FEDERAL COURT OF AUSTRALIA

Huang v Minister for Immigration & Multicultural Affairs [2001] FCA 1171

Migration Act 1958 (Cth)

Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 applied

Tien v Minister for Immigration and Multicultural Affairs [1998] FCA 1552 applied

Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 applied

Naing v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 336 applied

RUI BO HUANG, LI RONG ZHANG, RONG ZHI HUANG v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 43 OF 2001

MANSFIELD J

ADELAIDE

27 AUGUST 2001

THE COURT ORDERS THAT:

1.         The application be dismissed.

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

REASONS FOR JUDGMENT

1                     The applicant, Rui Bo Huang (“the applicant”) and his family seek review of a decision of a delegate of the Minister to cancel their visas.  The applicant was the holder of a Temporary Business Entry (Class UC) Subclass 457 - Business (Long Stay) Visa (“the visa”) granted on 21 July 1999.  The visa was cancelled on 15 April 2001 under s 116(1)(b) of the Migration Act 1958 (Cth) (“the Act”) for failing to comply with a condition imposed upon the visa at the time it was granted.  It is the cancellation decision of which the applicant seeks review on this application.

2                     Li Rong Zhang and Rong Zhi Huang are members of the family unit of the applicant.  Pursuant to s 140(1) of the Act, because they held their visas as members of the family unit of the applicant, their visas were also cancelled.  It is accepted that their position on this application stands or falls with that of the applicant.

3                     The visa was procured on the application of A-Class Ventilation And Engineering Pty Ltd (“the sponsor”).  It applied to be recognised as a standard business sponsor under Reg 1.20C(b) of the Migration Regulations, and it nominated the applicant to fill a key activity within its organisation as its “Marketing Manager - Foreign Trade” or its Marketing Director.

4                     Subclause 457.6 of Sch 2 of the Migration Regulations relevantly provides that Condition 8107 applies to the visa granted to the applicant, as the applicant did not meet the requirements of subcl 457.223(7).  Condition 8107 is in Sch 8 to the Migration Regulations.  It provides that the holder of the visa must not change employer or occupation in Australia without the permission in writing of the Secretary of the Department of Immigration and Multicultural Affairs.

5                     The applicant also met the criteria for the visa specified in subcl 457.223(4), including that the activity in which he proposed to be employed in Australia by the sponsor is a key activity of the sponsor and that the sponsor is a standard business sponsor.  Clearly, subcl 457(6) of the Migration Regulations imposing Condition 8107 to the visa was designed to ensure that a person granted the visa should not change employment from that in respect of which the visa was granted.

6                     Section 116(1)(b) of the Act relevantly provides that the respondent may cancel a visa if satisfied that its holder has not complied with a condition of the visa.  Section 117(1)(d) enables the visa held by a non-citizen such as the applicant to be cancelled whilst that person is in Australia.  Sections 119, 120 and 121 prescribe procedures by which a visa cancellation decision may be made.

7                     Section 119(1) provides :

“(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 to not exist;  or

(ii)       there is a reason why it should not be cancelled.”

8                     Section 120 provides :

“(1)     In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(a)       would be the reason, or 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.”

9                     Sections 121 and 122 prescribe the means by which an invitation under s 119(1)(b) or s 120(2)(c) may be given, and the time by which the invitation to respond is to be fixed.  It is not necessary to refer to their detailed terms.

10                  The cancellation of the applicant’s visa took place at Adelaide International Airport, after he had arrived from China.  He had passed immigration clearance, and so was within Australia where he was interviewed after being initially stopped at customs.  The interview took place through an interpreter between the Cantonese and English languages.  In the course of that interview, the applicant said that his business was wine exporting, and that he had worked for Mr John Zhaung (“Mr Zhaung”) of “Hillsview Springs Wines” for some six months.  He said he had invested in the Hillsview Springs winery, and was employed as its “wine research person in China”.  He said that initially he had worked for “the metal company” meaning the sponsor, but he had changed employment to the wine company.

11                  The interviewing officer then suspended that interview whilst he spoke to Mr Zhaung, the general manager of Hillsview Vineyards (SA) Pty Ltd, who confirmed that the applicant was an investor in that company but indicated that the applicant was not employed by it.

12                  The respondent, through the interviewing officer, then gave notice to the applicant of intention to cancel the visa under s 119(1) of the Act.  That notice identified breach of Condition 8107 prescribed by subcl 457.6 of Sch 2 to the Migration Regulations as the possible reason for the cancellation, and referred to the ground of cancellation available under s 116(1)(b) of the Act.  The applicant was given the opportunity to comment upon that intention to cancel the visa pursuant to s 119(1)(b) of the Act.  The applicant at interview is recorded as having responded in the following way :

“Agreed breached condition.  Wanted another chance.  Would not be able to check his investment.”

The delegate of the respondent, in the light of that response, decided that grounds for cancellation of the visa did exist under s 116(1)(b) and decided to cancel the visa.  The reason for that decision is recorded as :

“Different employment to originally sponsored for since 1 year from grant of 457”,

having noted the grounds for cancellation as including that the applicant at interview acknowledged that he was not working for the sponsor, and was “doing business with wine wholesaler”.

13                  There were two grounds of review argued on the hearing, namely :

(1)        The procedures required by s 120(2) of the Act were not observed in connection with the making of the decision, because the delegate of the respondent had not conveyed to the applicant any of the information received from Mr Zhaung:  ss 476(1)(a) and (e).  The respondent does not dispute that a failure to comply with s 120(2) would give rise to the ground of review available under s 476(1)(a).

(2)        The decision involved an error of law because the delegate of the respondent had incorrectly interpreted, and so had incorrectly applied, Condition 8107 to conclude that it had been breached because the applicant had not in fact changed his employment from the sponsor to another employer as he was not in fact employed by Hillsview Wines (SA) Pty Ltd:  s 476(1)(e).

14                  The first contention stands or falls on whether the information provided by Mr Zhaung to the interviewing officer was “relevant information”.  It was not put to the applicant and he was not given a chance to comment upon it, as was required under s 120(2) if it was relevant information.

15                  Sections 119 to 127 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: Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 per French, Hill and Carr JJ at [22] (“Zhao”).  In Tien v Minister for Immigration and Multicultural Affairs [1998] FCA 1552, Goldberg J pointed out the necessity for compliance with those procedures so prescribed in the following terms :

“I am conscious of the fact that it may be said that I am being pedantic about my approach to, and construction of, the provisions of Subdiv E of Div 3 of Pt 2 of the Act.  However, I consider that the procedure required to be not directory but rather mandatory and for good reason.  The procedure is designed to cover situations where immediate action is sought to be taken by Departmental officials at airports and where visa holders will often not have access to legal advice or, indeed, any other advice.  In many situations English will not be a visa holder’s first language.  In my opinion, in such circumstances, it is not only desirable but necessary that the relevant statutory provisions be the subject of strict compliance.”

Thus, as his Honour said, where a decision is made to cancel a visa for a reason not put as a reason to the visa holder in a notice under s 119(1)(a) as is required by s 120, an error of law is committed because the scheme of Subdiv D of Div 3 of Pt 2 of the Act restricts the reasons for the grounds of cancellation to the reasons advanced in the notices under s 119(1)(a) and under s 120(2) of the Act.

16                  It is clear, in this instance, that the information provided by Mr Zhaung to the decisionmaker satisfied the criteria in ss 120(1)(b), (c) and (d).  The issue is whether that information “would be the reason, or a part of the reason, for cancelling a visa” as expressed in s 120(1)(a).  The use of the word “would” as auxiliary to the verb “be” in context reflects that it is the conditional or provisional characterisation of the information which determines its quality as “relevant”.  When the respondent or his delegate complies with subs 119(1) and subs 120(1), he will not have formed a concluded view on the question of cancellation.  In Zhao, that point was recognised by reference to the words “appears to be” in s 119(1) at [24].  Similarly, s 120 is directed to a point of time before the cancellation decision is made and is part of the prescribed procedures to secure procedural fairness in the making of any decision under s 116 of the Act.  Thus, in my view, relevant information is information which has the conditional status of being information which may turn out to provide the reason or part of the reason for cancelling a visa.

17                  The information sought from Mr Zhaung was, according to the decisionmaker, to help establish the “bona fides” of the applicant.  It is not clear what the reference to “bona fides” was intended to mean.  If it meant that the decisionmaker had doubts about the real identity of the applicant, those doubts appear to have been allayed by the information provided by Mr Zhaung.  On that basis, the information provided was not relevant information because it does not appear to have been information providing a possible reason for cancelling the visa.  If it was to check the applicant’s information about his activities, the information was partly confirmatory (that the applicant was involved in the winery business) and was partly contradictory (that the applicant was not employed by the winery business, and that it did not export wine to China) of the applicant.  It did not relate to whether he was still employed by the sponsor.  To the extent that the information was contradictory of the applicant, I do not consider that it was regarded by the decisionmaker as information which “would be” the reason or part of the reason for cancelling the visa. 

18                  It is important to note that the measure of what is relevant information is that which the respondent or his delegate considers has that character, rather than whether some other person or the Court considers that it has that character.  It is the view of the respondent or his delegate about which information is the factor activating the obligation under s 120(2).  See, in the context of s 36(2) of the Act, the discussion in Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274 - 275.  The decisionmaker identified the evidence of and reasons why grounds for cancellation exist as being firstly the applicant’s statement that he was not working for the sponsor, secondly that he was “doing business with wine wholesaler”, and thirdly that he may have been selling mobile phone accessories (based upon materials in his possession when his possessions upon entry were inspected by Customs).  Only the second of those matters could relate to Mr Zhaung’s information.  But it does not identify any contentious fact based upon Mr Zhaung’s information.  It describes a state of affairs consistent with what the applicant told the decisionmaker, and what Mr Zhaung told the decisionmaker.  In those circumstances, I do not consider that the information provided by Mr Zhaung was information which the delegate of the respondent regarded, either because it was not information provided by the applicant or because it was contradictory of information provided by the applicant, as information which would be the reason or part of the reason for cancelling the visa.

19                  There is a further reason why, in my view, this ground of review fails.  The reason for the decision cancelling the visa was that the applicant had different employment from that provided by the sponsor, and so had not complied with the condition imposed by Condition 8107.  The applicant acknowledges that he had ceased working for the sponsor, and that he was engaged in promoting the sale of wine.  The information provided by Mr Zhaung, in relation to that ground for the decision, was merely confirmatory of that part of the applicant’s statement that he was pursuing the promotion of wine.  In Naing v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 336, Hill J, in relation to s 424A of the Act (which is a provision applicable to the Refugee Review Tribunal which relevantly corresponds with s 120 as it applies to the respondent and his delegates) said at [33] :

“Failure to comply with s 424A(1) however could never found a ground of review unless the material was in fact adverse and in fact considered relevant by the Tribunal.  This will be so when it is referred to in the Tribunal’s reasons for decision.  Material not referred to by the Tribunal can generally and certainly in the present case be inferred by it to have ultimately not been considered relevant to its decision. ...”

20                  Those comments are equally applicable to the present circumstances.  I respectfully agree with them.  In this matter, the failure to put to the applicant for his response the fact which the decisionmaker had been told by Mr Zhaung and regarded as significant - namely that he was promoting the sale of wine - could not found a ground of review when the applicant had already acknowledged that fact.

21                  The second ground of review can be shortly dealt with.  The applicant has ceased his employment with the sponsor.  The argument is, however, that he has not changed his “employer or occupation” because he has not undertaken fresh and different employment but was found only to be doing business with a wine wholesaler.  I reject that contention.  It is plain from the criteria upon which the visa was granted that it was upon the basis that he would be employed by the sponsor.  If he were not employed by the sponsor, the rationale for the grant of the visa would not exist or would cease to exist.  That is why Condition 8107 is imposed.  The applicant, having ceased to be employed by the sponsor, has changed his employer or occupation for the purposes of the Condition.  I do not consider that the delegate of the respondent erred in law in considering that, in the circumstances, the applicant had breached Condition 8107.  Another way of expressing that point is to recognise that it would be futile to return the matter to the delegate for reconsideration when the delegate’s decision was in reality based upon a state of fact which the applicant had acknowledged, rather than a reason, or information supporting a reason, for cancellation which the applicant did not have a fair opportunity to address.

22                  Finally, I also reject the submission that the delegate erred in concluding that the applicant was in fact employed by Hillsview Wines (SA) Pty Ltd.  It is true that the delegate’s assessment included that the applicant had “different employment” from that with the sponsor.  However, the reasons for decision of an administrative decisionmaker should not be scrutinised with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291.  The delegate elsewhere in the document recording the cancellation of the visa noted that the applicant was doing business with a wine wholesaler, and in the record of interview he told the applicant that he intended to cancel the visa because he had breached Condition 8107 because he had not worked for the sponsor since mid-2000.  The use of the expression “different employment” in context, in my view, is intended to convey only that the applicant was pursuing an employment or occupation other than that with the sponsor.  It does not demonstrate error on his part.

23                  Accordingly, in my judgment, no reviewable ground of error has been made out.  The application should be dismissed.

Associate:

Dated:              27 August 2001