Su v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 681

FEDERAL COURT OF AUSTRALIA

Su v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 681 CAI LIAN SU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 251 OF 2005 EMMETT J 28 APRIL 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD251 OF 2005

BETWEEN: CAI LIAN SU

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 28 APRIL 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the appeal be dismissed for want of jurisdiction; 2. the appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD251 OF 2005

BETWEEN: CAI LIAN SU

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 28 APRIL 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 I have before me an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of a deputy president of the Administrative Appeals Tribunal, affirming a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), to refuse a spouse visa to Mr Xian Yong Zhang. The appellant is Mr Zhang's wife, Ms Cai Lian Su. 2 The appellant was born in Guangdong, China, on 29 August 1980 and was granted Australian citizenship on 21 September 1998. Mr Zhang was born in Fuzhou, China, on 24 November 1978. On 31 August 1998, he arrived in Australia with a fraudulently obtained Thai passport and on a fraudulently obtained sub-class 456 business (short stay) visa. That visa was valid until 30 September 1998. 3 On 30 September 1998, Mr Zhang, using the false name of Kitti Chockijcharoenchai, applied for a protection visa and was given an associated bridging visa. The application stated that he was a citizen of Thailand. That visa application was refused on the same day. The decision was affirmed by the Refugee Review Tribunal on 16 March 1999. The bridging visa expired on 20 April 1999. However, on 14 May 1999, Mr Zhang lodged a second protection visa application, this time using the name of Qian Yong Li, stating that he was a citizen of China who had arrived in Australia by boat. That application was refused on 9 June 1999 and that decision was affirmed by the Refugee Review Tribunal on 10 February 2000. 4 On 19 April 2000, Mr Zhang applied for a bridging visa E with permission to work. That was refused on 26 April 2000. On 19 May 2000, Mr Zhang, still using the name Qian Yong Li, applied for ministerial intervention. That was denied on 8 June 2000. On 11 January 2001, using the name Qian Yong Li, Mr Zhang purported to join a class action in the High Court and was granted a bridging visa with conditions, valid until 28 days after the determination of the class action. 5 On 23 September 2001, Mr Zhang met the appellant and they commenced a relationship on 2 December 2001. In late February or early March 2002, they commenced living together and, on 22 August 2002, Mr Zhang proposed marriage to the appellant. They were subsequently married on 2 November 2002, at Hurstville, NSW. 6 On 9 April 2003, Mr Zhang was detained at the Villawood Immigration Detention Centre and his then current bridging visa was cancelled, because he was in breach of various conditions, including that he not work, that he live at a specified address and that he notify change of address two days in advance. On 2 May 2003, Mr Zhang was released from detention and, accompanied by the appellant, departed Australia on 15 May 2003. 7 On the following day, Mr Zhang's then migration agents lodged a sub-class 309 spouse (provisional) visa application. That application was received by the Australian Embassy in Guangzhou on 22 May 2003. On 2 July 2003, Mr Zhang attended an interview with the Australian Embassy in Guangzhou. The appellant was also interviewed on the same day. The appellant returned to Australia on 3 August 2003, but on 10 August 2003 she returned to China to reside with Mr Zhang. 8 On 16 July 2003, Mr Zhang's visa application was refused on the grounds that he failed to satisfy the criteria in s 309.211 of the Regulations. An application for review of that decision was lodged with the Migration Review Tribunal which, on 20 February 2004, decided that Mr Zhang and the appellant were in a genuine relationship and thus met the criterion in paragraph 309.211. On 20 February 2004, the Refugee Review Tribunal provided the Consular-General in Guangzhou with a copy of its decision. 9 On 1 January 2004, the appellant had returned to Australia and, on 11 April 2004, gave birth to a daughter, the father of whom is Mr Zhang. The daughter is an Australian citizen. 10 On 28 April 2004, an officer of the Minister's department informed Mr Zhang that he was considering refusing his spouse visa application on the ground that he did not pass the character test because of his past and present general conduct. 11 On 26 May 2005, Mr Zhang's migration agents made submissions to the character section of the Minister's department. The migration agent also lodged a statutory declaration by the appellant stating that her daughter is difficult, that she needs her husband to assist her with caring for the child and that she could not live in China with the child because of certain worries she had concerning facilities available in China. 12 On 6 June 2004, the appellant returned to China with her daughter. 13 On 11 June 2004, the Minister's delegate decided to refuse Mr Zhang's sub-class 309 spouse (provisional) visa application on the ground that he did not pass the character test. On 30 June 2004, an application for review of that decision was lodged with the Administrative Appeals Tribunal. It is the decision of the Administrative Appeals Tribunal in relation to that application for review that is the subject of the appeal to this Court. 14 In early September 2004, the appellant returned to Australia, leaving her daughter in the care of Mr Zhang and his family in China. However, on 12 October 2004, the appellant returned to China and, on 12 November 2004, returned to Australia, bringing her daughter with her. 15 Under s 501(1) of the Migration Act 1958 (Cth) ('the Act') the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. That is a discretionary power. Section 499(1) of the Act provides that the Minister may give written directions to a person having functions or powers under the Act, if the directions are about the performance of those functions or the exercise of those powers. Under section 499(2A), a person must comply with a direction under section 499(1). The Minister has given a direction pursuant to section 499(1), being Direction No 21, concerning visa refusal and cancellation under section 501. Direction No 21 is dated 23 August 2001. 16 The appellant's complaint in the appeal is that the Administrative Appeals Tribunal did not have proper regard to the requirements of Direction No 21. It could not be suggested that the Administrative Appeals Tribunal ignored Direction No 21. The Administrative Appeals Tribunal referred in express terms to Direction No 21, and in its reasons explained the specific matters that it took into account in purported compliance with Direction No 21. 17 It is necessary to have regard to the relevant parts of Direction No 21 before examining the reasons of the Administrative Appeals Tribunal. The preamble to Direction No 21 includes the following: 'In exercising this power [the discretion to refuse a visa where the visa applicant does not pass the character test] the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas ... [to] non citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising discretions under section 501, for the protection of the Australian community.' There is then a heading 'Preliminary', under which the following appears: 'This Direction consists of two parts. Part 1 provides directions on the application of the Character Test. Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. If the non-citizen does not pass the Character Test, the decision-makers are to exercise the discretion to consider whether to refuse or cancel a visa, taking into account primary and other considerations. Part 2 provides directions on what these considerations are and the weight to be given to them.' 18 Section 501(6) provides that, for the purposes of section 501, a person does not pass the character test if certain matters are established. Part 1 of Direction No 21 deals with each of the subparagraphs of section 501(6). Section 501(6)(c)(ii) provides that one of the matters that is relevant to whether a person passes the character test is whether, having regard to the person's past and present general conduct, the person is not of good character. 19 Direction No 21 contains paragraph 1.9 in the following terms, relevantly: 'In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii) decision makers should consider the following matters… and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test: