FEDERAL COURT OF AUSTRALIA

Xu v Minister for Immigration and Border Protection [2018] FCA 1181

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

Introduction

1    Before the Court is an appeal from a decision of the Federal Circuit Court dated 6 February 2018 in which the primary Judge dismissed an application for judicial review of the Administrative Appeals Tribunal (the Tribunal), which in turn affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to cancel the Temporary Business (Skilled) (Subclass 457) visa held by the first appellant.

Background

2    The first appellant is a citizen of China who was granted a 457 visa on 2 August 2012. The visa was valid for four years. The second and third appellants, the first appellant’s partner and child respectively, were granted visas as members of the first appellant’s family unit.

3    The fist appellant was the subject of an approved nomination for employment in the occupation of “Management Consultant” with Auyou Corporation Pty Ltd (Auyou Corporation).

4    The first appellant was sent a Notice of Intention to Consider Cancellation of the Visa on 4 July 2016, because a delegate of the Minister believed there may be grounds to cancel the first appellant’s visa because the first appellant had failed to comply with condition 8107(3) of the Migration Regulations 1994 (Cth). The Minister had received notice from Auyou Corporation that the fist appellant’s employment had ceased, effective from 3 March 2016. However, condition 8107(3) required that the appellant did not cease employment for more than 90 consecutive days.

5    The first appellant’s representatives responded to the Notice of Intention to Consider Cancellation on 26 July 2016. The Minister’s delegate exercised the discretion to cancel the first appellant’s visa on 1 August 2016, pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (the Act) because the delegate was satisfied that there had been a breach of condition 8107(3).

6    The first appellant sought to review the delegate’s decision on 5 August 2016 and the Tribunal affirmed the decision on 11 November 2016. The Tribunal found that the first appellant had stopped working for the sponsor, Auyou Corporation, shortly after arriving in Australia. The Tribunal found that the first appellant had breached the following:

    condition 8107(3)(a)(i), because the first appellant had been working as a floor and wall tiler, rather than in his nominated occupation of “Management Consultant”;

    condition 8107(3)(a)(ii), because the first appellant had worked for employers other than his sponsor, Auyou Corporation;

    condition 8107(3)(aa), because the first appellant had not commenced working in the nomination occupation of Management Consultant within 90 days of entering Australia; and

    condition 8107(3)(b), because the Tribunal found that Auyou Corporation had termination the first appellant’s employment in August 2012 such that the first appellant was not employed by the sponsor for more than 90 days.

7    Accordingly, after having regard the PAM3: General visa cancellation powers, the Tribunal considered that it should affirm the delegate’s decision to exercise the discretion to cancel the first appellant’s visa because:

    The purpose for which the first appellant had come to Australia was to work for Auyou Corporation as a Management Consultant. That purpose ended more than four years before the Tribunal’s decision, which the Tribunal considered weighed heavily in favour of cancellation.

    There were multiple breaches of the visa conditions by the first appellant.

    The first appellant did not take any steps to regularise his visa status in Australia.

    The first appellant and his family would not suffer significant hardship in reintegrating to life in China, even if there would adjustments for them. In particular at [32] the Tribunal observed:

After 4 years in Australia, the Tribunal accepts that there may be some adjustments for the family to reintegrate to life in China. However, the Tribunal is nevertheless of the view that any such hardship would not be significant given the qualifications and experience that both Mr Xu and his wife had gained in Australia. Mr Xu could also resume his occupation of Management Consultant with the benefit of the cross-cultural experiences of having worked in Australia for 4 years. The Tribunal does not consider that any detriment as outlined by Mr Xu amounts to a level of hardship such that it would weigh in favour of not cancelling his visa.

    The Tribunal noted that the grounds for cancellation arose in circumstances where the first appellant’s sponsor had made threats regarding cancellation of the first appellant’s visa, the director of the first appellant’s sponsor had falsely held himself out to be a lawyer, and the first and second appellants were afraid of and dominated by the sponsor. However, the Tribunal nonetheless concluded that the first and second appellants were sufficiently educated that they should have recognised that they needed professional advice to assist with their situation, which they never explored or pursued.

    The Tribunal found that the first appellant had been disrespectful of Australian immigration law and that the first appellant’s conduct suggested that he had been complicit in his sponsor’s breaches of immigration law in order to facilitate his residence in Australia for four years.

The Federal Circuit Court proceedings

8    The appellants sought review of the Tribunal’s decision in an amended application which detailed the following grounds of review:

Ground 1

1.    The Tribunal denied the Applicant procedural fairness in respect of determinative issue of the exercise of its discretion and/or constructively failed to exercise its jurisdiction.

…

Ground 2

2.    The Tribunal committed jurisdictional error when it denied the Applicants procedural fairness when it found that the Applicant would have sufficient level of education and training that there would be no hardship (AAT at [32]) returning to China being determinative issue in respect of which there was no meaningful engagement by the Tribunal in the conduct of the review or constructively failed to exercise its jurisdiction.

…

Ground 3

3.    The Tribunal committed jurisdictional error when it asked failed to ask the correct question and ignored relevant considerations and/or took into account irrelevant considerations/constructively failed to exercise jurisdiction in its consideration of the exercise of the discretion by the delegate.

(Amendment formatting removed.)

9    Each of the grounds contained a number of “particulars”. Ground 3 was not pressed by the appellants.

10    The primary Judge did not consider that there had been any denial of procedural fairness by the Tribunal. In relation to ground 1, his Honour referred to s 425 of the Act, which required that the Tribunal give the appellants a real and meaningful invitation to a hearing and adequate opportunity to give evidence and respondent to any concerns raised by the Tribunal. The primary Judge did not consider that the Tribunal had failed to fulfil its statutory obligations in this respect. The primary Judge further found that it could not be said that the first appellant was not on notice as to the issues raised by the Tribunal in relation to the first appellant’s breaches of condition 8107(3).

11    In relation to ground 2, the primary Judge held that there was no jurisdictional error on the part of the Tribunal in makings its findings in relation to whether or not the appellants would suffer hardship if they were required to reintegrate to life in China. The primary Judge held that the Tribunal consideration of these issues was a permissible exercise of its evaluative function.

12    However, the primary Judge nonetheless considered that there were issues arising from the facts asserted by the first appellant before the Tribunal which merited a final hearing. These issues related to Mr Kevin Xu, who was the owner of the first appellant’s sponsor and had also assisted the appellants with their migration applications, and the possibility that the first appellant’s visa application was fraudulent or otherwise invalid. Mr Kevin Xu falsely represented to the first appellant that he was a lawyer and a migration agent, but the first appellant had relied on Mr Kevin Xu in relation to his visa application. The primary Judge noted that the role that Mr Kevin Xu played could only be known to the Department.

13    The primary Judge therefore made a show cause order on 25 July 2017 in the following terms:

Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is ordered to show cause why relief should not be granted in relation to the following issues:

(a)    whether the first applicant’s visa had been lawfully granted;

(b)    whether the Tribunal should have sought evidence from the applicant’s sponsor in relation to the sponsorship arrangement;

(c)    whether the Tribunal gave real and meaningful consideration to the circumstances of the applicant and the reasons why he was brought to Australia.

14    The matter was listed for final hearing on 7 December 2017 in relation to the issues identified in his Honour’s show cause order. The primary Judge made the following findings:

    In relation to (a): the first appellant decided not to make a case of fraud on him and on the Department. Allegations of fraud must be clearly pleaded and established by evidence, pursuant to the authority of SZFDE v Minister for Immigration [2007] HCA 35; (2007) 232 CLR 189. Further, the first appellant stated that he “had no reason to believe otherwise [ie: that his visa was not lawfully granted]” and that he was “unable to make submissions” on the issues. In such circumstances, it was not open to the Federal Circuit Court to find that the first appellant’s visa was never validly granted, and no jurisdictional error by the Tribunal was demonstrated.

    In relation to (b): the Tribunal was under no legal obligation to call evidence from the first appellant’s sponsor, through Mr Kevin Xu. The first appellant was represented by a migration agent through the Tribunal proceedings and there was never any request for evidence from Mr Kevin Xu, and there was no legal basis on which the Tribunal was obliged to call evidence from Mr Kevin Xu. Further, the primary Judge considered that it was not readily apparent how the evidence of Mr Kevin Xu would have assisted the Tribunal, especially when the first appellant was not alleging that the visa application prepared by Mr Kevin Xu was fraudulent and therefore invalid.

    In relation to (c): the Tribunal did give meaningful consideration to why the first appellant was brought to Australia, as evidenced in its reasons for decision. The primary Judge also considered that the Tribunal had paid close regard to the first appellant’s circumstances and had discussed these in detail. The primary Judge further found that the Tribunal had considered that the circumstances resulting in the first appellant’s continued breaches of visa conditions were not a result of matters beyond his control. The appellant had eventually sought advice from a lawyer about his circumstances, but ignored that advice.

The appeal to this Court

15    The appellants filed a notice of appeal on 27 February 2018, at which time they were not represented, and set out the following grounds of appeal:

Ground 1

1.    His Honour should have found that the Tribunal fell into error into failing to investigate the role of the migration agent: (Xu v MIBP & Anor [2018] FCCA 58 at [31]; [35]). The ability to investigate the fraud was in the hand of the First Respondent which had dealt with Kevin Xu and privy to all the documents provided to it including sponsorship documents from the employer and the document provided by Kevin Xu in the capacity as migration agent. His Honour should have thereby found that there was constructive failure by the Second Respondent to carry out the review for the purposes of determining that the visa had been validly issued. Alternatively, in all circumstances His Honour should have found that there was fraud on the Appellants by Kevin Xu (Xu v MIBP & Anor [2018] FCCA 58 at [32]).

Particulars

1.1    His Honour erred in finding that owing to issue of the validity of the issue being jurisdictional fact the Tribunal did not err.

1.2    The Tribunal did not engage with the employer/ the migration agent’s role in visa issue.

1.3    His Honour misapprehended the Appellant’s ability to address the validity of the issue the visa and prove fraud when the active parties were the First Respondent’s delegates in China and Mr Kevin Xu (Xu v MIBP & Anor [2018] FCCA 58 at [32]- [34]).

1.4    Kevin Xu was the manager of the sponsor.

1.5    The Tribunal committed jurisdictional error.

Ground 2

2.    His Honour should have found that the Tribunal committed jurisdictional error when it failed to put a determinative issue to the Appellants in respect of which there was no meaningful engagement by the Tribunal in the conduct of the review and / or constructively failed to exercise its jurisdiction and /or denied the Appellant procedural fairness: (Xu v MIBP & Anor [2018] FCCA 58 at [45 - 46]).

Particulars

2.1    The Tribunal concluded that the Appellants may have been “complicit” in the issue of visa.

2.2    His Honour should have found that the Tribunal denied the Appellants procedural fairness on the question of the Appellants’ agent’s role in China and failed to give meaningful opportunity to present the Appellants’ case.

2.3    The Appellants were not in position to determine the role of the agent and it fell on the First Respondent to determine this.

2.4    The Court below fell into error.

2.5    The Tribunal thereby committed jurisdictional error.

Ground 3

3.    His Honour should have found that the Tribunal fell into error in consideration of the Appellants’ visa issue in the circumstances that into employee / migration agent’s role. His Honour erred in concluding that the failure to assess role of the migration agent did not lead to jurisdictional error (Xu v MIBP & Anor [2018] FCCA 58 at [26] - [27]).

Particulars

3.1    The Tribunal did not engage with the employer’s role/ Kevin Xu the migration agent and who was otherwise threatening the Appellants.

3.2    The Appellants did not have access to requisite information.

3.3    The Tribunal committed jurisdictional error.

Ground 4

4.    His Honour should have found that the Tribunal denied the Appellants procedural fairness in respect of determinative issue of the exercise of its discretion and I or constructively failed to exercise its jurisdiction.

Particulars

4.1    Financial hardship was a relevant consideration. In considering financial aspect of the discretion the Tribunal has presumed that with the First Appellant’s MBA he would find meaningful employment in China. The Tribunal in exercise of the discretion presumed that the Appellants would not have financial difficulties and / or failed to take this consideration into account and /or conflated with the First Appellant having postgraduate qualifications and both Appellants having Australian work experience. The Tribunal failed to provide adequate opportunity to the Appellants to explain the financial circumstances and / or other financial hardship when all the monies have been paid to the Sponsor.

4.2    The Tribunal failed to provide adequate opportunity to the Appellants to engage with the issues / explain the issue under review in respect of the discretion.

4.3    The Appellants paid back monies to the sponsor. There was no proper consideration in the exercise of its discretion when considering financial aspects of the hardship.

4.4    The Tribunal committed jurisdictional error.

Ground 5

5.    His Honour should have found that the Tribunal committed jurisdictional error when it denied the Appellants procedural fairness in finding that the First Appellant would have sufficient level of education and training that there would be no hardship (AAT at [32]) returning to China being determinative issue in respect of which there was no meaningful engagement by the Tribunal in the conduct of the review and I or constructively failed to exercise its jurisdiction.

Particulars

5.1    He Tribunal denied the Appellants procedural fairness on the question of the Appellants’ qualification and the Appellants’ ability to sustain in China and failed to give meaningful opportunity to present the Appellants’ case.

5.2    The Tribunal denied the Appellant procedural fairness.

5.3    The Tribunal thereby committed jurisdictional error.

Consideration

Grounds 1 to 3

16    At the hearing, Mr Kumar for the appellants required leave to rely on ground of appeal 1 because the issues raised therein had not been pressed before the primary Judge. Relevantly, in ground 1 the appellants sought to raise issues of fraud on the Tribunal on the part of their claimed migration agent Mr Kevin Xu.

17    I refused leave on the basis that this ground of appeal had no merit, in circumstances where:

    The issue of alleged fraud by Mr Kevin Xu had been specifically abandoned by the appellants at the hearing before the primary Judge, notwithstanding that his Honour had identified this as an issue, and had invited submissions in respect of this issue by the appellants. In a case where the appellants made a deliberate forensic choice not to pursue this point in the Federal Circuit Court, notwithstanding that the primary Judge had listed this aspect of the case for a show cause hearing, there would be no basis on which the primary Judge could be said to have erred in failing to find “that the Tribunal fell into error into failing to investigate the role of the migration agent”.

    As submitted by Mr Swan for the Minister, there was no evidence before the primary Judge concerning the alleged fraud of Mr Kevin Xu in the circumstances of this case. Any allegation of fraud must be distinctly pleaded and proved: SZFDE at [15], Briginshaw v Briginshaw (1938) 60 CLR 336. In light of such authorities this ground was doomed to fail.

18    Following my refusal to grant leave in respect of ground 1, the appellants did not press grounds of appeal 2 and 3.

Grounds 4 and 5

19    Grounds 4 and 5 are clearly related. At the hearing, the submissions of Counsel addressed these grounds together.

20    During the course of submissions, Mr Kumar for the appellants sought leave to amend particular 4.1 to ground of appeal 4, insofar as it referred to the Tribunal having referred to the first appellant’s “MBA”. Mr Kumar sought to amend the reference to “MBA” to read “Management Consultant”. I refused the grant of such leave in circumstances where:

    Mr Kumar indicated that he had been consulted in relation to the drafting of the grounds of appeal.

    The reasons of the Tribunal referred to “experience and qualifications” but there was no specific reference to an “MBA”.

    Mr Kumar’s request for leave appeared to be the result of his inability to find any evidence of or reference to an MBA being held by first appellant in the appeal book, and the amendment appeared only to be a matter of convenience for Mr Kumar during the hearing.

    Mr Swan for the first respondent identified a reference to the first appellant having obtained a “Bachelor of Engineering Management” in the first appellant’s visa application at p 10 of the appeal book.

21    In written submissions, the appellants contend that the primary Judge should have found that the appellants were denied procedural fairness in respect of a determinative issue. The appellants complained that the Tribunal presumed that they would not face hardship if they returned to China. In response to this aspect of these grounds of appeal, the Minister submitted as that the appellants were squarely put on notice that any hardship they may suffer as a result of cancellation was in issue for consideration before the Tribunal. At no point did the appellants seek to put on evidence that they would suffer any particular hardship, despite being given adequate opportunity to do so. As the Minister submitted, it is not incumbent on the Tribunal to ensure that the parties before it put on certain material or raise particular issues, as stated by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343. Accordingly, this aspect of these grounds of appeal is not made out.

22    Further, at the oral hearing, the appellants’ primary contention was that the Tribunal’s finding at [32] of the reasons, that any hardship experienced by the appellants in reintegrating to life in China “would not be significant given the qualifications and experience that both [the first appellant] and his wife had gained in Australia”, was illogical.

23    The Minister submitted that, in accordance with authorities such as Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [29] per Crennan and Bell JJ, there is a high threshold to satisfy in order to establish that a finding of the Tribunal lacked a logical or rational basis. The Minister submitted that the appellants’ own case before the Tribunal had provided such a basis for the Tribunal’s findings, specifically:

    The first appellant gave evidence that he had worked as a tiler and had become a “master tiler”, such that “many companies would love to offer him a job”. The reference by the Tribunal to the first and second appellants’ “qualifications and experience”, especially in light of the discussion at [31], concerned this experience obtained by the first appellant in Australia.

    The first appellant gave evidence that he had worked as a Management Consultant in China, and the Tribunal considered that the first appellant could also resume this work with the benefit of his cross-cultural experience obtained in Australia.

24    In the absence of any contrary material being provided to the Tribunal by the appellants, it was open to the Tribunal to make a finding of fact to that effect as it did at [32] of its reasons for decision.

Conclusion

25    In circumstances where I have refused leave to rely on ground 1, grounds 2 and 3 are accordingly not pressed, and grounds 4 and 5 are without merit, the appropriate order is to dismiss the appeal with costs.

Associate:

Dated:    9 August 2018