotten used to the way of life, work and environment. Also, due to his further commitments to the work at various site, he was unable to have sufficient energy to hold a student visa and comply fully with its conditions.”
[12] CB 77 at [14], [24]
[13] CB 42-43
In respect of Ground 3, it was submitted that in making the findings that the applicant had received Australian wages and had earned a significant amount of money in Australia, “The Tribunal did not engage with the applicant’s claim to have been unable to continue to work and study simultaneously due to insufficient energy levels.” The Tribunal made a finding which was in line with the applicant’s evidence, namely that his salary was $102,000 in 2016. In the application lodged for a temporary visa after his student visa expired, the applicant stated that his wage would be over $100,000. The Tribunal’s findings in respect of the applicant’s wages were therefore open to it on the evidence.
In respect of the submission that the Tribunal did not engage with the claim regarding insufficient energy levels as being a factor beyond the applicant’s control it is worthwhile noting that this was not a claim made by the applicant. His written submission to the delegate was that due to his work commitments to the work at various sites he was unable to have sufficient energy to hold a student visa and comply fully with its conditions (emphasis added). The applicant did not say anything further on this during the hearing before the Tribunal. The claim was not put by the applicant to the Tribunal as stated to this Court. It was not a central component of his claim, but rather an ancillary matter dealt with by the Tribunal in an appropriate manner. Ground 3 is therefore not made out.
In respect of Ground 4, it was submitted that “The applicant’s claim to have been a dedicated student was centrally relevant to his claim to have only ceased his studies because of reasons beyond his control, which were also claimed to constituted compelling reasons.”
On reviewing the Tribunal’s decision it is clear that the claim by the applicant about his dedication to study was not put forward by him as a centrally relevant matter before the Tribunal. It was put as an ancillary matter and was considered by the Tribunal through the submission which it referred to. It was not raised during the hearing before the Tribunal. It is well accepted that the Tribunal is not obliged to spell out chapter and verse its answer to each and every claim an applicant makes.
Ground 4 is therefore not made out.
Discretion
The applicant lodged an application for the visa on 1 June 2016. At the time the application was lodged as noted earlier, he did not hold a substantive visa, and had not held a substantive visa since 2009.
As is noted in the decision record of the delegate[14]:
Under the migration law, a visa cannot be granted unless the applicant meets the relevant legal requirements that are specified in the Act and the Regulations.
[14] CB 49
The prescribed criteria for the grant of a visa of the type applied for are set out in s.457.211 of Schedule 2 of the Migration Regulations 1994. Because he was not the holder of a substantive visa at the time of his application, the applicant was required to meet subparagraph 457.211(b)(ii), which in turn required the applicant to meet Schedule 3 criteria 3003, 3004 and 3005.
It was submitted by the respondent that the applicant could never have satisfied Criterion 2004(f)(i), which is a requirement that he would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive visa, and as such that the application should be dismissed as no useful result could ensue from a remittal of the matter.
It was submitted by the respondent that at the date that the applicant’s last substantive visa expired, he would not have been able to obtain the relevant visa as he was not nominated by an approved sponsor, and thus could never satisfy criterion 300(f)(i). The applicant’s last substantive visa was a student visa, and there was no evidence before the Tribunal that he had a sponsor for a temporary business entry (class UC) visa in 2009.
The transcript of the Tribunal hearing was before the Court.[15]
[15] Applicant read the affidavit of Annette Aplin filed 20 April 2018
At the hearing before the Tribunal the following exchange took place:
CCO: … and you are saying that at the time of application you would have been eligible for this visa?
DZ: Yes
CCO: Okay because it seems to me at that time you may not have had the skills because you’re saying, he was asking you to obtain skills in 2009.
DZ: It was in 2008 when I came back from China I just following my father and learned the skills from my father.
…
REP: … when he was working during the student visa period… he was also addition to the plastering and the gyprocking skills he was also learning management skills too. So the current occupation as a plasterer team leader matched those skills…
Yeah but what I’m submitting is that he was developing those skills at the time that he was under his father’s supervision at work and right now our nominated profession is plasterer team leader.
The representative for the applicant clearly submitted that at the time the applicant ceased holding a substantive visa he was developing the skills which support the current nominated profession, not that he had those skills in 2009 when he ceased holding a substantive visa. This was contrary to what had been submitted to the delegate.
It is worth noting that[16]:
a)Constitutional writs are discretionary[17];
b)Where a party establishes prima facie grounds for the issue of such remedies, the resisting party may point to any consideration that will nonetheless warrant the ultimate refusal of relief in the particular circumstances of the case[18];
c)“… the discretion allows the reviewing court to say: … Even if a postulated error has occurred in complying with s … and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court's time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case….
When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome...”[19]
[16] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
[17] Ibid [28],[52] see also In Re Refugee Tribuna; Ex parte Aala (2000) 204 CLR 82
[18] Ibid [54] per Kirby J
[19] Ibid [88]-[89] per Kirby J
In SZBYR v Minister for Immigration and Citizenship, the High Court said obiter that even if the appellants be correct as to the proper operation of the relevant section, they could not overcome the Tribunal’s finding that their claims lacked the requisite convention nexus.
The difficulty for the respondent here is that the Tribunal never made a finding in respect of whether or not the applicant would have been able to satisfy the criteria or be granted the visa on the day he last held a substantive visa. While it referred to that requirement as an additional requirement which the applicant needed to satisfy, it found that the applicant did not satisfy criterion 3004 because the Tribunal was “not satisfied that the applicant is the holder of a substantive visa because of factors beyond his control or that there are compelling reasons for granting the visa.” The Tribunal went no further.
Neither the Court Book nor any material filed in these proceedings provides any evidence that at the time the applicant’s substantive visa expired that he had an approved sponsor for the purposes of the 457 visa application. It was submitted on behalf of the applicant that there is no evidence available before the Court as to whether or not the applicant could have met the criterion. This is not correct. There is no evidence before the Court that he could have met the criterion. There is his assertion made during the hearing before the Tribunal which must be considered in light of his representative’s submissions. In addition the evidence[20] is that the applicant “has now been offered good employment, contributing greatly to an Australia’s company’s growth in the industry and is now having this chance to regularise his visa status in Australia.” (emphasis added).
[20] CB 43 being the submission to the delegate dated 1 September 2016 which also seemed to suggest that the applicant’s skill set had been established by the time his substantive visa expired.
The onus is on the applicant to persuade the Court not only that jurisdictional error has been established, but if it has been established that the Court ought to exercise its discretion in granting the relief sought.
If the Court is wrong about the jurisdictional error being made out, the Court is in any event not satisfied that it ought to exercise its discretion in the applicant’s favour. There appears to be no utility in granting the relief as there is no evidence which proves that the applicant could have met the necessary criterion.
The application is dismissed with costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Associate:
Date: 19 December 2019
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