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Federal Court of Australia |
Last Updated: 24 February 1999
Minister for Immigration & Multicultural Affairs v Zhang [1999] FCA 84
Migration Act 1958 (Cth), s 65, s 116, s 119, s 120, s 121
Migration Regulations
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 referred to
Edgington v Fitzmaurice (1885) 29 Ch D 459 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 cited
Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1 cited
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v ZHANG JIA QING
VG 664 OF 1997
FRENCH, NORTH AND MERKEL JJ
12 FEBRUARY 1999
MELBOURNE
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | VG 664 OF 1997 |
AN APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: Appellant AND: Respondent JUDGES:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
ZHANG JIA QING
FRENCH, NORTH AND MERKEL JJ DATE OF ORDER: 12 FEBRUARY 1999 WHERE MADE: MELBOURNE
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. The appellant is to pay the respondent'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 | |
| VICTORIA DISTRICT REGISTRY | VG 664 OF 1997 |
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: Appellant AND: Respondent
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
ZHANG JIA QING
JUDGE:
FRENCH, NORTH AND MERKEL JJ DATE: 12 FEBRUARY 1999 PLACE: MELBOURNE
Introduction
1 On 12 July 1997, Zhang Jia Qing (Zhang) arrived in Melbourne on a flight from Beijing. He was the holder of a visa issued for a temporary visit for business purposes. At the airport he and four other Chinese nationals were stopped and interviewed by officers of the Department of Immigration and Multicultural Affairs. After making inquiries with the Australian Embassy in Beijing, one of the officers decided that Zhang had obtained his visa by a fraudulent application. Communication with Zhang was difficult and conducted through interpreters. In the end the Departmental Officer cancelled the visa on the ground that there had been a change in circumstances and that the circumstances which permitted the grant of the visa no longer existed.
2 On a review of that decision, Burchett J found that the visa had not validly been cancelled.
3 He held that the change of circumstances ground for cancellation was inapplicable to the case. It was not appropriate to substitute an order for cancellation on the other ground of provision of incorrect information. Such a step would involve the Court in exercising an administrative function. In any event, it was too late for that as Zhang and his fellow nationals had all been repatriated.
4 His Honour also expressed concern about the procedures which had been followed by the Department in dealing with Zhang, the time he was kept without refreshments and the very short time allowed to him to respond to the allegation that he had made a fraudulent application.
5 In the event this appeal against the decision of Burchett J was concerned with the question of construction, namely, whether the ground for cancellation of visa based on change in circumstances was applicable to the case.
Factual Background
6 Zhang is a national of the Peoples Republic of China. On 16 June 1997 he made an application to the Australian Embassy in Beijing for the issue of a temporary business visa to visit Australia for a stay of up to three months. The application described his occupation as "Manager" and his proposed business activities as "representing the company in business negotiations of the co-operative agreement with Australian business partners". The application was accompanied by a letter signed by Zhang as Deputy General Manager of Beijing Yi Ya Decoration Company Ltd which he said was a company:
"...currently seeking quality suppliers of decoration and building materials to fulfil a number of major construction projects."7 He said in support of his application that an Australian company, CRC International Pty Ltd of Melbourne, had been authorised to conduct market research in Australia on behalf of Beijing Yi Ya Decoration Company Ltd, that they had examined product samples collected by CRC and were satisfied with their quality and related trade terms. The letter in support of the visa application went on:
"We now wish to enter into a formal co-operative agreement with CRC International and Mr ZHANG Jia Qing (Deputy General Manager); Ms LIU. Qing (Technical Development Manager); Ms Li Jie (Finance and Account Manager) and Mr LI Shen (Marketing Manager) of this company will represent our company in the forthcoming business discussions and negotiation with the CRC in Australia for a period about 20 days. (June 24 to July 14 1997). All of these senior managers will return to their positions after this visit."8 That letter attached and referred to a letter of invitation from CRC. The letter of invitation was dated 10 April 1997 and was addressed to Zhang and signed by Mary Lu, the Business Development Manager of CRC. It confirmed an invitation to Zhang to visit CRC in Melbourne in June 1997 to "...continue our business discussions and to advance our negotiations for on-going business co-operation". The invitation was extended to Zhang's "team members", Ms Liu Qing, Ms Li Jie and Mr Li Shen. Also attached was a travel itinerary covering the period 24 June to 13 July 1997.
9 On 24 June 1997 Zhang was granted a Class 456 Business Visa.
10 At 6.20am on 12 July 1997 Zhang arrived in Melbourne on a flight from Beijing. Of the three other persons nominated in the CRC invitation only two, Li Jie and Li Shen, accompanied him. Also travelling on the same flight were two other Chinese nationals, Xia Yun Qiao and Yan Xiao Bo who had also obtained temporary business visas on the basis of invitations from an Australian company to come to Australia. The five were travelling on consecutively issued airline tickets with identical bookings to return to Beijing on 9 August 1997. Their baggage tags were interchanged between the five persons.
11 At Melbourne airport Zhang and the other four Chinese people were directed by Customs Officers to Officers of the Department of Immigration and Multicultural Affairs. Zhang was interviewed by Robert Peric (Peric). The initial interview took place using a Mandarin-speaking interpreter over a conference telephone in an office at the airport. The interview commenced at between 10 and 11am. Asked why he had come to Australia Zhang told Peric that "he would be involved with CRC in business negotiations surrounding the purchase of decoration and building materials". Zhang was carrying about $1,500 in cash. His passport indicated that he was a manager. His luggage, according to Peric, contained no paperwork relating to business dealings or contacts in Australia. Peric was assisted in his inquiries by Ms Merriman, another officer of the Department.
12 Peric and Merriman contacted the Australian Embassy in Beijing by fax to obtain copies of the original visa application forms. Mr Mark Frodsham of the Embassy responded by telephone and said he had retrieved the application forms for all five people. The applications for Zhang, Li Jei and Li Shen were supported by letters from Beijing Yi Ya Decoration Company Ltd. Those for the other two travellers were supported by Beijing Zin Yin Bo Electronic and Telecommunication Co. Frodsham's advice to the Australian officers however was that all application forms appeared to have been completed by the same person and that the support letters for the two companies were so similar as to appear to have been completed by the same person. Peric reached the conclusion that the Chinese letters in support of the applications were fraudulent, that the documents were not bona fide and that had the applications been seen in unison at the time of the decision to grant the visas, they would not have been approved.
13 The telephone conversation with Frodsham was confirmed immediately by a facsimile letter which included the observations, in addition to those already noted, that all five travellers claimed to be managers despite the youth of some of them and that the itinerary of each group was extremely similar.
14 With the facsimile were copies of Zhang's letter to the Australian Embassy, the letter from Mary Lu on behalf of CRC and a detailed travel itinerary covering three weeks from 24 June 1997. Also enclosed were two forms of applications for temporary business visas filled out on behalf of Zhang and Li Jie and a number of documents largely in Chinese characters.
15 Other application documents relating to the other travellers were also sent by facsimile from the Embassy revealing both differences and similarities between the applications.
16 Waiting at the airport to meet Li Jie and her companions was Frank Fei. He said in an affidavit in evidence before the learned trial judge that he was acquainted with members of the family of Li Jie and had been asked to go to the airport to collect her and "some work associates" as they were arriving early on a Saturday morning in Australia and the company which had invited them to come to Australia was unable to make arrangements to collect them. After he had waited about two and a half hours a uniformed woman, Ms Merriman, approached him with a number of passports in her hand. He identified the names of the persons whom he was waiting to collect which included Li Jie. She told him there had been trouble with passports and visas and that they were contacting the embassy in China to check the visas. He gave Ms Merriman to understand that he had been told Li Jie was travelling to Australia for business purposes. He gave her his mobile telephone number and continued to wait at the airport. However by 3pm he had heard nothing further and after inquiring at the Customs Office was told that Immigration Officers had cancelled the visas of Li Jie and her companions.
17 Merriman telephoned Mary Lu using the phone number on the CRC letterhead. The person who answered the phone and answered to the name Mary Lu allegedly told Merriman that she was not familiar with CRC and was not expecting visitors from China. According to Merriman she went on to say that she had been telephoned at a private residential address but that she did operate a medical practice from the premises called ER. However in a subsequent telephone conversation on the same day, Merriman spoke to a person who said she was Mary Lu's daughter, who told her that Mary Lu did have business interests in CRC International. The daughter told Merriman that her mother had signed a letter of invitation and had been expecting a group of four people to arrive. However her mother had expected them two weeks earlier and did not know that they were arriving on that day. When asked why Mary Lu had not said this in the earlier conversation, her daughter said her mother did not understand English too well. This was confirmed by Merriman's handwritten notes of the earlier conversation which indicated that there had been some difficulty.
18 In the course of the morning interview Zhang made no mention of Mary Lu and according to Peric, when questioned on this, said negotiations on the arrangements had been undertaken by the general manager. At the time of that interview, Peric informed Zhang that he was not telling the truth. He produced the materials faxed by the Australian Embassy and further questioned Zhang on the specifics of the itinerary or meetings intended for his two week visit. Zhang said he was not familiar with it but claimed that he and his companions were also going to be given an opportunity see Melbourne. In the course of the morning interview Peric told Zhang that he was "not telling the truth".
19 A further interview on Saturday afternoon took place between Peric and Zhang again with the use of an interpreter. Zhang had difficulty communicating through the interpreter used in the afternoon interview. His difficulties were exacerbated by jetlag and other factors.
20 According to Peric, Zhang was able to provide little detail about his proposed business program beyond indicating that he would undertake business negotiations with CRC. He had no itinerary and did not know about any other business meetings arranged by his Australian host or interstate visits. Peric said that Zhang's lack of knowledge in relation to negotiations with the Australian Embassy and CRC led him to believe that Zhang might not be a bona fide business visitor. Moreover, the visa office in Beijing had confirmed that letters presented in Chinese in support of the visa applications were believed to be fraudulent. Because of these points, according to Peric, he told Zhang that consideration would be given to cancelling his visa. Zhang was asked for comments on the proposed action and, according to Peric, "given the opportunity to advance reasons why his visa should not be cancelled". Peric told Zhang he had five minutes to think about this and that Peric would come back for his response.
21 Peric's notes indicate that Zhang said his passport confirmed he was a manager, he had a valid passport which was not forged and also had a valid visa and further that he had not committed any offences and should be allowed into Australia. According to Peric's notes, after considering that response he decided to cancel Zhang's visa under s 116(1)(a) of the Migration Act 1958 and advised Zhang of the cancellation both orally and in writing.
22 In a typed report Peric set out his reasons for the cancellation decision:
(a) Zhang had arrived as a class 456 business visitor but could provide little detail about his proposed business program.
(b) The Australian Embassy in Beijing stated that Zhang had provided fraudulent Chinese documents when applying for his visa.
(c) The reasons he had given as to why the visa should not be cancelled did not convince Peric that this action should not take place.
This action was effected through the visa cancellation data-base and by placing a "label inoperative" stamp on the visa label.
23 Before the final decision to cancel his visa was made Zhang had begun to feel unwell as he had not eaten since very early in the morning and it was by then 3pm or 4pm in the afternoon. He said he told Peric this but Peric was not interested. Peric did not deny the allegation. He did mention in his report that earlier in the day and, as his Honour found, no later than 11.05am Zhang was offered "some refreshments" and accepted a glass of water. On that basis Zhang's later complaint, shortly before he was given five minutes to respond to Peric's "concerns", seemed wholly justified.
24 Zhang's allegation having been left unanswered, the learned trial judge concluded it to have been correct and made some critical comments about Peric's treatment of Zhang in that regard.
25 The visas of all five Chinese nationals who arrived in Melbourne on that morning were cancelled and all five were held in detention. Following their detention they made further applications claiming to be refugees. Zhang made an application for a protection visa (866) on 14 July 1997. In that application his occupation or profession was described as "Chef" and the name and address of his employer as the Tian Qiao Hotel. His application indicated that he had been employed at the hotel in that capacity from 1980 to 1997. It also indicated however that he had attended Beijing Economic University between 1980 and 1983. The application said that his passport had been obtained by illegal means in China. In a supplementary document written in Mandarin with an English translation there is reference to his claimed involvement in an organisation called "Path to Freedom" along with a group of other persons including Gang Zi Qiang, Li Shen, Xia Yun Qiao and Li Jie. The document refers to Zhang and the other four persons, together with another two, who went through exit procedures and made the trip to Australia with the help of friends as a response to the arrest of one of their colleagues following a demonstration and the discovery of their meeting place by authorities. A submission to the Department of Immigration and Multicultural Affairs by a migration agent dated 10 September 1997 was also before his Honour. It was set out in that submission that at the time of his departure from China Zhang held a well founded fear of persecution for a convention related reason.
26 The applications of all five Chinese nationals for refugee status were withdrawn prior to the commencement of the proceedings. Although Zhang was cross examined at length about inconsistencies between statements made in his refugee application and statements made in connection with his short term business visa, his Honour made no findings of fact in that regard. As will be seen, the decision in the proceedings at first instance was made on the basis of failures to comply with the requirements of the Migration Act.
27 On 7 August 1997 Zhang filed an application under Part 8 of the Migration Act for an order of review of the decision to cancel his visa. The application came on for hearing on 7, 8 and 9 October 1997 and on 5 November Burchett J made orders in the following terms:
1. It be declared that the cancellation of the visa held by the applicant was not effected lawfully;
2. The said cancellation be set aside abinitio;
3. The respondent pay the applicant's costs of this application.
The Minister has now appealed against his Honour's judgment.
The Statutory Framework
28 Division 3 of the Migration Act (Cth) deals with visas for non-citizens. The Minister is empowered to grant a non-citizen permission, to be known as a visa, to travel to and enter Australia and/or to remain in Australia (s 29(1)). Visas may be permanent or temporary (s 30). There are prescribed classes of visas as well as classes provided for in specified sections of the Act (s 31). Regulations may be made prescribing criteria for a visa or visas of a specified class (s 31(3)). The Regulations may provide that a visa or visas of a specified class may only be granted in specified circumstances (s 40). A non-citizen who wants a visa must apply in the ordinary course (s45(1)). Before the Minister (or his delegate) can consider a visa application it must be a valid visa application (ss 46 and 47). A code of procedure for dealing "fairly, efficiently and quickly with visa applications" is established in subdivision AB of Division 3 (ss 52-64).
29 The grant of visas is dealt with in subdivision AC (ss 65-69). Section 65 in particular provides:
65(1) After considering a valid application for a visa, the Minister:30 Subdivision C (ss 97-115) provides for the cancellation of visas based on incorrect information. Section 104 imposes a duty on a non-citizen to inform an officer if "circumstances change 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". There is a requirement for the Minister to give a visa holder who has been immigration cleared notice of non-compliance with the obligation to give correct information and to provide an opportunity for a response within fourteen days (s 107). The Minister is to consider any response and to decide whether there was non-compliance (s 108). If there has been non-compliance and after considering the visa holder's response and any prescribed circumstances, the Minister may cancel the visa (s 109).
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3)."
31 Subdivision D (ss 116-118) covers the cancellation of visas on other grounds. In particular s 116 provides:
"116(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:32 The powers to cancel a visa under s 109 and s 116 and certain other specified sections of the Act are not limited or otherwise affected by each other. (s 118)
(a) any circumstances which permitted the grant of the visa no longer exist; or
(b) its holder has not complied with a condition of the visa; or
(c) another person required to comply with a condition of the visa has not complied with that condition; or
(d) if its holder has not entered Australia or has so entered but has not been immigration cleared - it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
(e) the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or
(f) the visa should not have been granted because the application for it, or its grant was in contravention of this Act or of another law of the Commonwealth; or
(g) a prescribed ground for cancelling a visa applies to the holder.
(2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.
(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstance in which a visa must be cancelled."
33 Subdivision E sets out procedures for cancelling visas under subdivision D in or outside Australia. The provisions relevant for present purposes are ss 119, 120 and 121. They provide:
"119(1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:34 Regulations prescribing periods or time limits relating to steps in considering the cancellation of visas may prescribe different limits relating to that step and specify when a particular limit is to apply (s 122). It appears no such regulations have been made. Failure to accept an invitation to respond under par 119(1)(b) or 120(2)(c) before the time for giving a response has passed does not prevent the Minister from making a decision about cancellation without taking further action about the information in question (s 123). The Minister may cancel a visa at any time after notice of proposed cancellation has been given under s 119 and after the holder has responded to the notice or said that he or she does not wish to respond or after the time for responding to the notice has passed (s 124). Cancellation cannot be affected where an invitation has been given to comment on information until the comments are given or the holder tells the Minister that the holder does not wish to comment or the time for commenting has passed (s 124).
(a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.
(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.
(3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.
(4) The other provisions of this Subdivision do not apply to a cancellation:
(a) under a provision other than section 116; or
(b) to which Subdivision F applies."
"120(1) In this section, "relevant information" means information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for cancelling a visa; and
(b) is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and
(c) was not given by the holder; and
(d) was not disclosed to the holder in the notification under section 119.
(2) The Minister must:
(a) give particulars of the relevant information to the holder; and
(b) ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and
(c) invite the holder to comment on it.
(3) The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances.
121(1) An invitation under paragraph 119(1)(b) or 120(2)(c) is to specify whether the response to the invitation may be given:
(a) in writing; or
(b) at an interview between the holder and an officer; or
(c) by telephone.
(2) Subject to subsection (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) Subject to subsection (5), if the invitation is to respond at an interview, the interview is to take place:
(a) at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be given in the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:
(a) a later time within that period; or
(b) a time within that period as extended by the Minister for a prescribed further period;
and then the response is to be given at an interview at the new time.
(6) This section is subject to sections 125 and 126."
35 When a decision to cancel a visa is made there is a notification requirement under which the ground for cancellation must be specified and the former visa holder told of the right to have the decision reviewed where such a right exists (s 127).
36 Under the Migration Regulations relating to business (short stay) visas in subclass 456 there are primary criteria to be satisfied at the time of application and at the time of the decision. Criteria to be satisfied at the time of application include:
"456.211 The applicant seeks to enter Australia temporarily, or remain in Australia temporarily, for business purposes and has adequate funds for personal support during the period of the visit.37 There are also criteria excluding any intention to engage in education programs (456.213) and criteria governing applications made within Australia (456.214). Criteria to be satisfied at the time of decision are set out under s 456.22 and include the following:
456.212 The applicant does not intend to engage in work that might otherwise be carried out by an Australian citizen or an Australian permanent resident."
"456.221(1) The applicant meets the requirements of subclause (2) or (3).The other criteria are not relevant for present purposes.
(2) The applicant meets the requirements of this subclause if:
(a) the applicant continues to satisfy the criteria in clauses 456.211 and 456.212; and
(b) the applicant satisfies the Minister that the expressed intention of the applicant only to visit Australia is genuine; and..."
The Decision at First Instance
38 The factual history set out above reflects his Honour's findings of fact.
39 His Honour noted that it was not suggested that Peric did not have the powers of the Minister under s 116. If Peric had been satisfied that Zhang had given incorrect answers in his application about his proposed business activities in Australia then he would have the power to cancel the visa under s 116(1)(d). This would involve a finding that the visa holder would have been liable under subdivision (c) to have the visa cancelled for failure to provide correct information (s 109) had the visa holder entered Australia and been immigration cleared. Where entry and clearance have not occurred but the conditions for cancellation under subdivision (c) are otherwise satisfied, the power of cancellation arises under s 116(1)(d).
40 His Honour found that Peric's decision to cancel the visa under s 116(1)(a) was strongly influenced by the information obtained from the Embassy in Beijing and that this did not involve any real change in the circumstances under which it was granted. He said, at 11:
"I am satisfied Mr Peric did not entertain any idea that the circumstances had really changed since the issue of the visa so that the circumstances which permitted its grant no longer existed. What he thought was that there was reason to suspect the proposed visit was never a genuine business visit, having been arranged for some other undisclosed purpose. Of course, suspicion was not the same thing as proof and he referred in his evidence to doubts in his mind. He did not make his decision under s 116(1)(d), the provision that would have been applicable to a case of actual satisfaction that the visa had been obtained by fraud."He saw the case as raising directly the true construction of s 116(1)(a). He said, at 11:
"In order to have the power to cancel a visa under this provision, the Minister must be satisfied that "any circumstances which permitted the grant of the visa no longer exist". The paragraph does not say "never existed". As a matter of the ordinary meaning of words, the expression "no longer exists" refers to the cessation of a state of affairs that did exist: it does not suggest that alleged circumstances have turned out to have been a fabrication."41 After considering other provisions of the Act his Honour concluded that the decision to cancel Zhang's visa was invalidly reached since Peric was not in fact satisfied of the matters stated in par 116(1)(a) nor did the facts on which he relied fall within its terms.
42 He referred to the provisions of ss 119, 120 and 121 under which the Minister is required to notify the holder of a visa subject to possible cancellation of the grounds for cancelling it. He adverted also to the requirement to provide particulars of information under s 120 and to specify whether the visa holder's response could be given in writing or at an interview or by telephone. It was clear that the ground which, on its true construction, s 116(1)(a) expresses was not notified to Zhang nor were particulars of that ground given to him. No ground other than lack of bona fides and fraud was raised with Zhang.
43 His Honour also had regard to the circumstances in which Zhang was asked to respond to Peric's allegations, namely that he was feeling unwell, he had not eaten since very early in the morning, it was 3pm or 4pm in the afternoon and that he had had nothing other than a glass of water at about 11am. He said, at 15:
"That is not a state of affairs which should be condoned, or permitted to occur again. If Australian citizens were so treated overseas, I have no doubt the Australian government would be concerned. In my opinion, the specification of a reasonable place and period for a visa holder's response to the invitation referred to in s 121 must take account of the circumstances. In the circumstances of the present case, it was not reasonable to require Mr Zhang to respond when and where he had been kept for so long without eating, and after he had indicated (as was by then understandable) that he was feeling unwell."44 His Honour did not accept Peric's evidence suggesting that Zhang had no difficulty in responding.
45 His Honour was invited to decline relief on the discretionary basis that the visa could and should have been validly cancelled under s 116(1)(d). In the events that have happened the visa has now expired and Zhang has gone home. He submitted nevertheless that he was entitled to have an invalid cancellation held to be invalid as it might be important for him on any future application for a visa to be able to say that he had never suffered a lawful cancellation of a visa held by him. His Honour saw, the invitation to discretionary refusal of relief, as an invitation to the Court to sit in the seat of the administrator for the purpose of finding the facts to support a cancellation under s 116(1)(d). The applicant's case on those facts had never been presented and could not have been presented. His Honour remarked that it would be different if the proposition were that the only decision legally open to Peric was to cancel the visa so that his errors of law were immaterial.
46 His Honour referred to the importance of the principle that those who administer the laws of the Commonwealth keep within the law. This applied in relation to the fundamental principle of natural justice. After referring to authorities, including Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621, his Honour said at 18-19:
"Having regard to these statements, it cannot be denied that the detailed criteria contained in the sections to which I have referred in this judgment were intended to provide protection to those persons to whom these criteria might come to be applied. In particular, they were intended to replace, and that in full measure, the rights conferred by the common law as belonging to natural justice."In the event his Honour held that Zhang was entitled to a declaration that the cancellation of his visa was not effected lawfully and an order setting it aside ab initio.
.
.
.
"Those requirements are the protection the Commonwealth offers to the visa holder who arrives in this country. In the present case, the protective requirements were disregarded in more than one respect and the subjection of a person in a vulnerable position vis-à-vis government officials, to a long ordeal without food can only be seen as inhumane. The principal is of the highest importance. Infringement of a person's liberty is likely to be involved when a visa is cancelled, and Mr Zhang has in fact been in custody for several months."
Grounds of Appeal
47 The grounds of appeal, of which there are four, assert that the learned trial judge erred in law in holding:
48 The primary question in the appeal is the application and construction of the condition for the exercise of the cancellation power in s 116 which requires that:
1. That the cancellation of the visa had not been effected lawfully.
2. That, on the facts as found, the cancellation of the visa could not be effected under the provisions of s 116(1)(a) of the Migration Act.
3. That the provisions of s 116(1)(a) of the Migration Act were to be construed as limited to situations where circumstances which had permitted the grant of the visa had once, but presently no longer, existed.
4. That the provisions were to be so construed in the context of a Business (Short Stay) visa (Sub class 456), one criteria (sic) for the grant of which (by reg 456.221(2)(a) of the Migration Regulations) is a continuing state of satisfaction in the appellant in respect of (inter alia) the genuineness of the respondent's proposed business visit to Australia.
Change in Circumstances
49 The Minister submitted that the learned Primary Judge failed to take into account one of the circumstances relevant to the grant of a business visa. That circumstance was said to be the state of satisfaction of the Minister or his delegate that the expressed intention of the applicant only to visit Australia is genuine (reg 456.221(2)(b)). If at any stage that state of satisfaction abates or a Minister or his delegate form the view that the visit is no longer genuine then the belief in its genuineness is a circumstance that no longer exists.
"the Minister...is satisfied that...any circumstances which permitted the grant of the visa no longer exist."
50 Counsel for Zhang pointed out that ministerial satisfaction is a condition governing all criteria for the grant of any class of visa under s 65. If the state of ministerial satisfaction were a "circumstance" for the purpose of s 116(1)(a) then that section would confer a general power to reconsider the grant of visas.
51 The relevant ordinary meanings of the word "circumstance" are as follows:
"1. That which stands around or surrounds; surroundings.52 A circumstance it may be said is a fact and "the state of a man's mind...as much a fact as the state of his digestion" - Edgington v Fitzmaurice (1885) 29 Ch.D. 459 at 483 (Bowen LJ).
2. pl. The adjuncts of an action or fact; in sing. any one of these ME.
3. The state of (esp. pecuniary) affairs surrounding and affecting an agent ME (Mere situation is expressed by "in the circumstances", action takes place "under the circumstances")." Shorter Oxford English Dictionary
and
"1. a condition, with respect to time, place, manner, agent, etc., which accompanies, determines or modifies a fact or event.
2. (usu. pl.) the existing condition or state of affairs surrounding and affecting an agent: forced by circumstances to do a thing...
5. an incident or occurrence;" Macquarie Dictionary
53 That is not to say that every "fact" is a circumstance, nor that a state of mind is a circumstance. Context, on occasion, may permit the inclusion of a state of mind in a statutory classification of "circumstance" but such a usage is not in accordance with ordinary concepts of circumstance. In Wigmore's Principles of Judicial Proof - (Little Brown & Co, 1913) at 96, one of the modes of proof of a state of mind is by reference to "external circumstances" defined as "events or things" which may go to show knowledge, belief or consciousness of something.
54 The ministerial satisfaction which grounds the power to cancel a visa under s 116(1)(a) is satisfaction about the non-existence of "any circumstance which permitted the grant of visa". The circumstance is the subject of the ministerial reflection. It does not as a matter of ordinary construction extend to his own state of mind. The exercise of this important power affecting the position of individuals and possibly their liberty is not to depend upon ministerial satisfaction about ministerial satisfaction. The relevant circumstance which permitted the grant of the visa under reg 456.221(1)(b) is that the expressed intention of Zhang only to visit Australia was genuine. If it were the case that the expressed intention was never genuine, that was a circumstance unchanged by the mere passage of time or the fact of a stated disbelief in the minds of the Minister or the objective discovery of its falsity.
55 The basis therefore, upon which the Minister's delegate purported to cancel the visa was not made out. Assuming the falsity of the statements made in obtaining the visa in the first place, they remained false. The condition necessary for the invocation of s 116(1)(a) was not satisfied. There was no demonstrated circumstance permitting the grant of the visa which no longer existed.
56 Section 116(1)(a) therefore provided no basis for the cancellation of the visa.
Other Issues
57 It was said that the basis upon which his Honour decided this case was not argued before him. But that was not a point taken in the grounds of appeal. Issue was not joined on that matter by the respondent and the constructional point was fully argued before us on the appeal. It is therefore appropriate to dispose of the appeal finally on the basis of that ground.
58 His Honour had rejected a submission that he decline relief on the discretionary basis that the Minister's delegate could have cancelled the visa under s 116(1)(d). Again, that was not a ground of appeal and as his Honour said the Court is not to be substituted for the administrator for the purpose of finding facts. The respondent's case on the facts had never been presented and could not have been presented. His Honour was correct to exercise his discretion and not to embark upon a substituted application of s 116(1)(d) to support the cancellation.
59 In the ordinary course and so that the provisions of the Act are practically workable, it should not be necessary for a departmental officer to nominate to a visa holder that he or she is relying upon one or other paragraphs of s 116(1). What is necessary is that the substance of the ground for proposed cancellation be put to the visa holder in terms that are intelligible and which allow for an informed response in accordance with the procedural requirements of the Act. Again, that was not a point agitated before us. The formal case before this court related entirely to his Honour's construction of s 116(1)(a).
60 There was discussion of the procedural requirements of ss 119-121. The respondent contended that even if the appellant were successful on the construction of s 116, there had been a breach of the requirements of ss 119-121 particularly in relation to the short time permitted to Mr Zhang to respond to the officer's assertion. No notice of contention was filed in relation to that point. In any event, having regard to the conclusions about s 116(1)(a) it is not necessary for the disposition of the appeal to deal with those matters.
61 For these reasons the appeal will be dismissed with costs.
|
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable
Justices French and North. |
Associate:
Dated: 12 February 1999
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | VG 664 OF 1997 |
|
BETWEEN: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Appellant |
|
AND: | ZHANG JIA QING
Respondent |
|
JUDGE: | FRENCH, NORTH AND MERKEL JJ |
| DATE: | 12 FEBRUARY 1999 |
| PLACE: | MELBOURNE |
62 I have had the advantage of reading the reasons of judgment of French and North JJ and agree that the appeal should be dismissed with costs. I gratefully adopt their Honours summary of the matters, including the legislative scheme, giving rise to the appeal.
63 Section 116(1)(a) of the Migration Act 1958 (Cth) ("the Act") empowers the Minister to cancel a visa if he or she is satisfied that "any circumstances which permitted the grant of the visa no longer exist". The issue raised by the appeal is whether the changed circumstances, with which s 116(1)(a) is concerned, relate to the matters in respect of which the Minister is required to be satisfied before granting the visa or extend beyond those matters to include the Minister's satisfaction as to those matters.
64 The issue is of some importance as all visa decisions under s 65(1) of the Act are conditioned on the Minister being satisfied as to the matters set out in the section. Thus, such decisions are not determinations by the Minister as to those matters, rather, they are decisions as to the Minister's satisfaction regarding those matters: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 274 and 277 per Brennan CJ, Toohey, McHugh and Gummow JJ.
65 Under reg 456 of the Migration Regulations ("the Regulations") the criteria to be satisfied at the time of the decision by the Minister to grant a Business (Short Stay) visa to the respondent included:
* the respondent seeks to enter, or remain in, Australia temporarily for business purposes (regs 456.221(2)(a) and 456.211);
* the applicant satisfies the Minister that the expressed intention only to visit Australia was genuine (reg 456.221(2)(b)).
66 Section 65(1) required that the Minister be satisfied, inter alia, as to the criteria set out in reg 456.221(2)(a) and (b) before granting the visa. In one sense the operation of s 65(1) in respect of the criterion in reg 456.221(2)(b) required, as was said by French and North JJ, a decision as to "ministerial satisfaction about ministerial satisfaction". However, in substance, if not form, s 65(1) required a decision as to the Minister's satisfaction regarding the subject matter of the reg 456.221(2)(b) being the genuineness of the respondent's expressed intention only to "visit" Australia. Approached in that way the decision is one as to satisfaction as to the genuineness of an expressed intention rather than one as to satisfaction about satisfaction.
67 Section 116(1), as with s 65(1), conditions a decision to cancel a visa under the sub-section upon the Minister's satisfaction about the matters set out in s 116(1). Section 116(1)(a) is concerned with a change in any circumstance which "permitted the grant of the visa". Such circumstances will, at least, include the matters in respect of which the Minister was required to be satisfied before granting the visa.
68 If the Minister is satisfied under s 116(1)(a) that the person to whom a Business (Short Stay) visa was granted was no longer seeking to enter, or remain in Australia temporarily for business purposes, as was required by reg 456.221(2)(a), then the precondition necessary for the valid exercise of the power of cancellation under s 116(1)(a) will have been satisfied. Another example of a changed circumstance for the purposes of s 116(1)(a) would be where an applicant had satisfied the Minister that he or she met the requirements of any applicable health criteria at the time of the decision to grant the visa (s 65(1)(a)(i)) but no longer met those requirements at the time of entry into Australia. The circumstances to which I have referred are circumstances which permitted the grant of the visa but "no longer exist" thus satisfying the requirements of s 116(1)(a). A similar situation arises as to the genuineness of the visit under reg 456.221(2)(b). If, at the point of entry, the Minister is satisfied that the visa holder's expressed intention only to visit Australia is no longer genuine a pre-condition for the exercise of the power to cancel the visa will have been satisfied.
69 Mr Peric was the Departmental officer who, as delegate of the Minister, cancelled the respondent's visa pursuant to s 116(1)(a). The learned trial judge, Burchett J, concluded that Mr Peric:
"did not entertain any idea that the circumstances had really changed since the issue of the visa so that the circumstances which permitted its grant no longer existed."His Honour concluded that Mr Peric thought that the respondent never intended to make a genuine business visit to Australia with the consequence that his decision related to a circumstance that never existed (a genuine intention to make a business visit) rather than one that no longer existed. Accordingly, Burchett J concluded that the decision to cancel the visa was invalid as it did not comply with the requirements of s 116(1)(a).
70 Before the Full Court, the appellant argued that the relevant changed circumstance was that the respondent no longer satisfied the Minister that his expressed intention only to visit Australia was genuine or that he was seeking to enter Australia temporarily, for business purposes. It was said that as the respondent failed to satisfy Mr Peric, the Minister's delegate, at the point of entry "that he was a genuine business visitor", the lack of satisfaction of that officer differed from the satisfaction of the officer who had issued the visa in Beijing and thus constituted a changed circumstance for the purposes of s 116(1)(a). A "continuing state of satisfaction" of the Minister as to genuineness was said to be the effect of s 65(1), the relevant regulations and s 116(1)(a).
71 As was pointed out by French and North JJ there is no reason why a state of a person's mind cannot be a circumstance. However, the issue arising in the present matter is whether the circumstances with which s 116(1)(a) is concerned are limited to the facts or circumstances in respect of which the Minister is to reach the requisite satisfaction, whether under s 65(1) or under any of the Regulations such as reg 456.221(2)(b).
72 If the Minister's argument is to be accepted it would have the consequence that changed circumstances for the purposes of s 116(1)(a) include the fact that the Minister (or the Minister's delegate) ceased to be satisfied as to a matter in respect of which the Minister was previously satisfied irrespective of whether any changed "circumstance" led to that result.
73 The Minister's submission was conceded also to have the consequence that visas granted under the Act are subject to a "continuing state of satisfaction" that is, they may be cancelled whenever the Minister or his or her delegate ceases to be satisfied of any circumstance which permitted the grant of the visa. That interpretation would leave all persons seeking to enter Australia under visas validly granted under the Act in the position of being subject to the exercise of a power that changes that person's status from a lawful non-citizen entitled to enter Australia to an unlawful non-citizen required to be detained (see s 13, 14, 15 and 189 of the Act) when "ministerial satisfaction about ministerial satisfaction" changes. In the absence of clear and unambiguous words to that effect (see Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 17-18) I would not construe s 116(1)(a) as having such an operation.
74 In my view the sub-section is concerned with a material change in the circumstances, other than the Minister's satisfaction, which led the Minister to be satisfied that the criteria necessary for the grant of the relevant visa were met. Without endeavouring to be exhaustive of those circumstances they will include any matter, other than the ministerial satisfaction, in respect of which the Minister is required to be satisfied under either the Act or the Regulations prior to granting a visa.
75 For the reasons set out above, and those given by French and North JJ, I do not accept the Minister's argument that a change in the Minister's satisfaction, as such, was a changed circumstance for the purposes of s 116(1)(a).
76 The difficulties confronting the Minister in the present case flow from the reliance by Mr Peric on the power of cancellation under s 116(1)(a) rather than on other cancellation powers which might have been, but were not, exercised under the Act. As Burchett J noted Mr Peric:
"did not make his decision under s 116(1)(d), the provision that would have been applicable to a case of actual satisfaction that the visa was obtained by fraud."77 For the above reasons and those given by French and North JJ I am satisfied that the appeal is to be dismissed with costs.
|
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable
Justice Merkel. |
Associate:
Dated:
|
Counsel for the Applicant: | Mr C Gunst QC |
| Solicitor for the Applicant: | Australian Government Solicitor |
| Counsel for the Respondent: | Ms M Kennedy |
| Solicitor for the Respondent: | Armstrong Ross |
| Date of Hearing: | 7 September 1998 |
| Date of Judgment: | 12 February 1999 |
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