FEDERAL COURT OF AUSTRALIA

SZQBN v Minister for Immigration and Citizenship [2011] FCA 1182

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the costs of the Respondent of this appeal.

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

REASONS FOR JUDGMENT

1    The appellant appeals from the decision of Nicholls FM delivered on 2 June 2011 by which his Honour dismissed an application made on 4 February 2011 to the Federal Magistrates Court of Australia (‘the FMC’). Such application sought a writ of certiorari directed to the respondent (‘the Minister’) to quash the decision of a delegate of the Minister (‘the delegate’) to cancel the appellant’s Subclass 676 (Tourist) Visa (‘the visa’); a declaration that the visa was not validly cancelled and remained in effect; and a writ of prohibition directed to the Minister prohibiting the Minister, his delegates, servants and agents from acting upon or giving effect to the decision of the delegate.

BACKGROUND

2    The appellant is a national of the People’s Republic of China (‘China’) and the visa granted to him gave him permission for multiple entries for a period of three months for each entry until 19 August 2011. The appellant entered Australia for the first time on 28 October 2010 using the visa and he intended to remain in Australia until November 2010.

3    The appellant’s sister and mother reside in Australia. The appellant’s wife and his daughter remain in China.

4    The appellant in fact remained in Australia until 24 January 2011 when he left for Fiji, returning to Australia on 27 January 2011.

5    The appellant re-entered Australia using the visa at Sydney Kingsford Smith Airport (‘the airport’) on flight FJ911 from Fiji on 27 January 2011 at approximately 11.30 am. The appellant was carrying a passport issued by the People’s Republic of China. The appellant was then detained by the delegate. By 12.45 pm on 27 January 2011 an interview commenced between the delegate and the appellant at the airport (‘the interview’).

6    At the time of the appellant’s attempted re-entry to Australia, the Minister’s department had received information from its office in Beijing concerning the appellant (‘the information’). The information suggested that the appellant had kidnapped his daughter in China and was planning to enter Australia using the visa and then to apply for a protection visa using fraudulent documents. The information was not provided to the appellant during the interview.

7    During the interview and with the aid of an interpreter, the appellant told the delegate that he wished to communicate with his lawyer, Ms Diana Tong, a registered migration agent from the firm of Parish Patience Immigration Lawyers. After a time lapse of approximately two hours, the appellant was allowed to talk by telephone to Ms Tong. Following a conversation between the appellant and Ms Tong, and between Ms Tong and the delegate, the interview continued, during which numerous matters were raised with the appellant by the delegate. The interview was extensive, concluding at 11.48 pm on 27 January 2011.

8    During the interview the appellant claimed that he remained in Australia beyond his expected departure date because of his mother’s health. The appellant’s mother was then 67 years of age and was said to be suffering from a form of dementia. Dr Giang Li, the appellant’s mother’s general practitioner, had arranged for her to be seen by a consultant, Professor Daniel Chan, on 12 February 2011. The appellant claimed that he wished to be present while such consultation was held.

9    A Notice of Intention to Consider Cancellation of the visa was issued by the Migration Airport Inspector towards the conclusion of the interview. A document entitled Notification of Decision pursuant to s 116 of the Migration Act 1958 (Cth) (‘the Act’) to cancel the visa was provided to the appellant at 11.47 pm on that day. The grounds relied upon for the visa cancellation were stated to be under s 116(1)(g) of the Act and regulation 2.43(1)(j) of the Migration Regulations 1994 (Cth) (‘the Regulations’).

10    The appellant was thereafter detained and currently remains in detention.

LEGISLATIVE FRAMEWORK

11    Section 116(1) of the Act relevantly provides:

Power to cancel

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

…

(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

…

(g)     a prescribed ground for cancelling a visa applies to the holder.

12    Regulation 2.43(1) of the Regulations relevantly provides:

Grounds for cancellation of visa (Act, s 116)

(1)    For the purposes of paragraph 116 (1) (g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:

…

(j)    in the case of the holder of:

(i)    a Subclass 676 (Tourist) visa; or

(ii)    a Subclass 676 (Tourist (Short Stay)) visa; or

(iii)    a Subclass 679 (Sponsored Family Visitor) visa; or

(iv)    a Subclass 686 (Tourist (Long Stay)) visa;

that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit, or remain in, Australia as a visitor temporarily for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the visa holder or for another purpose, other than a purpose related to business or medical treatment;

THE FMC PROCEEDINGS

13    On 4 February 2011 the appellant applied to the FMC pursuant to s 476 of the Act in respect of the Minister’s decision to cancel his visa. Subsequently on 17 March 2011 an amended application was filed seeking the relief referred to in [1] above. The proceedings came before Nicholls FM on 13 April 2011 and final submissions were made on 25 May 2011. Judgment was delivered by Nicholls FM on 2 June 2011 (see SZQBN v Minister for Immigration and Citizenship [2011] FMCA 408). It is that decision which is now the subject of this appeal.

14    The Court notes that at the outset of the hearing before Nichols FM, the respondent conceded that the Minister failed to put the information referred to in [6] above to the appellant during the course of the interview. The Minister was required to do so by s 120 of the Act. Section 120 of the Act provides:

120 Certain information must be given to visa holder

(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.

15    The Federal Magistrate found the appellant’s answers to several questions during the interview to be inconsistent with the appellant’s answers provided during the hearing. Furthermore, his Honour found that an affidavit of Ms Tong corroborated certain facts concerning the true intention of the appellant.

16    Nicholls FM found that the appellant had been untruthful in several respects in his answers given to the delegate during the interview at the airport. During the interview a message was found on the appellant’s mobile phone asking him to call the Beijing police, such message apparently being from a lawyer, Mr Zhu. The appellant informed the delegate that he did not know who had sent the message and that his mobile phone was ‘registered’ to his younger sister and he only used it occasionally. However before the FMC, the appellant acknowledged that he did know ‘lawyer Zhu’ and that the message was relating to investigations in China involving a ‘missing’ $3 million, for which a warrant had been issued in China for the appellant’s arrest.

17    The appellant had told the Minister’s delegate during the interview that there had been a dispute between him and his wife concerning custody of their daughter and that his wife’s family had used influence over the police to obtain a warrant against him. The appellant had claimed that he had searched for his daughter for some time and when he found her he hid her with relatives.

18    The Federal Magistrate found that from such response, the appellant sought to convey the impression that the warrant was issued at his wife’s instigation concerning custody of their daughter. However before the Court the appellant gave evidence which established that the police were in fact seeking to arrest the appellant because of allegations concerning missing money referred to above and not in respect of any custody issue.

19    His Honour also noted that in his application for a visa, the appellant provided his address as the same as that for his wife and child. Such information was found by his Honour to be inconsistent with the appellant’s evidence.

20    His Honour also noted that there was conflict concerning the marital status of the appellant in the visa. The appellant had described himself as ‘married’. In the interview however he stated that his wife was seeking a divorce. In an affidavit provided to the Court on 8 April 2011 he indicated that his wife had sought a divorce which had been refused.

21    His Honour observed that the appellant had informed the delegate during the interview that he had a better life in China than in Australia. The appellant told the delegate that he had a house in China and had a governmental position which gave him the use of a government vehicle having special privileges, such as immunity from compliance with traffic laws. The Federal Magistrate found that such statements were made to persuade the delegate that the appellant was a genuine visitor and to portray the scenario that there was no reason for the appellant not to return to China. However, later in the interview, after the appellant was informed that his visa was being cancelled and that ‘certain agencies’ would have to be informed, the appellant sought a protection visa because he would face arrest and possibly the death penalty for certain activities in China. His Honour found such alternative claims to be inconsistent.

THE APPEAL

22    Three grounds of appeal were raised by the appellant before this Court, but the third ground was abandoned during the hearing.

23    The first ground alleges that his Honour erred in holding that the appellant’s alleged bad faith in falsifying his intention to be a genuine visitor to Australia was sufficient to deny him relief in circumstances where the decision to cancel his visa was affected by breaches of procedural fairness.

24    The second ground of appeal raised by the appellant asserts that it was not open to the Federal Magistrate to find, to the requisite standard of proof, that the appellant had displayed bad faith in his dealings with the delegate.

25    Both grounds of appeal will be considered separately hereunder in conjunction with his Honour’s findings and the parties’ submissions during the appeal.

GROUND 1

26    The appellant submits that the Court could not be satisfied that the appellant could not have provided the delegate with explanations sufficient to allay doubts concerning his intentions to visit Australia had the information been put to the appellant, and had the appellant ‘not been cut off by the delegate’ during the interview.

27    His Honour considered the fact that the interview was conducted over a prolonged period. His Honour also noted that the interview was terminated midway and resumed under the conduct of a different officer because of a change of shift. In this respect his Honour observed that the interview was ‘illustrative of the poor process, and subsequently poor interview technique and environment provided by the departmental officers’. His Honour also observed that there were some problems with the interpretation services provided to the appellant.

28    However, his Honour said:

…on a plain reading of the transcript of the interview, the [appellant] himself contributed to the difficulty and the length of the interview by the plainly non-responsive nature of his answers…

29    His Honour also said:

…it cannot be said that the [appellant] assisted his cause in this regard whilst giving evidence before the Court.

30    The Federal Magistrate found that the transcript of the interview established that the appellant had ample opportunity to explain his true position to the delegate, and that there was no basis for the appellant’s submission that he had been deprived of the opportunity to provide a full explanation. This is a finding of fact which was open on the evidence before the Federal Magistrate and as such cannot be reviewed by this Court: see Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Durairajasingham (2000) 58 ALD 609 per McHugh J at [67].

31    The appellant submits that before the Minister could have been satisfied that the appellant did not have, or ceased to have the intention to remain in Australia temporarily for the purpose of visiting a relative, the Minister was required to comply with s 120 of the Act and further, was required to invite the appellant to comment upon the Notice of Intention document. The appellant further submits that such opportunity to comment must be a full opportunity, as considered by Gray J in Antipova v Minister of Immigration and Multicultural and Indigenous Affairs and Another (2006) 151 FCR 480 at [77]-[80].

32    The critical findings of his Honour are contained at [120] and [121] of his Honour’s findings which state:

In my view Ms Tong, the applicant’s migration agent, provides the clear and plausible explanation for what has occurred. Any plain reading of the evidence offered by her, and indeed when viewed also in the context of that part of her evidence relied on by Mr Johnson, supports the finding that the applicant did demonstrate bad faith in the way that he dealt with the Minister’s department. It puts those parts of the transcript of the airport interview, and the matters the Minister now relies upon, in a different light.

Elsewhere in the evidence it is clear (see also further below) that at the time of the interview, and certainly at its commencement, there were certain events (at its core the missing three million dollars, the arrest warrant and related events, the matter of the applicant’s daughter and the applicant’s relationship with his former wife and the police) that would cause him not to want to return to China.

33    His Honour found at [127] that the evidence of Ms Tong corroborated the fact that the appellant provided misleading answers during the interview saying:

Ms Tong herself, therefore, provides the basis to say that the applicant did not tell the truth to, or concealed aspects of the truth from, the delegate at the interview.

34    In NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 199 the Full Court dismissed an appeal from a decision of a single judge who rejected prerogative relief where an applicant had made a false visa application. Further, the Full Court in Minister for Immigration and Citizenship v Lu (2010) 189 FCR 525 when considering a fraudulent claim by an applicant, said at [45]:

…it would be rarely, if ever, that the personal circumstances of an applicant, however meritorious when considered in isolation, could outweigh knowing involvement by that applicant in an endeavour corruptly to pervert the legal or administrative processes for the regulations of his or her status.

35    The Court is satisfied that there was ample evidence to enable his Honour to reach the conclusion which he did, namely that the appellant had attempted to mislead the Minister by giving false answers to questions asked of him during the interview, and that thereby he engaged in bad faith. The Court considers that upon the evidence, the Federal Magistrate was justified in concluding that the appellant’s claims were implausible.

36    The breach of s 120 of the Act does not lead to the consequence that the Minister cannot find, in the exercise of a discretion, the existence of bad faith on the part of the appellant: see Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82 at 108 [56]; NAWZ at [10]-[14]. The obligation remained upon the appellant to satisfy the Minister that the visa should not be cancelled. It was the inconsistent information given to the delegate which ultimately led the Minister to conclude that the appellant had engaged in conduct in bad faith.

GROUND 2

37    The particulars to this ground of appeal refer to instances relied upon by the appellant in support of his claim that it was not open to his Honour to conclude that bad faith existed on his part in his dealings with the delegate. These matters are considered hereunder.

(a) Fear of persecution

38    The appellant submits that his fear of persecution at the hands of Chinese authorities was triggered by the delegate’s reference to ‘other agencies’ during his interview at the airport.

39    It was only after the appellant was told by the delegate that his visa would be cancelled that the appellant claim that he faced arrest under a warrant in connection with missing money and that he was fearful for his safety if he returned to China. Such fear was the basis of his claim of persecution. Before the FMC, the appellant adhered to such claim.

40    In cross-examination the appellant acknowledged that in November 2010 a policeman in China informed the appellant that a secret arrest warrant had been issued for the appellant. Accordingly, the Federal Magistrate was entitled to conclude that the appellant’s fear of persecution did not arise from any statements made by the delegate during the interview. Rather, the appellant had been aware since November 2010 that the arrest warrant had been issued.

(b) ‘Other relevant agencies’

41    The appellant relies upon the delegate’s comment during the interview that ‘other relevant agencies’ would be informed concerning the cancellation of the appellant’s visa. The appellant says that he feared that such reference could have included, as he interpreted, agencies relating to the Chinese government.

42    His Honour found that the appellant’s evidence suggested that he believed that ‘other agencies’ may have included Chinese agencies. However, the appellant then knew that an arrest warrant had been issued for him in China. The appellant, having heard the reference to ‘other agencies’ apparently assumed the ‘agencies’ to be Chinese, and that his whereabouts would then be revealed with the consequence that he would be arrested upon his return to China. It may be inferred that, having such realisation, the appellant then decided that he had no alternative but to seek protection. The timing of his statements after the delegate’s reference to ‘other agencies’ makes such conclusion irresistible. However, it is not a matter which was determinative of the Minister’s decision to cancel the visa.

(c) Ms Tong’s evidence

43    The appellant submits that the reference to a conversation between Ms Tong and an officer of the first respondent on 2 February 2011 contained in Ms Tong’s affidavit was not evidence of bad faith. In such conversation, Ms Tong said that the appellant would not have needed to apply for a protection visa had his visitor visa not been cancelled. His Honour concluded that Ms Tong’s evidence supported the Minister’s assertion that the appellant had acted in bad faith.

44    His Honour found at [144] of his decision:

The further matters relied on by the Minister, concerning the applicant’s statement that he had a better life in China, the absence at the interview of any reference to the missing money, the arrest warrant and like matters as being a source of fear of persecutory harm, when seen in light of Ms Tong’s evidence, support the Minister’s assertion of bad faith on the part of the applicant for reasons already refereed to above.

45    The Court is unable to find any error in his Honour conclusion.

(d) Necessity to cross-examine Ms Tong

46    The appellant asserts that it was necessary for Ms Tong to be cross-examined in relation to her affidavit. The answer to such claim is the fact that his Honour accepted Ms Tong’s evidence. Furthermore, Ms Tong’s affidavit was tendered as part of the appellant’s evidence. Accordingly there was no need for cross-examination to occur before his Honour could reach his decision.

47    No question arises of the application of the principles referred to in Browne v Dunn (1893) 6 R 67 (HL) nor in Allied Pastoral Holdings Pty Limited v Federal Commissioner of Taxation [1983] 1 NSWLR 1, since the Federal Magistrate did no more than to accept Ms Tong’s sworn evidence.

(e) Conditions of the interview

48    The appellant further alleges that it was not open to the Federal Magistrate to find that the appellant acted in bad faith as the circumstances in which the interview was conducted were unfair. Those circumstances were identified as follows: the interview lasting for more than 11 hours; the appellant not being given access to a representative until almost two hours of the 11 hours had elapsed and only intermittently thereafter; the appellant had low levels of sugar in his blood but only received food on one occasion; and the fact that the interview was conducted with interpreters on telephones and there were numerous instances of inaudibility and miscomprehension.

49    His Honour found at [142] of his decision:

What remains is that this sequence of statements by the applicant does contain inconsistencies, as submitted by Mr Johnson. As it stands, the applicant was unclear as to whether the police were looking for him, and importantly the reason for it. No elements of interpretation difficulties or the environment in which the interview was conducted can cancel the applicant’s attempts to obscure and conceal.

50    His Honour considered the interview process and took the above matters into account, but nevertheless was not satisfied that any possible difficulties outweighed the appellant’s conduct and concluded that the appellant had acted in bad faith. The findings of the learned Federal Magistrate are findings of fact which cannot be reviewed in this appeal.

CONCLUSION

51    The Court is unable to find any basis upon which the determination of the Federal Magistrate could be said to be erroneous, nor is there any jurisdictional error in the findings of the Federal Magistrate.

52    It follows that the appeal must be dismissed.

Associate:

Dated:    20 October 2011