FEDERAL COURT OF AUSTRALIA
Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235
IMMIGRATION – visas – cancellation – notification of possible grounds for cancellation – identification of grounds – particulars – whether sufficient particularity – information underlying grounds – notification process as code of procedural fairness – compliance to be judged by reference to statutory purpose of fairness – state of satisfaction necessary in respect of existence of ground for cancellation – whether onus wrongly placed on visa holder to show cause against cancellation – whether state of satisfaction existed.
Migration Act 1958 (Cth) s 116. S 457(1)(c), s 119, s 120 and s 121
Migration Regulations
GU v Minister for Immigration and Multicultural Affairs [1999] FCA 991 referred to
ZHAO JINGFU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 70 of 2000
FRENCH, HILL & CARR JJ
1 SEPTEMBER 2000
PERTH
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
ZHAO JINGFU APPELLANT
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AND: |
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The Appellant 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.
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IN THE FEDERAL COURT OF AUSTRALIA |
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W 70 OF 2000 |
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BETWEEN: |
APPELLANT
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AND: |
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
THE COURT:
Introduction
1 Zhao Jingfu (Mr Zhao) applied in 1997 for a temporary resident’s visa under the Independent Executive category pursuant to subclass 457 in the Migration Regulations. The visa was granted in part upon the basis that Mr Zhao would be establishing a business in Australia in which he would be personally involved. The visa having been granted, he returned to China pending the processing of applications for visas for members of his family. There were complications associated with that process arising out of requirements for specialist medical examinations of one of his children. In the event, some seven months passed and he had not returned to Australia. He was interviewed at the Australian Embassy in May 1999 and subsequently a notice of intention to cancel his visa issued. Submissions were made on his behalf in relation to the mooted cancellation. In the event his visa was cancelled on the basis he no longer had a genuine and realistic commitment to establishing and being involved in a business in Australia. That is to say, one of the circumstances which permitted the grant of his visa no longer existed.
2 Mr Zhao sought judicial review of that decision which was made by a delegate of the Minister. His application was dismissed by RD Nicholson J and he now appeals to this Court. The case raises questions concerning the procedures for notification to visa holders of possible cancellation of their visas and the way in which the cancellation decision must be approached.
Factual Background
3 Mr Zhao is a national of the Peoples Republic of China, who was born on 21 August 1958. He is married and has three dependent children. In 1988, Mr Zhao was employed as a manager by the Beijing Economy Trade and Technology Development United Company. The company is administered by the Beijing Municipal Government. Its business includes the manufacture and sale of industrial machinery and equipment, electrical and electronic appliances, wholesale and retail of textiles, real estate investment and investment in restaurants and hotels. In 1989, Mr Zhao became a Departmental Manager within that company and in 1990 was transferred to the Domestic Trading Department where he was mainly responsible for developing the company’s trading operations, particularly in relation to construction material. In 1992, he was promoted and seconded to Beijing Puliqun Trading Company where he took up an appointment as Assistant General Manager. In 1993 he was appointed Deputy General Manager of that company.
4 On 10 May 1997, Mr Zhao came to Australia on a visit under a Temporary Business Visa Subclass 456 which expired on 17 May. On 14 May a migration agent, John Wang, lodged an application, on his behalf, for a temporary resident’s visa under the Independent Executive category pursuant to subclass 457. Mr Zhao foreshadowed that his family members would apply for entry visa after his application was approved. The letter in support of the application advised that a company had been registered under the name of Fuju Industry Pty Ltd on 22 April 1997 of which he was both the managing director and main shareholder. The letter went on:
“Mr Zhao will be the managing director of Fuju – the most senior executive position within the company. He will contribute directly to the success of the company’s business operations in Australia.
Please note that net assets of A$228,000 has been transferred to Australia. The funds will be used to invest in the company for the purpose of conducting and establish company’s business activities.” (sic)
A copy of a bank statement was attached.
5 A more detailed submission was lodged in support of the application on 3 June 1997. Reference was made to Mr Zhao’s business experience in China. It referred to the registration in Australia of his company, Fuju Industry Pty Ltd, and his desire to promote Chinese and Australian trade relationships by marketing Australian products in the Chinese market. It went on:
“More importantly, Mr Zhao would be able to pass his many years of expertise in dealing with the Chinese market on to its future local employees, and to provide employment to as many Australian residents as possible.
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Mr Zhao is the director and main shareholder of the company. He therefore will personally involved in every important aspects of the company business in Australia. (sic)
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.
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Mr Zhao will be the Managing Director of Fuju – the most senior executive position within the company. He will contribute directly to the success of the company’s business operations in Australia.”
The submission set out what Mr Zhao’s duties and responsibilities would be as managing director of Fuju and the company’s policy of minimal reliance on expatriate staff. The latter, it was said, would require a considerable investment by the company in the training of local staff. Mr Zhao was to “play an important role in this training”:
“The incumbent will pass on his skills and experience to the company’s Australian staff by way of supervised hands-on training on an ongoing basis. Because Mr Zhao is specialised in trade with Chinese companies his skills are rarely found in Australia. The presence of the nominee in Australia will provide a unique opportunity for his Australian colleagues to be trained in this industry.”
Reference was then made to his qualifications and work experience and his transfer of some funds to Australia as a demonstration of his “serious business commitment to Australia”. Accompanying the submission was a record of the investment of A$228,000 with the ANZ Bank on ANZ Bank letterhead dated 12 May 1997. Also included was a business proposal in respect of Fuju Industry Pty Ltd. By a letter dated 9 February 1998 the Department of Immigration and Multicultural Affairs drew Mr Zhao’s attention to the requirements of reg 457.223(7) setting out the requirements for a subclass 457 visa as an independent executive. It was pointed out that it was necessary for him and/or his spouse to show that he had net assets of A$250,000. The Department was not satisfied that sufficient information had been provided. He was also asked to provide a description of the proposed business and evidence of market research and business planning. Mr Zhao’s migration agent, John Wang, responded to the Department’s letter by a letter of 12 February 1998. The letter provided evidence of the term deposit with the ANZ Bank although, it would seem, that this had already been provided with the letter of 3 June 1997. The letter also stated:
“As Managing Director of his company, Mr Zhao will be involved in every important aspects (sic) of the company’s daily operations. His duties and responsibilities will include but not limited to developing policy and strategic business plans and related credit, marketing, personnel and systems enhancement policies; developing quality assurance procedures and capital development plans; managing the implementation of plans; overseeing the day to day operations of the companies; ensuring that all businesses are conducted in accordance with legal and regulatory obligations and that satisfactory relationships are maintained with the Government and regulatory bodies.”
It was indicated that his dependents could undergo medical and x-ray examination soon.
6 On 14 March 1998, the Department advised Mr Zhao that his application for a subclass 457 visa had been refused. On 14 April he sought review of this decision by the Migration Internal Review Office. On 14 September 1998 he was advised by the review officer that it had been decided that he did meet the net asset requirement in clause 457.233(7)(d) of subclass 457 in Schedule 2 of the Migration Regulations. After considering additional material which had been provided by the migration agent, the review officer found that he had net assets of not less than A$250,000 to conduct or establish the business in Australia. On that basis he remitted the primary decision to the relevant office of the Department in New South Wales for reconsideration under s 341(2)(c) of the Migration Act 1988. The original application then remained to be assessed against other legal requirements for the grant of a visa in subclass 457.
7 On 19 October 1998, Mr Zhao was granted a long term business entry visa subclass 457 with an expiry date of 19 October 2002. He returned to China on 20 October 1998 to await the issue of the visas for his wife and children. His hope was that the visas would be issued by the end of the year. It was, he said, his intention to return to Australia with his family at the end of that time. On 9 October 1998, the Department requested that his wife and children undergo medical examinations. On 14 December 1998 there was a further request that his daughter be assessed by a specialist paediatrician and/or developmental psychologist concerning what was said to be her “retarded development”. The report was to address the need for special schooling and the prognosis for independent living and future employment in adulthood. Also required was an endocrinologist’s report. Mr Zhao said this further medical examination was held in early January 1999. Because the examinations were proving to be stressful for his wife, he felt it was important he be present in China with the family until the medicals were resolved. In January 1999, as Chinese New Year celebrations were four weeks away, he decided to delay his departure to Australia to celebrate the occasion with his family and his extended family. As the medical examinations had been completed he said he was expecting and hoping the visas to be granted in the weeks following the Chinese New Year. Several attempts by his migration agent to contact the office of the Department of Immigration and Multicultural Affairs in Beijing about the visas for his family were said to have been unsuccessful in obtaining any definitive answer. He stayed in China during March and April to follow up on progress with the Department as his wife had wanted him to take care of the matter before he returned to Australia. At this time, he said, it remained his intention to further his business career and commitment to business in this country.
8 On 17 April 1999, Mr Zhao received a letter from the Immigration Section at the Australian Embassy in Beijing requesting that he attend an interview on 17 May 1999. The officer signing the letter on behalf of the Second Secretary said:
“I am requesting an opportunity to meet with you to find out more about your business activities in Australia.”
The letter listed documents that he should provide to the office, they being:
1. Evidence that you have conducted business activity after your were granted 457 visa.
2. Evidence of any established links with Australian companies.
3. Your passport.
4. Identification cards.
5. Any additional information you wish to present in support of your application.
On 17 May, he attended an interview at the Australian Embassy in Beijing with Mr Wang. The interview was conducted in Mandarin through an interpreter.
9 On or about 21 May 1999, Mr Zhao received a letter from the Department giving notice of intention to cancel his visa under s 116 of the Migration Act. The letter was in the following terms:
“NOTICE OF INTENTION TO CANCEL UNDER SECITON 116 OF THE MIGRATION ACT 1958
Dear Zhao Jing Fu
It has come to the Department’s attention that there may be a ground for cancellation of your visa under section 116 of the Migration Act 1958 because you departed Australia the second day after getting subclass 457 visa and have not been to Australia till now.
If this is the case, your visa may be cancelled under section 116(1)(a) which sets out the following ground for cancellation: any circumstances which permitted the grant of the visa no longer exists.
The Migration Act 1958 gives you the opportunity to comment on this ground for cancellation and to give reasons why your visa should not be cancelled.
You should give a written answer why your visa should not be cancelled. Your answer should say:
. why you think the ground(s) for cancellation does or does not exist; and
. why you think your visa should not be cancelled.
You must provide your response by 17/06/1999. If you do not respond within that time, a decision on whether to cancel your visa will be made using information already held by the Department.
If you are unable to respond by the date above, you should contact Temporary Residence section at the above address before 17/06/1999 to seek an extension of time. You will only be given an extension of time if you have a legitimate reason for not responding by 17/06/1999.
Deciding whether to cancel your visa is a two-step process. An officer will decide whether there is a ground for cancellation of your visa. Your written response will be taken into account. If the officer decides that there are no grounds for cancellation, your visa will not be cancelled.
If the officer decides that there is/are a ground(s) for cancellation, a decision will be made on whether to cancel your visa. Your written response will be taken into account.
The decision-maker will take into account matters such as:
the purpose of your travel to and stay in Australia;
whether you intend a temporary or permanent stay in Australia;
whether you have previously travelled to or spent any time in Australia;
your present circumstances, such as:
- the length of your lawful residence in Australia;
- the strength of your family, social, business and other ties with
Australia;
- the degree of hardship which may be caused to Australian citizens or permanent residents if your visa were cancelled;
- any unreasonable hardship you might suffer if your visa were cancelled;
- your ties to other countries;
the circumstances in which the ground for cancellation arose;
the seriousness of the ground for cancellation;
the evidence of the business you have conducted in or in relation to Australia since the grant of 457 visa;
your behaviour in relation to the Department.
You should address these matters in your response.
If your visa is cancelled you will become an unlawful non-citizen, unless you are granted a further visa.
If a person (other than a family unit member) holds a visa because you hold a visa and your visa is cancelled, then that other person’s visa may also be cancelled.
If you have any queries please contact Temporary Residence Section.
Yours sincerely
For Second Secretary
17 May 1999”
On 14 June 1999 Mr Zhao’s new migrant agent, Megan Hoey of Australian Visa and Migration Services, sent a letter denying any change of circumstances for the purposes of s 116 and contending that the notice of intention to cancel did not comply with the requirements of the Act. She also sought copies of notes and recordings of discussions between the Department and Mr Zhao. Garry Kane, a Senior Migration Officer at the Australian Embassy replied, on 23 June, referring to Mr Zhao’s attendance at the Embassy with his representative, John Wang. He said that the notice of intention to cancel was provided orally to Mr Zhao at the interview and that a written notice was given to him at the Embassy reception a short time after. However, the notice in question was sent by mail to his former agent’s law office in Beijing and he did not have it nor was he aware of its contents when he attended the interview on 20 May. In the letter of 23 June, Kane stated that the decision to pursue the cancellation was primarily due to his absence from Australia for seven months since the grant.
10 The letter of 23 June included the following important passage:
“Essentially, the decision to pursue cancellation comes down to our concern that in the seven months since the grant of his subclass 457 visa up until the date of interview, Mr Zhao spent only one day in Australia. In our view, this is inconsistent with the fact that when Mr Zhao was granted a visa as an independent executive at The Rocks it was done on the basis that, inter alia:
. Mr Zhao proposed to conduct a business activity in Australia that would be conducted by him as principal [Migration Regulation 457.223(7)(a)(I)];
. Mr Zhao had “a genuine and realistic commitment to maintain or obtain an ownership interest in a business in Australia; and to maintain a direct and continuous involvement in the management of the business; and to make decisions that affect the overall direction and performance of the business from day to day” [Migration Regulation 457.223(7)(f)].
In light of our concerns, we conducted an interview with Mr Zhao on 20 May 1999 with the intention of ascertaining Mr Zhao’s business activities in Australia, both existing and proposed. Unfortunately the information provided by Mr Zhao at interview did not satisfy us that Mr Zhao continued to meet the criteria for Independent Executives described above. Accordingly, we gave Notice of Intention to Cancel pursuant to s 116(1)(a) of the Migration Act, namely, “any circumstances which permitted grant of the visa no longer exist”.”
11 On 29 June 1999, Australian Visa and Migration Services made a submission to the Department. It enclosed various documents, including documents evidencing Mr Zhao’s investments in Australia since the grant of his visa and his intention to trade and develop business activities in Australia. The agents referred to the fact that the letter of 23 June 1999 had mentioned clause 457.223(7)(f) which, they said, was not in existence at the time the visa was granted and therefore was not applicable as a basis upon which cancellation could be effected under s 116. Accordingly it was argued that Mr Zhao was not legally required to demonstrate that there was a need for him to be temporarily in Australia to conduct or establish the proposed business. There was an attack upon the notice. The submission then moved to the substance of the cancellation ground and put the proposition that, from the outset, the Department had notice that Mr Zhao intended to have his family accompany him while he established trade links in Australia with China. The Department had been advised that a company had been registered under the name of Fuju Industry Pty Ltd and that Mr Zhao was its managing director and shareholder. The submissions and disclosures previously made, it was said, revealed a course of conduct which showed Mr Zhao had a genuine and realistic commitment to the development of a business activity in Australia in accordance with clause 457.223(7), paragraphs (a), (b) and (c). The submission referred to the original submissions in support of the application for the grant of the visa. By way of conclusion it was said:
“We reiterate, and the course of events clearly show that Mr Zhao has been honouring what he undertook to do, but only in so far as he has been allowed, by DIMA. Mr Zhao takes issue with the way his case has been handled from the outset.”
A number of points were then made on behalf of Mr Zhao relating to:
1. The lengthy appeal process which he had undertaken with respect to his visa and associated with that the fact the proposition that it was not unreasonable that he did not pursue trade opportunities with Australia as actively as was expected by DIMA.
2. His investment of a considerable sum in an Australia company, Puliqun (Australia) Pty Ltd, which it was said holds substantial shares in the largest and most successful group of Chinese restaurants in Australia, the Kam Fook Group.
3. That Mr Zhao was occupied with his daughter who had been ill and required medical treatment.
4. That he was awaiting of the determination by DIMA of his family’s visas so that his wife and children could accompany him to Australia.
5. That he held the reasonable and uncontradicted belief that he was not under any legal obligation to travel given that his visa was granted for a period of four years.
6. That the grant of the visa was not subject to any conditions to the contrary and at no time was Mr Zhao advised he was under obligation to make further regular visits to Australia.
7. The confiscation of his passport on the day of the interview he had regarded with disbelief and, understandably, had not actively pursued business activities throughout that period. It would not be prudent for an experienced businessman, such as Zhao, to do so. At no time, it was said, had the genuineness of his intentions been impugned.
By way of summary it was said in the submission:
“The legal question for determination is: if any circumstances which permitted the grant of the visa are called into question under section 116(1)(a), the question is whether they do not now exist as they formerly did, that is, at the time of the issue of the visa. Clearly, the circumstances have not changed.
In light of the above submissions, given that Mr Zhao is:
(i) currently engaged in business with Australia in the form of investment;
(ii) actively seeking further business opportunities by conducting research and negotiating contracts;
(iii) has previously travelled to Australia for the purpose of business;
(iv) has explained the reasons for his lack of substantial travel in the last 7 months;
(v) in a situation where present circumstances have not changed;
(vi) still a director of Puliqum and Kam Fook;
(vii) compliant with, and had complied with immigration law of Australia to date; and
(viii) and has always been cooperative with DIMA in a timely and willing manner;
then there are no circumstances which evidence that the circumstances which permitted the grant of his visa, no longer exist in the terms contemplated by the Act and the case law interpreting it.”
There was a delay following this submission.
12 On 18 August 1999, the migration agents wrote to the Department in Beijing noting that although lengthy submissions had been sent on or about 29 July they had heard nothing. Further submissions were made in that letter including a reference to the decision of Mansfield J in GU v Minister for Immigration and Multicultural Affairs [1999] FCA 991. They referred again to Mr Zhao’s substantial investment in Kam Fook (Hurstville) Pty Ltd through Puliqun. It was submitted that the matter should not be further delayed. Mr Zhao wanted the visa applications to be quickly finalised so that he could get on with business in Australia. He was extremely anxious about the matter. He had found it both distressing and bewildering.
13 On 8 October 1999, Mr Garry Kane advised Mr Zhao that his visa had been cancelled on 7 October 1999. In the covering letter which accompanied the record of decision he said:
“The Department has decided that there is a ground for cancellation of your visa under paragraph 116(1)(a) because circumstances which permitted the grant of the visa no longer exist.”
Under the heading “Evidence of grounds for cancellation” the record of decision stated:
“Information concerning business activitiesconducted since visa grant and proposed business activities provided by visa holder at an interview conducted at the Australian Embassy on 17 May 1999. The interview was conducted with the assistance of an interpreter in the Mandarin language. The visa holder was asked to provide details of business activities undertaken since the grant of his subclass 457 visa. Stated that he established a company in Australia in August 1998 (Kam Fook (Hurtsville) Pty Ltd) which is involved in importing/exporting. The company is located in Sydney. He was unable to provided (sic) the exact address of the business. The company is currently operating from the visa holder’s accountant’s office. Claimed that the business has one employee but no evidence of employment sighted. He claimed that the major focus of the business was the importation of the Caroma dual flush toilet system to China. At interview the visa holder presented advertising brochures. He did not at that stage hold a business card for the Australian business operation. The visa holder has not been able to provide substantial documentary or other evidence of completed or intended business activities relating to the Australian business. He claimed to have invested AUD$300 000 into the Australian business (ANZ record of investment held on file).
To the point of interview the visa holder claimed that his Australian business operations had been confined to negotiations. He was however unable to provide any specific evidence of such negotiations stating that in accordance with Chinese business practice no records were kept. At interview the visa holder was unable to establish that he continued to have a genuine and realistic commitment to establishing and operating a business in Australia.”
14 Reference was then made to the submissions put on behalf of Mr Zhao and there followed a statement of reasons for the cancellation. In those reasons Mr Kane referred to Mr Zhao’s departure from Australia one day after the grant of the visa and the fact that he had not returned as at 17 May 1999 when he was interviewed at the Australian Embassy in Beijing. There was limited documentary evidence of business activities and although there was evidence of holding funds which could be used for investment purposes, this was not of itself indicative of active involvement in the management of a business. He found Mr Zhao to have been unconvincing in his claims concerning his commitment to establishing and managing an Australian business. There were no details of serious business activities or negotiations. He was not able to clearly set out business intentions in Australia. Mr Kane then said:
“I have reached the conclusion that in both his lack of business activity and responses to questions at interview the visa holder has been unable to demonstrate that he continues to have a genuine and realistic commitment to own and operate a business in Australia.”
He considered arguments advanced that paragraphs 457.223(7)(e) and (f) of the Second Schedule to the Migration Regulations were not in effect at the time the application was lodged. He observed, however, that those parts of the Regulations were not the principal areas of concern when considering the question of cancellation and had not been used when reaching the cancellation decision. He rejected claims of deficiencies in the procedures involved in the notification of intention to cancel the visa. Mr Kane said:
“He was requested to attend an interview to discuss his business activities since visa grant and at this interview was notified verbally of the intention to cancel his visa. This verbal notification was followed by formal written advice.”
15 He referred to Mr Zhao’s contention that he had been prevented from undertaking business activities in Australia because of the delay in deciding his family’s visa applications. As to this, he said:
“Mr Zhao was granted his subclass 457 visa on 19 October 1998 and departed the following day and had not returned to Australia at the time he was interviewed (17 May 1999), a period of almost seven months. While absence from Australia in itself is not an indicator of business intention there was no legal impediment to Mr Zhao returning to conduct business in this period.”
In coming to the assessment, Mr Kane said he had taken into account Mr Zhao’s response to the notice of intention to cancel and the guidelines set out in the MSI Visa Cancellation under Subdivisions D, E and F. The guidelines were not on the record before the Court and evidently not before his Honour.
16 On 3 December 1999 Mr Zhao filed an application for an order of review of the decision pursuant to s 475(1)(c) of the Migration Act. The application was heard by RD Nicholson J on 13 March 2000 and on 12 April 2000 his Honour dismissed the application with costs. Mr Zhao now appeals to the Full Court against the judgment of his Honour.
Statutory Framework
17 Division 3 of the Migration Act provides for visas to be issued to non-citizens. The Minister is given the power to grant a non-citizen permission, 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). The categories of visas may be prescribed by regulation although some are found in specified sections of the Act (s 31). Regulations have been made pursuant to s 31(3) prescribing criteria for visas of a specified class and may provide that such visas may only be granted in specified circumstances (s 40). Cancellation of visas obtained on incorrect information is provided for in subdivision C (ss 97-115). Cancellation of visas on other grounds is dealt with in subdivision D (ss 116-118). Section 116 which is in issue in this case provides:
“116(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(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 circumstances in which a visa must be cancelled.”
Procedures for the cancellation of visas under Subdivision D are set out in Subdivision E. Relevant for present purposes are ss 119, 120 and 121 which 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:
(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.”
18 Section 124 empowers the Minister to 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. When a decision to cancel a visa is made, the visa holder must be notified and the grounds of cancellation must be specified with the visa holder being told of the right to have the decision reviewed where such a right exists (s 127).
19 At the time that the application for the visa was made, Schedule 2 of the Migration Regulations provided for a class of visa entitled Subclass 457-Business (Long Stay). Among the criteria to be satisfied at the time of decision was that set out in subclause 457.223(7) in which it was said:
“(7) Independent executives The applicant meets the requirements of this subclause if the Minister is satisfied that:
(a) the applicant proposes to develop in Australia a business activity that will be:
(i) conducted by the applicant as a principal; and
(ii) of benefit to Australia; and
(b) the applicant has a genuine and realistic commitment:
(i) to maintain or obtain an ownership interest in a business in Australia; and
(ii) to maintain a direct and continuous involvement in the management of the business; and
(iii) to make decisions that affect the overall direction and performance of the business from day to day; and
(c) nothing adverse is known to Immigration about the applicant’s business background; and
(d) the applicant has net assets of:
(i) not less than AUD250,000; or
(ii) a lesser amount that the Minister considers to be adequate;
to conduct or establish the business.”
20 On 1 November 1997, by reason of Statutory Rule Number 288 of 1997, two further subparagraphs were added to the criteria set out in 457.223(7), they being (e) and (f) in the following terms:
“(e) the applicant has personal attributes and background that are relevant to, and consistent with, the nature of the proposed business; and
(f) the applicant has demonstrated that there is need for the applicant to be temporarily resident in Australia to conduct or establish the proposed business.”
Grounds of Appeal
21 It is unnecessary to set out the grounds of appeal verbatim. The issues which they raise for determination are:
1. Whether the notice of intention to cancel the visa failed to comply with the Act for want of providing particulars of the grounds relied upon as required by s 119.
2. Whether the decision to cancel the visa was based upon grounds other than those shown in the notice of intention to cancel.
3. Whether the Minister’s delegate wrongly placed the onus upon Mr Zhao to show why his visa ought not to be cancelled.
Cancellation of a Visa – The Statutory Procedures
22 The provisions of Subdivision E of the Migration Act, with which the Court is here concerned, are part of a codified set of procedures analogous to the common law rules of procedural fairness which relate to the right to be heard.
23 Section 119 addresses both the content and the manner of the notification to be given by the Minister or the Minister’s delegate before proceeding to cancellation under s 116. Dealing first with its content, the notification must contain a statement “that there appear to be grounds for cancelling” the visa. It must provide particulars of the grounds and “of the information (not being non-disclosable information) because of which the grounds appear to exist”. The visa holder is to be invited to show within a specified time that the grounds do not exist or that there is a reason why the visa should not be cancelled (s 119(1)).
24 The section contemplates that when the notice is issued the decision-maker will not have formed a concluded view on the question of cancellation. The notice is to specify no more than that there “appear” to be grounds for cancellation. The plain statutory intention of this verbal formula is to assure the visa holder that the matter has not been finally decided. It also indicates that at this stage the decision-maker must not have finally decided the matter. It is quite inappropriate therefore to entitle the notice given as a “Notice of Intention to Cancel Visa”. This suggests, that without hearing from the visa holder, the decision-maker has already reached a state of satisfaction necessary to cancel the visa under s 116. It is misleading not only to the visa holder but also, and perhaps more dangerously, to the official who issues it. The notice in this case however went on to carry out the statutory requirement of notifying the visa holder that “there may be a ground for cancellation” of the visa.
25 Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open. The supporting information will include a description of any evidence upon which the grounds are based. The grounds, as particularised, may be inferences from the evidence and in that sense conclusionary. The other element of the notice is the invitation to the holder to show, within a specified time, that the grounds do not exist or that there is a reason why the visa should not be cancelled. It is important to note that the terms of the invitation do not reflect the imposition upon the visa holder of a statutory onus at this point which, if not satisfied, will result in the visa being cancelled. That would no doubt be the case if a firm intention to cancel the visa had been formed and the visa holder’s task was to persuade the decision-maker to abandon that intention. The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not.
26 The mode of notification may be prescribed. There is, however, no prescription, so notice may be given under s 119 in any way the Minister thinks appropriate (s 119(2)). It may be notified orally (s 119(3)). The section does not indicate explicitly whether notice may be given in more than one way and at more than one time. However provided the statutory purpose of fairly informing the visa holder is served, there is no reason why the requirement of notification which is substantive rather than formal could not be met by both written and oral notification. It may be that the notification could be found in more than one document. So an initial document may, at the request of the visa holder, be the subject of greater elaboration. At a practical working level a degree of flexibility is important. The requirement of notification of grounds of possible cancellation is not a requirement for delivery of some form of pleading which may then be the subject of strict construction and technical criticism. The overall purpose to be served by s 119 is procedural fairness and it is that which informs the construction and application of the section.
Sufficiency of the Notification
27 In this case the letters of 17 May 1999 and 23 June 1999 from the Immigration Section at the Australian Embassy to Mr Zhao and his agents respectively comprise the relevant notification. Oral conversations which may have occurred at the Embassy are not recorded and it is the documents which fall for consideration in this appeal. The possible ground of cancellation identified in the letter of 17 May 1999 is that set out in s 116(1)(a), that is to say that circumstances which permitted the grant of the visa no longer exist. The observation in the preceding paragraph that the ground exists “…because you departed Australia the second day after getting subclass 457 visa and have not been to Australia till now” probably falls into the category of “the information…because of which the grounds appear to exist” (s 119(1)(a)). Strictly speaking the ground itself is not there particularised. The relevant circumstance permitting the grant of the visa and which is said no longer to exist is not identified. The identification of the circumstance is a minimum requirement of particularisation of the ground.
28 The deficiency is made good however by the letter of 23 June, where the relevant circumstances in which the visa was granted are identified thus:
“. Mr Zhao proposed to conduct a business activity in Australia that would be conducted by him as principal [Migration Regulation 457.223(7)(a)(I)];
. Mr Zhao had “a genuine and realistic commitment to maintain or obtain an ownership interest in a business in Australia; and to maintain a direct and continuous involvement in the management of the business; and to make decisions that affect the overall direction and performance of the business from day to day” [Migration Regulation 457.223(7)(b)].”
The notice goes further and erroneously includes a reference to Migration Regulation 457.223(7)(f) asserting, as a third basis upon which the visa was granted, that:
“. Mr Zhao demonstrated that there was a need for him to be temporarily in Australia to conduct or establish the proposed business.”
Further information supporting those grounds is identified by reference to the interview conducted with Mr Zhao on 20 May 1999.
29 The inclusion of a reference to the criterion in clause 457.223(7)(f) was erroneous. At most it raised a false issue for Mr Zhao to address. However it did not render the notice ineffective for non-compliance with s 119. Mr Zhao was not misled by it as his migration agent discerned the error and tried to argue that the notice was “tainted by reference to the incorrect legislation”. Again, testing the effect of the error by reference to the statutory purpose, Mr Zhao was no less informed, as a result of the letter of 23 June 1999 of the grounds he had to address which arose under pars (a) and (b) of subclause 457.223(7).
30 In the end the combination of these documents in our opinion made plain to Mr Zhao the basis upon which cancellation of his visa was being considered and left him in a position where he was sufficiently fairly informed to be able to resort to available information and make such submissions as were open on the question of the cancellation.
The Ground of the Decision to Cancel
31 The notification procedure and the protection it affords would be illusory if it were open to the Minister to make a decision cancelling a visa on some ground other than that set out in the notification. However that did not happen in this case. The decision to cancel the visa as reflected in the decision record that Mr Kane issued on 8 October 1999 was based upon the grounds set out in the second dot point contained in the letter of 23 June which relied upon clause 457.223(7)(b) in the Second Schedule. The decision to cancel was therefore taken upon the basis of one of the grounds of which Mr Zhao had been notified.
Onus on the Visa Holder
32 A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. The decision-maker must ultimately be satisfied that the ground for cancellation is established. The language of s 119, which requires the visa holder to be invited to show that the grounds notified do not exist or that there is a reason why the visa should not be cancelled, does not of itself affect the ultimate requirement of satisfaction imposed upon the decision-maker by s 116. In this case the question whether a wrong test has been applied is to be determined by reference to the reasons for decision. These are to be read as administrative reasons and, in the formula honoured by repetition, if not by time, not “with an eye keenly attuned to error”.
33 After adverting to the interview conducted with Mr Zhao at the Embassy in May, and identifying submissions made and material relied upon, the reasoning adopted by Mr Kane began by reference to his departure from Australia one day after being granted the visa and the fact that he had been away for seven months when interviewed at the Australian Embassy in May 1999. He was evidently proceeding here upon the basis that this conduct supported the positive inference that there was at the time of grant of the visa a genuine and realistic commitment to carry on business in Australia that did not continue. His reasons spoke in terms of the applicant not being “convincing” in his claims at interview concerning his commitment. He referred to the absence of material from Mr Zhao and then said:
“I have reached the conclusion that in both his lack of business activity and responses to questions at interview the visa holder has been unable to demonstrate that he continues to have a genuine and realistic commitment to own and operate a business in Australia.”
This does not indicate the imposition of an onus upon the visa holder somehow contrary to the requirements of satisfaction under s 116. Essentially, the decision-maker is considering the absence of a circumstance grounding the decision to grant the visa namely a genuine and realistic commitment to direct and continuous involvement in the management of a business in Australia. Given that it is a matter peculiarly within the knowledge of Mr Zhao, his failure to demonstrate in a convincing way the existence of the commitment can properly support the state of satisfaction that the commitment no longer exists. Mr Kane did look at the explanation offered by Mr Zhao that he had been prevented from undertaking business activities in Australia because of delays associated with his dependents’ visa applications. He was entitled to discount that explanation having regard to the absence of any legal impediment to Mr Zhao returning to conduct business in this period.
34 Read fairly and as a whole, the reasons for decision do not indicate that the decision-maker failed to reach the state of satisfaction required under s 116 or arrived at that state of satisfaction by the imposition of some inappropriate onus upon the visa holder.
Conclusion
35 For the preceding reasons, the appeal will be dismissed with costs.
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I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court . |
Associate:
Dated: 1 September 2000
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Counsel for the Applicant: |
Mr LA Tsaknis |
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Solicitor for the Applicant: |
Australian Visa & Migration Services |
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Counsel for the Respondent: |
Mr P Macliver |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
29 August 2000 |
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Date of Judgment: |
1 September 2000 |
