FEDERAL COURT OF AUSTRALIA

Kang v Minister for Home Affairs [2019] FCA 186

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1    The applicant, Mr Edward Kang, moves the Court for an interlocutory injunction restraining the respondent, the Minister for Home Affairs, from cancelling his visa. While there are some procedural issues which will be referred to in due course, the jurisdiction for the relief sought is said to be s 39B of the Judiciary Act 1903 (Cth). The Minister opposed the making of the injunction.

2    The circumstances which give rise to the present controversy may be shortly stated. Mr Kang is a citizen of New Zealand. He entered Australia pursuant to a Special Category (Subclass 444) Visa which was granted in October 2012. He still holds that Visa. On 28 March 2017, Mr Kang was convicted in the Local Court of New South Wales of offences under the Crimes Act 1900 (NSW) involving fraud and the making of false or misleading statements with the intention to obtain a financial advantage. He was sentenced to imprisonment for 12 months.

3    It is of some considerable significance to the present application that the offences in respect of which Mr Kang was convicted arose out of his conduct in operating a migration business. In very short terms, it would appear that the key allegation which formed the basis of the charges and conviction was that Mr Kang, through a company, sought and received payments from visa applicants in consideration for the sponsorship of their visa applications. Mr Kang appealed his conviction and sentence to the District Court of New South Wales. That appeal has not yet been heard, though it has been listed for hearing to commence on or in the week of 11 February 2019.

4    An appeal to the District Court in respect of a conviction in the Local Court is a hearing de novo. It is ordinarily determined “on the papers”; meaning that the appeal is essentially determined on the basis of the record of the proceeding in the Local Court. There is, however, provision for the leading of fresh evidence and the cross-examination of witnesses. It should also be noted in this context that s 63 of the Crimes (Appeal and Review) Act 2001 (NSW) provides, in general terms, that if an appeal against a Local Court conviction is lodged, the execution of any sentence is stayed. It follows that Mr Kang was not imprisoned following his conviction and is not currently in prison because he lodged an appeal. Importantly, however, an appeal does not stay the conviction. Thus Mr Kang’s conviction remains unless and until overturned on appeal.

5    On 24 January 2019, Mr Kang received a letter from the Department of Home Affairs. That letter put him on notice that a delegate of the Minister had become aware of grounds for the cancellation of his Visa pursuant to s 116(1AC) of the Migration Act 1958 (Cth). Sections 116(1AC) and (1AD) provide as follows:

116 Power to cancel

(1AC)     Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that:

(a)    a benefit was asked for or received by, or on behalf of, the person (the visa holder) who holds the current visa from another person in return for the occurrence of a sponsorship-related event; or

(b)    a benefit was offered or provided by, or on behalf of, the person (the visa holder) who holds the current visa to another person in return for the occurrence of a sponsorship-related event.

(1AD) Subsection (1AC) applies:

(a)     whether or not the visa holder held the current visa or any previous visa at the time the benefit was asked for, received, offered or provided; and

(b)    whether or not the sponsorship-related event relates to the current visa or any previous visa that the visa holder held; and

(c)    whether or not the sponsorship-related event occurred.

6    The letter from the Department sets out the information which the Minister had become aware of in the following terms:

Information because of which the cancellation grounds appear to exist

Information available to me indicates that a benefit was asked for or received by, or on behalf of, you (the visa holder) from another person in return for the occurrence of a ‘sponsorship-related event’ as defined in s245AQ.

On 28 March 2017, you were convicted of offences under the Crimes Act 1900 (NSW) relating to fraud and the making of false or misleading statements with intention to obtain a financial advantage, and you were sentenced to 12 months imprisonment as a result.

The facts established by the New South Wales Local Court, which formed the basis of your convictions, are set out in the Court’s judgment dated 29 November 2016 in the case of Department of Fair Trading v Edward Kang. Those facts indicate that:

•    A number of individuals entered into contracts with your company (Singapore Oil Pty Ltd), and were asked to pay up to $50,000 in instalments to that company on the basis that an approved sponsor would provide support, in the form of sponsorship, nomination and/or employment, in relation to those individuals’ applications for a ‘sponsored visa’, namely a subclass 457 Temporary Work (Skilled) visa or a subclass 187 (Regional Sponsored Migration Scheme) visa.

•    You advised the visa applicants that they would be sponsored and/or employed by certain businesses and companies owned by you, including Immaculate Hair Concept, Adelaide Petroleum and Hospitality Pty Ltd, Icon Pacific Enterprises, Skylane Worldwide Enterprises, Sam Asian Food Restaurant and Mill and Pen Management Pty Ltd.

•    Payments have been made by those visa applicants to your company as requested.

•    These payments by the visa applicants appear to be a ‘benefit’ in return for the occurrence of a ‘sponsorship-related event’ as defined in s245AQ.

Based on the information above it appears that your visa may be liable for cancellation under s116(1AC)(a) of the Migration Act.

7    The letter invited Mr Kang to comment on that information and show why the ground or grounds for cancellation do not exist or give reasons and any supporting evidence for why his Visa should not be cancelled. Mr Kang, in due course, responded to that invitation. In his response, which was by email from his solicitor dated 29 January 2019, Mr Kang referred to the appeal against his conviction and sentence and noted that the hearing of the appeal was imminent. He submitted to the Minister or his Department that it would be unreasonable to cancel his Visa prior to the hearing of his appeal. Mr Kang’s submissions to the Minister included the following (as drafted):

In such circumstances, in our respectful submission, it would be unreasonable for you to seek to cancel the Visa prior to the hearing and examination of the Appeal by the District Court which includes substantial arguable constitutional grounds also.

We note that you are obliged to take into account any mandatory legal consequences to a decision to cancel the Visa of Mr E Kang, such as detention and removal from Australia. If the Visa was cancelled, it would necessarily follow that Mr Kang would be placed in Immigration Detention pending deportation.

This in turn would have the following consequences: -

1.    It would severely impact legal preparations for the hearing of my Appeal. At this stage, Mr Kang is liaising with my legal team on almost a daily basis, often for many hours at a time. If Mr Kang was in Immigration Detention he would not have ready access tohis legal team, or to my computer or paper records which is needed for the purpose of adequate trial preparation. It would be an injustice to cause Mr Kang to be detained so close to the re-hearing before the District Court.

2.     In the event that Mr Kang was placed in Immigration Detention, a Section 77 Warrant would have to issue to you requiring Mr Kangs ’ attendance at Court on each day of the hearing. This would require you to convey him from Villawood to the Parramatta District Court each day and return each evening. You would have to provide an escort who would accompany Mr Kang through the Court proceedings. This would be an administrative burden on you.

Finally, there are things that Mr Kang would want to say to you in relation to the factual situation which gave rise to the conviction. At the moment Mr Kang is not in a position to go into those details because he has been advised by his legal team not to discuss the circumstances of the matter with any party before the hearing of my Appeal as to do so would prejudice my change [sic] of a fair trial. In those circumstances, Mr Kang finds it hard to address the specifics of the matter(s) until the Appeal is disposed of.

Having regard to the above, it is respectfully submitted that it would not be reasonable to cancel his Visa until the Appeal has been heard and determined, which would appear at this stage to be imminent or something which would take place fairly shortly. We and Mr Kang undertake to advise you as to the outcome of my Appeal within 48 hours of the Judgment being handed down.

8    It would also appear that shortly before the hearing of this application, Mr Kang or his solicitor wrote by email to the Minister’s Department and sought an extension of time in which to make further submissions. That request has not yet been responded to.

9    On 30 January 2019, Mr Kang filed an application in this Court seeking relief, including an injunction restraining the Minister from cancelling his Visa. That application stated that it was made pursuant to s 476A of the Migration Act. The relief sought was specified in the following terms:

Details of relief sought

1.     As to substantive relief sought:-

That the Respondent his servants or agent be restrained from cancelling the Applicant’s Special Category (Sub Class 444) Visa granted on 22 October 2012 until the conclusion of the Applicant’s All Grounds Appeal in the District Court of New South Wales bearing number 2015/48316.

2.    As to interlocutory relief sought:-

(a)    That the Applicant have liberty to proceed in the first instance ex parte.

(b)     That pending further order, the Respondent his servants and agents be restrained from cancelling the Applicant’s Special Category (Sub Class 444) Visa granted on 22 October 2012.

(c)    That the Applicant cause to be served on the Respondent a sealed copy of this originating Application, his Affidavit in support and a sealed copy of these orders with twenty-four hours.

10    There are jurisdictional problems with Mr Kang’s application. The main problem is that a decision by the Minister to cancel a visa pursuant to s 116(1AC) of the Migration Act is not a decision in respect of which the Court has jurisdiction under s 476A of the Migration Act. Nor does the Court have jurisdiction in respect of any proposed decision under s 116(1AC). It should also be noted in this context that if, as appears to be envisaged, the decision whether or not to cancel Mr Kang’s Visa is not to be made by the Minister personally, it would be a “Part 5-reviewable decision” (see s 338 of the Migration Act) and would therefore be reviewable by the Administrative Appeals Tribunal (see s 348 of the Migration Act).

11    Mr Levet of counsel, who appeared for Mr Kang at the hearing of this application, acknowledged but did not concede the jurisdictional issue. He indicated that Mr Kang’s solicitor had in fact endeavoured to file an application seeking to restrain the Minister or his delegate from cancelling his Visa pursuant to s 39B of the Judiciary Act. It would appear, however, that the Registry, perhaps erroneously, refused to accept that application, apparently on the basis that if Mr Kang wished to commence proceedings, he was required to do so pursuant to s 476A of the Migration Act. In those circumstances, and given the apparent urgency of the application, the pragmatic and preferable course which should be taken is to approach Mr Kang’s application on the basis that it was in fact made under s 39B of the Judiciary Act, not s 476A of the Migration Act. Ms Rayment, who appeared for the Minister, did not oppose that course.

12    Even if Mr Kang’s application is approached on the basis that it is made pursuant to s 39B of the Judiciary Act, there are nonetheless a number of fundamental problems with the application.

13    The first difficulty is that Mr Kang’s application is premature. No decision has been made in respect of the cancellation of Mr Kang’s Visa; indeed, there is no basis upon which to conclude that any such decision is even imminent. Mr Kang has made submissions to the Minister or his Department. Those submissions will undoubtedly need to be considered by the decision maker. Mr Kang has also sought an extension of time to make further submissions. That application for an extension of time has not yet been responded to, no doubt because it was only made in very recent times. It may well be granted, and Mr Kang may be permitted to make further submissions.

14    Second, if a decision is made to cancel Mr Kang’s Visa, he is able to apply for a review of that decision in the Tribunal. A review by the Tribunal is a merits review. That would undoubtedly be the appropriate course for Mr Kang to take, should his Visa be cancelled and should he wish to challenge that decision.

15    Third, and perhaps most fundamentally, Mr Kang has not articulated any reasonable ground for contending that any decision by the Minister or his delegate to cancel his Visa before the hearing of his District Court appeal would be erroneous or involve any jurisdictional error. The important point to emphasise in that regard is that it is not proposed or suggested that Mr Kang’s Visa could or would be cancelled on character grounds pursuant to s 501 of the Migration Act or similar provisions. As has already been noted, the possible or proposed cancellation of Mr Kang’s Visa is pursuant to s 116(1AC) of the Migration Act.

16    It could perhaps be seen that if the proposed cancellation of Mr Kang’s Visa hinged or depended on his conviction and sentence, he might have an arguable case for restraining the Minister from making a decision to cancel in circumstances where that conviction may be overturned on appeal. That, however, is not this case. Cancellation under s 116(1AC) does not hinge on a conviction or sentence. It is conceivable that the Minister, through his delegate, could cancel Mr Kang’s Visa on the basis of information in his possession, even if Mr Kang’s conviction is eventually overturned.

17    It may be accepted that the Minister or his delegate, at this stage at least, appears to be relying on facts or information which appear to have emerged in the Local Court proceedings. The factual matrix which underlies the court proceedings and the possible cancellation decision undoubtedly is effectively the same. It does not follow, however, that any cancellation under s 116(1AC) necessarily depends on any conviction or sentence or the outcome of the appeal. Nor does it necessarily depend on the evidence which was led in the Local Court or may be led in the District Court.

18    In all the circumstances, I am unable to accept that Mr Kang has articulated any arguable case, let alone a prima facie case, for restraining the Minister or his delegate from making any decision in respect of the cancellation of his Visa prior to the hearing of his District Court appeal. Given the absence of any arguable case for the relief sought, the question of the balance of convenience strictly does not arise. I should note, however, that in any event I consider that Mr Kang’s application is premature and that he has not demonstrated that the balance of convenience would support the making of an injunction.

19    It may be accepted that Mr Kang will suffer some considerable inconvenience if his Visa is cancelled prior to the hearing of his appeal. The likely outcome of a visa cancellation is that Mr Kang would be taken into immigration detention. That would undoubtedly cause some considerable inconvenience and difficulties for the conduct of his appeal. That said, it would appear that he has retained experienced and highly qualified counsel to represent him on his appeal. It follows that any difficulties caused by his immigration detention would not be insurmountable. Perhaps more significantly, if the Minister by his delegate in fact cancels Mr Kang’s Visa before the hearing of his appeal, that would be the appropriate time to seek appropriate relief. That circumstance, however, has not yet come to pass and indeed may not come to pass. Indeed, if the Minister or his delegate exercise some degree of common sense and good administrative practice, it might reasonably be expected that they would await the outcome of the appeal before making any decision. That, however, is ultimately a matter for the Minister or his delegate.

20    I should note two further submissions that were made. It was submitted that Mr Kang may not be able to make full and candid submissions to the Minister in respect of the possible visa cancellation because that might prejudice his appeal. That submission, with respect, is somewhat speculative and without merit. It assumes that something that Mr Kang might put to the Minister may be an admission against his interest, which could or would then be used against him in the appeal. There is, however, no basis to infer that that is likely to occur. Indeed, in my view it is doubtful that Mr Kang would be likely to make any admission against his interest in his submissions to the Department. In any event, it is even more doubtful that the Department would, if that occurred, convey that admission to the independent prosecutor for use in the District Court appeal.

21    Finally, in the course of submissions, it was suggested that the timing of the communication of the Minister’s intention to consider the cancellation of Mr Kang’s Visa and the hearing of his District Court appeal may not have been coincidental. The implicit suggestion appeared to be that there may have been an element of bad faith on the part of the Minister or his Department. It is sufficient to note that there was and is no basis whatsoever for that submission and it is rejected.

22    For all of the foregoing reasons, there is no basis for the granting of an injunction against the Minister and Mr Kang’s application should be dismissed with costs.

Associate:    

Dated: 22 February 2019