FEDERAL COURT OF AUSTRALIA

Jia v Minister for Immigration and Multicultural Affairs [2000] FCA 1633

YUTANG JIA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V682 of 2000

FINN J

9 NOVEMBER 2000

MELBOURNE

THE COURT ORDERS THAT:

                        The application be dismissed with costs

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

1                     The applicant, Yutang Jia, is a national of the People's Republic of China.  At the relevant time he held a Long Stay (Visitor) (class TN) visa, subclass 686, a condition of which was that he not engage in work in Australia (see schedule 8 to the Migration Regulations 1994, condition 8101).

2                     On 7 June 2000, a delegate of the respondent Minister for Immigration and Multicultural Affairs cancelled Mr Jia's visa, his reasons being (1) compelling physical evidence that Mr Jia was working as a plasterer and (2) that Mr Jia had admitted to so working.  That decision was affirmed by the Migration Review Tribunal (“the MRT”) on 16 August 2000.  Mr Jia now applies to this Court for an order of review under section 476 of the Migration Act 1958 (Cth) (“the Act’).  The essence of his application is encapsulated in the outline of reasons for challenging the decision that Mr Jia subsequently filed in this proceeding.  Paraphrased, Mr Jia's grievances with the MRT's decision, are (1) "the determination of fact was wrong because I had never worked"; (2) the Immigration Department "forced me through threats and deceit" to admit that I had worked; (3) "immigration officials fabricated evidence"; and (4) the department deprived me of "my rights of having a tape-recording”.

3                     He objected to the MRT preferring the evidence of departmental (ie Department of Immigration and Multicultural Affairs (“DIMA”)) officials to his own and to his having been described as "evasive and unreliable".  Mr Jia's claims are in substance challenges to the fact and credibility findings made by the MRT.

4                     Before turning to the factual background I should note that the term "work" is defined in Regulation 103 of the Regulations to mean:

“an activity that in Australia normally attracts remuneration”.

Because of the bases of the MRT's decision and of the challenges made to it, it is unnecessary to further elaborate on the definition for present purposes.  I would note though that there is no discernible error in the MRT's statement of the applicable principles in relation to the definition.  The MRT applied the decision of this Court in Kim v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 258.  I would further note that section 116(1)(b) of the Act provides:

“Subject to subsections (2) and (3) the Minister may cancel a visa if he or she is satisfied that

…

(b)       its holder has not complied with the condition of the visa”.

5                     I now turn to the factual background and to the MRT's finding.  The factual material before the MRT was drawn from its own case file, the department's file and evidence from Mr Jia at the hearing.  The narrative of fact that I am going to provide is drawn from the MRT's own reasons.

6                     On the evening of 6 June 2000, departmental compliance officers visited a house in Dandenong where Mr Jia was living with another Chinese national.  That other person admitted that he was working as a plasterer.  Mr Jia initially denied that he was working as a plasterer but when it was pointed out to him that his appearance and clothing bore evidence of his so working he admitted he was.  The other person eventually told the officers that Mr Jia also worked as a plasterer.  The owner of the house, according to the DIMA file notes, gave information that both men worked and were picked up each morning.

7                     On 7 June 2000, Mr Jia was formally interviewed at the Immigration Detention Centre.  He stated he was acquiring new skills, which is allowed under his visa.  He said he had got work from the newspaper and he had worked as a plasterer for less than a month.  He claimed he had not been paid but he did not know the difference between study and work and that he considered what he had been doing was studying.  He claimed that he had told DIMA officers on 6 June 2000 that he had been working because he thought he would get help if he did so.

8                     On 13 June 2000, Mr Jia complained to an officer authorised under section 269 of the Act that he had been cheated by DIMA officers on 6 June and forced to state he was working.  In his application to the MRT, Mr Jia stated he was not working but merely learning how "to do plaster".  He claimed departmental officials cheated him and that he was told he would be given help if he admitted he was working.  He said that sometimes he went to the work site for learning and that nobody told him the difference between working and studying.  At the MRT hearing he denied that he told the departmental interview officer that he had answered an advertisement and said that was a "joke".

9                     He said that the officer had said they could help him if he admitted working and that was what he had done but he denied that was the truth.  He told the MRT that he had the motivation to work and tried for one day in April 2000 but he was too slim and too weak and the boss did not want him.  He said that was how his clothing got dirty and covered in plaster.  When asked why his clothing would still be dirty on 6 June, if he had only worked one day in April, he said that he never washed his clothing.  He agreed that he had told the departmental officer that he had "worked for probably less than one month" but claimed that it was not true and then said it had only been said because he believed it would help him.

10                  He agreed he told DIMA that he regarded the activity of plastering as study, not work, and explained that he did so as his visa allowed him to study but not to work.  He also agreed that he had told DIMA that he had worked since 1999 but again stated that that was not true and he claimed he had only said that because he thought it would help if he agreed.  He denied when he was detained he was covered in plaster.  He claimed that much of the evidence on the departmental file was fabricated.  The MRT asked him if it was accurate to say that he had agreed that he had worked for one day in April 2000.  He said no, that was not true, he had just played around for one day and had been showered with plaster and that did not count as working.

11                  The MRT's principal findings were in the following terms:

“The tribunal found the visa applicant to be an unreliable witness.  He was evasive and reluctant to answer many of the questions put to him.  He initially admitted working, then claimed that he was induced to do so by DIMA officers.  He initially denied making certain statements in his interview on 7 June 2000 and then told the tribunal at the hearing that he made the statements but they were not true.  He told the tribunal that he did work for one day in April 2000 but then stated that he did not regard that as work.  The tribunal does not accept his evidence that he only worked for one day in April 2000.

The tribunal accepts the evidence by DIMA officers, Mr Tang and the owner of his house, as documented in the DIMA file, that the visa applicant had been engaged in the activity of plasterer for some months.  In any event even if the tribunal accepted the visa applicant's evidence it was still established that he was engaged in the activity of plasterer for one day in April 2000”.

12                  It then concluded that the activity of plastering performed by Mr Jia was work within the meaning of the definition and that in consequence Mr Jia was in breach of the condition of his visa.  The MRT considered whether to exercise his discretion not to cancel the visa but decided there were not sufficient grounds so to do.  The delegate's decision was affirmed.

13                  Mr Jia's oral submissions did not in any significant respects travel beyond the allegations made before the MRT, save in two respects.  First, he objected to the level of reliance placed upon material prepared by the departmental officials.  He did not provide though any indication as to why those officials might have acted as he alleges.  Secondly, he also complained of the failure to call witnesses for cross‑examination.  The MRT, though, on the material before me, made a deliberate decision that was properly open to it to proceed in the manner it did on the material available to it, as Mr Jia was in detention and there was some urgency in resolving the case.  The respondent Minister's submission is that Mr Jia is attempting no more than to attack the findings made by the MRT and to re-agitate the merits of the matter. 

14                  In my view, this is a clear case.  The application must be dismissed.  It has properly been characterised by the respondent as an attempt to challenge a credibility finding and to engage in merits review.  Neither course is open in the circumstances of the case.  I should add, in fairness to the MRT, that the material before it squarely put Mr Jia's credibility in question.  He cannot complain in this proceeding in this Court that he was not believed.  It was for the MRT, not for me, to find the facts.  There is no appeal from an allegedly erroneous fact finding.  I can find no reviewable error has been committed by the MRT in arriving at the conclusion at which it arrived.

15                  The order of the court will be that the application be dismissed with costs.

Associate:

Dated:              28 November 2000