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Liu & Ors v Minister for Immigration & Anor [2010] FMCA 60 (10 February 2010)
Last Updated: 3 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
LIU & ORS v MINISTER
FOR IMMIGRATION & ANOR
|
|
MIGRATION – Administrative Review –
Entry Visa – Business Migration Program – Migration Review Tribunal
–
Review of Migration Review Tribunals Decision – Statutory test and
“beyond the applicant’s control – Wednesbury
Unreasonableness
– Jurisdictional Error. |
|
Second Applicant:
|
SOFIA XU
|
|
First Respondent:
|
MINISTER FOR IMMIGRATION & CITIZENSHIP
|
|
Second Respondent:
|
MIGRATION REVIEW TRIBUNAL
|
|
File Number:
|
BRG 699 of 2008
|
|
Hearing date:
|
1 April 2009
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|
Date of Last Submission:
|
1 April 2009
|
|
Delivered on:
|
10 February 2010
|
REPRESENTATION
Counsel for the
Applicant: |
Ms R. Link
|
Solicitors for the Applicant: |
Macrossans Lawyers
|
Counsel for the First Respondent: |
Ms Wheatley
|
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Solicitors for the First Respondent:
|
Clayton Utz
|
|
Counsel for the Second Respondent:
|
No appearance save as to costs
|
|
Solicitor for the Second Respondent:
|
No appearance save as to costs
|
ORDERS
(1) That the application be dismissed.
(2) That subject to application by either party being made within seven (7) days
of this Order, order the applicants pay the Respondent’s
costs of the
application fixed in the sum of
$5,200.00.
|
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT
BRISBANE
|
BRG 699 of 2008
First Applicant
Second Applicant
Third Applicant
And
|
MINISTER FOR IMMIGRATION & CITIZENSHIP
|
First Respondent
|
MIGRATION REVIEW TRIBUNAL
|
Second Respondent
REASONS FOR JUDGMENT
Introduction
- The
first applicant Guo Qiang Liu (the principal applicant) arrived in Australia on
28 August 1996 as the holder of a Sub Class 456
Visa (Business – Short
Stay). This visa was extended on a number of occasions before he was granted a
Sub Class 457 Visa (Business
– Long Stay) on 23 August 1997. It expired
on 20 August 2000 from which time he became an unlawful noncitizen.
- Following
his location he was detained before release on a bridging visa and subsequently
made application for a sponsored 457 Visa.
- The
other applicants, Sophia Xu and Yi Weng are the principal applicant’s step
daughter and wife respectively. The principal
applicant married the third
applicant, Weng, on 22 June 2008. From that union the child Kevin Liu was born
at Mona Vale, NSW, on
4 October 2004.
- The
second applicant was listed as an accompanying family member in the principal
applicant’s application for a Temporary Business
Entry (Class VC) Visa
(Subclass 457.6). The Tribunal was satisfied she too made no claim to satisfy
the primary criteria and also
did not satisfy the secondary criteria and
determined the application made by her.
- The
third applicant was not listed in the application. The tribunal determined it
had no jurisdiction to determine her application
because there was no relevant
decision by it concerning her as she had not been an applicant to the
application determined by her.
This aspect of the decision was not challenged as
the tribunal decision on this point is plainly correct.
- Initially
the principal applicant was sponsored to come to Australia to take up employment
in a Chinese restaurant. After arriving
in Australia he was dismissed from that
employment and could not return to China because he had outstanding financial
obligations
he had incurred there to assist him with his initial travel to
Australia. Subsequently he secured employment as a welder at Brookvale
Steel
Fabrications. In doing so he breached his visa condition to apply for a new
visa upon any change of employment. Unbeknown
to him his original visa expired.
As he continued to work and pay tax and subsequently married he was not aware of
his legal status
until he was detained. He blamed his situation on ignorance of
the law and lack of English skills.
- Since
these events he has been offered employment by Big Rig Industries which has
successfully applied for standard business sponsorships.
- On
18 May 2006 the principal applicant applied for a 457 visa with Big Rig
Industries as his sponsor. The delegate refused the application
because he was
not satisfied that the principal applicant did not hold a substantive visa due
to factors beyond his control as required
by Schedule 3 Criteria 3004.
- The
principal applicant and defendant applicant each sought review by the Migration
Review Tribunal (the Tribunal) of the delegate’s
decision on this point.
- Upon
review by the Tribunal it determined that the principal applicant’s lack
of English, the complexity of the visa system
and the advice that he had
received from the person who assisted him were not factors that were beyond his
control which led to him
not having a substantive
visa.[1] In reaching
that conclusion the Tribunal considered the principal applicant had the capacity
and was subject to a responsibility
to make his own enquiries about the length
of time that the Sub Clause 457 Visa was in effect and that any misunderstanding
on his
part about the length of the Sub Class 457 Visa was not beyond his
control as it was within his capacity “to appreciate what
was needed to
perform an action which would have avoided the event
occurring”.[2]
- In
respect of the dependant applicant the tribunal determined she made no claim to
satisfy the primary criteria and she did not satisfy
the secondary criteria for
a subclass 457 visa. Accordingly her application was dismissed.
- The
application identifies each of the principal affidavit, the dependant applicant
and the third applicant as applicants. The terms
of the application and its
particulars are, however, directed solely to the principal applicant. For
instance ground one is directed
to a matter agitated before the Tribunal solely
in respect of the principal applicant. Ground 3 employs the singular when
making
allegations about the application. As ground 1 was the only other
preceding ground to refer to the “appellant” it follows
ground 3 was
directed to this same person whom, I have earlier noted appears from the context
to be the principal applicant.
- These
grounds were re-cast at the hearing of the application. Despite this the
defendant applicant’s case depends upon the
principal applicants for
success. It follows this application has been resolved by reference to the
review pursued by the principal
applicant.
- The
grounds originally advanced were:
- The
Tribunal erred in finding that the appellant is a competent person who is
capable of applying for a substantive visa on the basis
of irrationally based
unreasonableness;
- The
Tribunal erred in making decisions by basing them on insufficient or inadequate
evidence – this error amounted to a denial
of procedural fairness;
and
- The
Tribunal erred by finding a proper, genuine and realistic consideration of the
merits of the appellant’s application –
specifically in this case it
was alleged it failed to consider a relevant consideration.
- At
the hearing the grounds were recast as follows:
- The
Tribunal erred in applying the incorrect statutory test to the facts as found,
which resulted in the Tribunal constructively failing
to exercise its
jurisdiction; and
- The
Tribunal erred in finding there had been a proper and genuine consideration of
the relevant factors of the appellants’ case:
it was alleged this resulted
in the Tribunal adopting illogical and irrational findings, causing the Tribunal
to err in failing to
find that the first applicant was not the holder of a
substantive visa because of factors beyond his
control.
Ground 1 – Incorrect statutory test
- In
his submission the principal applicant contends that given the findings made by
the Tribunal, if the Tribunal had applied the correct
statutory test it would
have been bound to conclude that the principal applicant’s failure to be
the holder of a substantive
visa was due to factors beyond his control. It was
contended this was because the Tribunal applied an objective test when the
relevant
test was subjective. The argument proceeded that whilst the Tribunal
correctly referred to the decision in Su it misunderstood the effect of
that decision. It was contended this gave rise to jurisdictional error.
- The
principal applicant’s application critically turned upon the
Tribunal’s finding relating to its construction of Schedule
3 criteria
3004, particularly clause (c), which provided that where an applicant ceased to
hold a substantive visa after 1 September
1994 the Minister had to be satisfied
that “the applicant (was) not the holder of a substantive visa because of
factors beyond
the applicant’s control”. In respect of that issue
the Tribunal stated:
- “[51]
Paragraph 3004(c) requires that the applicant is not the holder of a substantive
visa because of factors beyond the applicant’s
control. Consideration of
the phrase “beyond the applicant’s control” in the context of
criterion 3004 of Schedule
3 to the Regulations in Su & Ors v MIAC &
Anor [2007] FMCA 318 (Smith FM, 5 March 2007) provides some guidance. In that
case, Smith FM made the following comments about the phrase:
- “The
first is that a test of whether something was beyond the control of a person
requires a consideration of whether that
person, in his or her own particular
circumstances, might have been able to do something to prevent the relevant
event occurring.
The test is in that sense “subjective”, rather
than being directed at deciding what would have been beyond the control
of an
abstract or “reasonable” person.
A second point, is that
what is “beyond control” should be tested by considering whether the
happening of the event was
or was not within the control of the applicant in a
practical or realistic sense. A capacity to control and avoid the happening
of
an event which is only theoretical or impractical should not disqualify the
person from the benefit of the ameliorative provision.
- ...it is
difficult to regard as “beyond control” an event caused by
forgetfulness or misunderstanding on the part of
a person, where it was within
the capacity of the person to appreciate what was needed and to perform an
action which would have
avoided the event occurring. (Smith FM, 5 March 2007) at
[17] – [18].”
- [52] The
applicant has submitted that he did not hold a substantive visa because he did
not know until he was detained that the Subclass
457 visa granted to him on 22
August 1997 had ceased on 20 August 2000. He had paid for assistance to obtain
this visa and the person
who assisted him led the applicant to believe that he
could now work and live legally in Australia. The applicant had not been
advised
that the visa was temporary. The Tribunal accepts that the applicant
has a poor command of English and that he paid someone to assist
him to obtain a
Subclass 457 visa. The Tribunal accepts that the applicant was not informed by
the person who assisted him that
the visa ceased on 22 August 2000. As the
Tribunal accepts this evidence, the Tribunal has now allowed the applicant more
time to
locate the person who provided him with assistance to obtain the
Subclass 457 visa.
- [53]
However, the Tribunal is of the view that the applicant’s lack of English,
the complexity of the visa system or the advice
that the applicant received from
the person who assisted him are not factors that were beyond the
applicant’s control that
led to him not having a substantive visa. The
applicant has also submitted that he is a skilled welder who has paid taxes and
been
in stable employment. The applicant’s work history and engagement
with the taxation system, combined with the length of time
that the applicant
had been in Australia when his substantive visa ceased (4 years) and his
previous experience in obtaining visas,
indicate to the Tribunal that the
applicant is a competent person who was capable of applying for a substantive
visa.
- [54] The
applicant had been residing in Australia since August 1996 and he had held 4
Subclass 456 visas prior to obtaining a Subclass
457 visa. The applicant was
aware that the Subclass 456 visas were short-term and he had applied for a new
Subclass 456 visa prior
to the expiry of the previous visa. The applicant has
given evidence that he was not, however, aware that a Subclass 457 visa was
also
a temporary visa, albeit one that was in effect for a considerably longer period
of time. However, the Tribunal is of the view
that the applicant had the
capacity, and indeed a responsibility, to make his own enquiries about the
length of time that the Subclass
457 visa was in effect, particularly as there
is no evidence or claim that the person who assisted the applicant was a
migration
agent or legally trained. Consistent with the opinion of Smith FM in
Su & Ors v MIAC & Anor the Tribunal is of the view
that misunderstanding
on the applicant’s part about the length of effect of the Subclass 457
visa was not beyond his control,
as it was within the applicant’s capacity
“to appreciate what was needed and to perform an action which would have
avoided
the event occurring.”
- [55] The
Tribunal is therefore not satisfied that the applicant was not the holder of a
substantive visa because of factors beyond
the applicant’s control and the
Tribunal finds that the requirements of paragraph 3004(c) are not
met.”
- The
applicant’s submission was that this finding was based upon an application
of an objective test when it ought to have been
a subjective
test.[3]
- In
Su v the Minister for Immigration and Citizenship Smith FM articulated
the test as a subjective/objective test. It is this approach which the
respondent says the Tribunal adopted
and quoted at paragraph 51 of its decision
(above) and which it says was the correct approach.
- In
Su FM Smith particularly noted the judgment of Mansfield J in the Full
Court in Secretary, Department of Social Security v Secara and Ors (1998)
89 FCR 151 at 159 – 162.
- In
my view the Full Court decision in Secara is in my view instructive.
That decision considered section 739A(7) of the Social Security Act.
That section provided:
- “Neither
subsection (1) nor (2) apply to a person if the person, in the
Secretary’s opinion, has suffered a substantial
change in circumstances
beyond the person's control.”
- The
structure of that provision has significant parallels with Schedule 3 criteria
3004(c) which applied if the applicant ceased to
hold a substantive visa after 1
September 1994. Here the relevant provision provided,
- “...The
Minister is satisfied that the applicant is not the holder of a substantive visa
because of factors beyond the applicant’s
control.”
- In
considering section 739A the Court affirmed its earlier views on the approach
to the construction of the words “beyond the person’s control”
expressed in Department of Employment, Education and Youth Affairs v
Ferguson[4] where
when discussing those words as used in section 45 (6)(a) and (b) of the
Social Security Act it said at 473-438:
- “...In
my view the scope of those provisions is not confined to external factors or
matters. That is, if there is a failure
to comply with the terms of the
agreement, those provisions direct consideration of matters which may include
factors going to his
state of mind or his physical condition, for example,
illness. They may also go to entirely external factors. But I do not think
that they permit consideration of matters which are entirely internal, for
example, forgetting.
- The
expression in section 45(6)(a) requires that the main reason for the failure is
something that the person had within that person’s
control. The concept
of “control” in that context is one of fact, but I think it is
intended to mean something which
the person could have done something about. If
the person is ill, or there is some entirely external factor, for example, a
transport
strike, it may amount to circumstances which are not within that
person’s control. The person, in those circumstances, would
not
recriminate that something should or should not have been
done.”[5]
- The
reference by his Honour to matters which are external in contrast to matters
which are internal highlights the subjective/objective
approach necessary.
- It
seems apparent from his Honour’s analysis that first there must be an
assessment of the facts to see whether the evidence
demonstrates the applicant
in his or her own particular circumstances might have been able to do something
to prevent the relevant
event occurring. Then, if that is satisfied, there must
be an assessment of whether or not these facts were within the control of
the
applicant in a practical or realistic sense. That is measured objectively.
- In
its submissions the respondent says that this approach is the correct approach
because:
- A
purely subjective test would not allow for any proper consideration of an
principal applicant’s claims that he was not the
holder of a substantive
visa because of factors beyond his control because such a test would simply
require an acceptance of the
principal applicant’s evidence if he stated
that he was not the holder of a substantive visa because of factors beyond his
control. It follows that in that approach this criteria would have no
“work” to do. It follows, there must be an objective
element.
- That
the test under criteria 3004(c) is not purely objective either because the
provision clearly states that it is applicable to
the applicant and not
to an applicant or applicant’s generally.
- It
is plain from the Tribunal’s decision that it adopted a
subjective/objective approach. It principally determined the factors
which were
not beyond his control (the external factors) particularly his employment
history, his previous experience in obtaining
visas use of an unqualified agent
and the length of time in Australia. It then weighted those factors against the
subjective factors
advanced by the applicant (the internal factors) being his
lack of English, advice received and the complexity of the visa system
to him.
It ultimately concluded its decision following the weighing of the internal and
external factors.
- In
my view it cannot be criticised for that approach which accords with
authority.
Ground 2 - Illogicality
- The
principal applicant contends the Tribunal’s decision was illogical and not
according to law because it accepted his evidence
and made no adverse
credibility findings against him and yet, by inference, failed to determine the
application in his favour. In
particular it was contended on his behalf that
the Tribunal’s findings that his working history, engagement with the tax
system,
time in Australia and previous history of submitting valid applications
demonstrate he was “a competent person who is capable
of applying for a
substantive visa” was illogical on the evidence.
- In
particular the principal applicant contends that given the Tribunal’s
acceptance of his evidence that he was unable to prepare
a visa application
without assistance, any finding that he was a competent person who is capable of
applying for a substantive visa
must be illogical. However in reaching its
decision the Tribunal considered the principal applicant’s evidence that
in respect
of previous visa applications it would appear he was assisted to
complete them.[6] For
the principal applicant it was contended that this matter in particular
constituted a failure by the tribunal to genuinely consider
credible, relevant
and significant factors in his case. It followed therefore that the Tribunal
failed to logically and rationally
examine the relevant facts and circumstances
arising from his uncontested evidence which led to a failure by it to properly
exercise
its jurisdiction.
- While
it was conceded by the respondent that in part there will be some subjective
element in the principal applicant’s determination
of “factors
beyond the applicant’s control” the fact overlooked by the principal
applicant in his submissions was
that the Minister must be
“satisfied” that it is so. The exercise of the Minister’s
power is not expressly fettered
in any sense and remains a wholly discretionary
power. In Sharp v Wakefield Lord Halsbury stated a discretionary power
to do something means:
- “...that
something is to be done according to the rules of reason and justice, not
according to private opinion...; according
to law and not humour. It is to be
not arbitrary, vague and fanciful, but legal and regular. And it must be
exercised within the
limit, to which an honest man competent to the discharge of
his office ought to confine
himself.”[7]
- It
follows the power must be exercised reasonably in the sense explained by Lord
Green in Associated Provincial Picture Houses Ltd v Wednesbury
Corporation[8]. The
Wednesbury unreasonableness test incorporates a test of objectivity for
it emphasises a decision is only unreasonable if no reasonable person
exercising
the relevant power could have come to the same decision. Such a conclusion can
only be reached by objective rather than
subjective assessment.
- The
position was well summarised in Judicial Review of Administrative
Action[9] at 365 where
the authors stated:
- “...the
Court’s reasonableness standard is ultimately intuitive. But even though
it is intuitive rather than empirical,
the court in each case still believes
that it is adhering to its rhetoric, that it is using the standard only where
the unreasonableness
is manifest and extreme. This must be because there is a
normative component to the standard, which is applied to strike down only
those
decisions which seriously fail the court’s own senses of good judgment and
good government. The court’s attribution
of those senses to the
reasonable decision maker assumes a community of values and outlook on both
sides of the judicial/administration
divide.”
- In
Pre Malal v Minister for Immigration, Local Government and Ethnic
Affairs[10]
Einfeld J in considering the court’s role in the judicial review of
administrative decisions particularly in the immigration
context rejected the
notion that decisions were “a totally subjective exercise (of discretion),
dependent solely on the idiosyncrasies
of each judge.” He concluded the
standards derived from “the body of legal rules and principles having
their roots in
human rights which judges can ascertain by taking account of
“the best available examples of objectivity in this field, namely,
the
various international human rights principles and any convention to which
Australia is a party.”
- In
Bromley London Borough Council v Greater London
Councils[11] Lord
Diplock defined unreasonable decisions as those which:
- “...looked
at objectively, are so devoid of any plausible justification that no reasonable
body of persons could have reached
them.”
- The
views expressed by the English courts have been adopted into and now constitute
well settled law in Australia. See for instance
Applicant VEAL of 2002 v
Minister for Immigration, Multicultural and Indigenous
Affairs[12] .
- The
single judgements in SZANI v Minister for Immigration, Multicultural and
Indigenous
Affairs[13] and
SZMDS v Minister for Immigration, Multicultural and Indigenous
Affairs[14]
provide illustrations of the applications of those principles.
- As
the Brennan J said in Applicant VEAL of 2002 v MIMIA principles of
natural justice of procedural fairness are not concerned with the merits of a
particular exercise of power but with
the procedure that be observed in its
exercise.
- In
that context it is apparent the Tribunal considered the principal
applicant’s capacity to make his own application and also
the matter of
whether or not he was informed as to the terms of the visa. But those matters
were weighed in the mix and in the result
did not sway the Tribunal to the view
that they were matters beyond the control of the principal applicant.
- In
any event I do not agree that it could be concluded that because the Tribunal
did not act upon that uncontested evidence its conclusion
was illogical in the
sense that it could not be reconciled with the remaining evidence to justify the
Tribunal’s ultimate determination.
In particular I am mindful of and
accept the submission made by the respondent that when one considers that the
person who assisted
the principal applicant may not have been a migration agent
or legally trained, it was within the principal applicant’s capacity
or
control to appreciate what was needed to perform an action which would have
prevented the event occurring, that is to say, seek
out appropriate advice. The
principal applicant’s contentions on this point would have been stronger
if for instance his evidence
had been that he had in fact adopted this course
rather than the course indicated by his evidence, that is, he was assisted by
his
employer who was the proprietor of a Chinese restaurant.
- Likewise
the principal applicant’s contention that he was misinformed about the
duration of his visa was a matter of fact open
to the Tribunal. A review of the
transcript suggests some indifference on the part of the principal applicant to
the matter of the
visa’s expiry date despite there being apparent
knowledge on his part that visas required
renewal.[15]
Furthermore the evidence before the Tribunal indicates that the source of his
misinformation appears to have been his employer
at the Chinese
restaurant.[16] Again
whilst it may be that the principal applicant was misinformed and that he would
have applied for a visa to maintain his lawful
status had he been properly
informed the fact remains that it was open to the Tribunal to determine as the
matter was “not
beyond the applicant’s control” given his
evidence on his source of information on this point.
- In
my view this is not a case where it can be credibly contended that the Tribunal
dismissed from consideration relevant information
wholly or in part. The
Tribunal has in my view considered all the relevant information in reaching its
conclusion. The individual
weighing up of that material was a matter for it.
However the outcome of that process appears to be reasonably open to it.
- In
my view I do not consider that jurisdictional error has been identified on the
ground of illogicality.
Jurisdictional Error
- The
first applicant had advanced other grounds in his application. They were not
pursued at the hearing and I take them as having
been
abandoned.
Conclusion
- The
principal applicant failed in his application before the Migration Review
Tribunal for review of the delegate’s decision
that he did not meet the
requirement sof paragraph 3004 of Section 3 of the Migration Regulation
because he was not the holder of a substantive visa because of factors beyond
his control.
- He
sought judicial review of the Tribunal’s decision on the basis that it
applied an incorrect statutory test and/or it based
its decision on illogical or
irrational findings.
- In
my view the Tribunal was not in error in its application of the statute.
Additionally its decision was not based on illogical
or irrational
findings.
- The
defendant applicant’s application falls within the primary
applicant’s application.
- No
reviewable decision was made in respect of the third applicant and accordingly
there was no decision in respect of her available
for
review.
Order
- That
the application be dismissed.
- That
subject to application by either party being made within seven (7) days of this
Order, order the applicants pay the Respondent’s
costs of the application
fixed in the sum of $5,200.00.
I certify that the preceding
fifty-one (51) paragraphs are a true copy of the reasons for judgment of Burnett
FM
Date: 10 February 2010
[1] Decision page 13
and 14.
[2] Decision
page 13 and 14.
[3]
Submissions paragraph
21.
[4] (1997) 76 FCR
426.
[5] Sekara
supra at 161.
[6]
Decision paragraph 33 page 7 of
14.
[7] [1891] AC 173
at 179; applied R v Anderson; ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113
CLR 177 at 189.
[8]
[1947] EWCA Civ 1; [1948] 1 KB 223 at 229 –
230.
[9] Aronson and
Dyer Lawbook Company, Sydney
1996.
[10] [1993] FCA 82; (1993)
41 FCR 117 at
137.
[11] [1983] 1
AC 768 at 821.
[12]
(2005) 225 CLR 88; Kioa v West (1985) 159 CLR
550.
[13] [2004]
FCA 1298
[14]
[2009] FCA
210.
[15] See
affidavit Steven Peter Maycock filed 5 February 2009, Annexure A, question 42
– 44.
[16]
See affidavit Steven Peter Maycock filed 5 February 2009, Annexure A, paragraphs
98 – 105.
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