Ren v Minister for Immigration & Citizenship [2008] FCA 418

FEDERAL COURT OF AUSTRALIA

Ren v Minister for Immigration & Citizenship [2008] FCA 418

Migration Act 1958 (Cth) s 65, s 474, s 499, s 500(1)(b), s 501, s 501(6), s 501(7) Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 Stead v State Government Insurance Commission (1986) 161 CLR 141 YU REN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ADMINISTRATIVE APPEALS TRIBUNAL NSD 2112 OF 2007

BUCHANAN J

2 APRIL 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2112 OF 2007

BETWEEN: YU REN

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J DATE OF ORDER: 2 APRIL 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

The application is dismissed with 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 NSD 2112 OF 2007

BETWEEN: YU REN

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J

DATE: 2 APRIL 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT BUCHANAN J: 1 This judgment deals with a challenge to a decision of the Administrative Appeals Tribunal ('the AAT'). The applicant before this Court (Ms Ren) is an Australian citizen, as well as a citizen of the People's Republic of China. She has brought the present proceedings to challenge a decision of the AAT that her husband (Mr Lin) should not be granted a partner visa on grounds of character. 2 Before they met, Ms Ren's husband, Mr Lin, arrived in Australia (on 11 March 1995) under a false name and using a false visa and false Malaysian passport, although he also is a citizen of China. He applied for a protection visa which was refused first by a delegate of the Minister and then by the Refugee Review Tribunal on 26 February 1999. He then remained in Australia unlawfully. 3 Ms Ren and Mr Lin met in December 2001 and were married on 6 June 2004. A child (Marissa) was born on 7 June 2005. Mr Lin then approached the Department. He was granted a one week bridging visa on condition that he leave Australia. He did so with his wife and daughter on 23 August 2005 and two days later lodged his application for migration offshore. In October 2005 Ms Ren returned to Sydney with their daughter and has remained in Australia since. She claimed Marissa was ill in China and it would be harmful for the child to return. Mr Lin remained in China. By decision dated 1 December 2006, Mr Lin's application for a partner visa was refused by a delegate of the Minister on grounds of character. Ms Ren then lodged an application for review in the AAT (see s 500(1) (b) of the Migration Act 1958 (Cth) ('the Act')). 4 The AAT was required to consider for itself whether Mr Lin should be refused a visa. It was conceded before the AAT, and is conceded in this Court, that Mr Lin did not pass the character test in s 501(6) and (7) of the Act. That circumstance engaged a specific discretion to refuse Mr Lin a visa (cf s 65 of the Act which directs the grant of a visa if relevant criteria are satisfied). In the present case the question whether the AAT should exercise its discretion to refuse Mr Lin's visa was governed by a direction issued pursuant to s 499 of the Act – 'Direction Number 21, Visa Refusal and Cancellation under s 501'. The direction identifies three 'primary considerations' in the exercise of the discretion. Those three primary considerations are: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children. 5 Other, but less important, considerations include the compassionate claims of an Australian partner and the degree of hardship which would be caused to immediate family members lawfully resident in Australia. 6 The AAT concluded that the first two primary considerations weighed in favour of refusing Mr Lin a visa. The direction requires that 'a false or misleading statement in connection with entry or stay in Australia' be treated very seriously. The AAT concluded that Mr Lin had made 'multiple' such statements and did so again at the hearing itself. It said that Mr Lin had engaged in consistent and sustained abuse of the migration system. Weighing against those factors were the best interests of Marissa which, the AAT accepted, favoured not refusing a visa to Mr Lin, thus allowing him to return to Australia to be with his wife and baby daughter. The AAT also gave some weight (although, as required by the direction, not as a primary consideration) to the likely effect of visa refusal on Ms Ren and accepted it would be distressing for her. No issue arose concerning any effect on Mr Lin's immediate family (other than Ms Ren and Marissa) because the AAT found they all lived in China. 7 The AAT's deliberations about those various matters led to conclusions that: 'The primary consideration of the best interests of the child is the major factor favouring the grant of a visa in this case.' but that: 'the seriousness and persistence of the visa applicant's contraventions have the result that considerations of community protection and expectations outweigh the best interests of the child and the other considerations in this case.' 8 The exercise of discretion by the AAT is, as a matter of merit, unreviewable in this Court (see s 474 of the Act). In order to succeed in this Court, Ms Ren must show that the AAT committed jurisdictional error. If she is not able to do that the decision of the AAT is protected from judicial review. 9 The grounds of the application in this Court are that the applicant was denied procedural fairness and that the AAT took an irrelevant consideration into account. Procedural fairness 10 There are four matters which the applicant initially suggested demonstrate a denial of procedural fairness by the AAT. They were particularised in the following way: '(a) The Tribunal failed to disclose for comment conclusions drawn from its own observations which went to the credit of the applicant, those being, (i) That at the hearing the applicant appeared to speak to her daughter in Mandarin, rather than English, and (ii) That the daughter appeared to behave quite normally for a child of her age. (iii) That the applicant and her spouse colluded with each other during the lunch break so that their evidence would be consistent. (b) The Tribunal failed to disclose conclusions of fact which would not have been obvious from the known evidence, those being, (i) That the applicant and her spouse colluded with each other during the lunch break so that their evidence would be consistent. (ii) That because the applicant could only find Taxation notices of assessment for the years ended 30 June 1999 and 2000, the applicant's spouse did not pay tax after he became unlawful in 1999. (c) The Tribunal concluded that the applicant had given untrue and incomplete information to a psychologist, Mr Wolpers [sic], without either calling Mr Wolpers [sic] to give evidence, or disclosing its conclusions to the applicant for her comment. (d) The Tribunal relied on source materials not disclosed to the applicant, those being, (i) E Ryan, M Wilcon, K Kain, "Illness after international travel" (2002) 347(7) New England Journal of Medicine, 505. (ii) A Mangili, M Gengreau, "Transmission of infectious diseases during commercial air travel", (2005) 365(9463) The Lancet, 989.' At the hearing particulars (a)(i) and (ii) were not pressed. 11 The requirements of procedural fairness are, as the term itself suggests, concerned with the practical issue of whether a party to litigation (or some administrative procedures) has had a fair hearing and an adequate opportunity to put forward a case for consideration. The same is suggested by the term 'natural justice' which is now less frequently used. Neither the concept of 'natural justice' or 'procedural fairness', nor the principles which give expression to that concept, are concerned first and foremost with technical niceties. They are concerned with practical fairness. 12 What must be demonstrated in this case by Ms Ren is that she was denied a reasonable opportunity to make a contribution to her case or defend her interests in a way which might have made some difference to the outcome of her application (see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145). Any obligation upon the AAT in that respect did not extend to a need to forecast its evaluation of material advanced in Ms Ren's case (see Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506, 513; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 103, 119; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592). It is not without significance either that Ms Ren was legally, and capably, represented before the AAT. Particular (a)(iii) 13 The only aspect of particular (a) pressed at the hearing arose from the discussion by the AAT of Mr Lin's evidence by telephone where it was said: '(i) A striking example of his propensity to alter his evidence related to the possibility of their living in some other part of China. In examination-in-chief he stated three times that they could only live in his home town, where he now is, because they could not find somewhere to live in other cities and he could not find employment because of the relatively low level of his education certificate … After the luncheon adjournment, however, when again cross-examined on that point, he added that even if his wife could work in another city, their income would be insufficient to cover all their expenses, their daughter could receive an education only at an international school, and there was none in their town, that they could not move to another city because in order to obtain registration it was necessary to buy property there or marry a local person, and his wife's Beijing registration had been cancelled … In other words, he repeated point for point the evidence that his wife had give on the subject earlier in the day … Prima facie, the obvious inference is that over the luncheon adjournment, the visa applicant had colluded with the applicant to alter his evidence so that it corresponded with hers and strengthened their case. As that possibility was not put to him in cross-examination, however, I make no finding on the point.' (Emphasis added.) 14 Counsel for Ms Ren argued that, in the emphasised passage, the AAT had, despite its disavowal, expressed a factual conclusion of collusion between Mr Lin and Ms Ren which it was obliged to put squarely to Ms Ren. The first difficulty for the argument is that the statements by the AAT were not made in connection with any finding of credit concerning Ms Ren. It is clear, moreover, that the AAT was at pains to indicate that it was making no finding concerning the credit of Mr Lin in relation to this issue or as to whether collusion had occurred. The point of the observation was to draw attention to inconsistencies in Mr Lin's evidence, rather than assign a reason for them. No denial of procedural fairness is revealed by the AAT's remarks. 15 Particular (a)(iii) therefore does not provide any support for the present application. Particular (b) 16 I have already dealt with the first aspect of particular (b). There were no conclusions of fact which arose from the issue referred to in particular (b)(i). 17 The second aspect arises from observations by the AAT about Mr Lin's evidence as follows: He was asked in cross-examination whether he had paid income tax while working in Australia. At his counsel's request he was cautioned that he could refuse to answer the question if he thought it might incriminate him. After a suspiciously long pause, he replied that he had paid income tax. Following the additional two weeks after the hearing allowed for the tendering of additional documentary evidence, including tax records, he was able to produce notices of assessment for the years ending 30 June 1999 and 30 June 2000 only. It therefore appears probable that after he became an unlawful resident in 1999, he continued to work without paying income tax.' (Emphasis added.) 18 The two notices of assessment produced to the AAT made it clear that Mr Lin paid tax even after he chose to remain in Australia unlawfully (i.e. from 2 April 1999). To that extent, therefore, the AAT findings are not accurate. It may also be doubted whether there was an adequate foundation for any conclusion that tax was not paid after 30 June 2000. Any such conclusion could be based only upon an inference arising from non-production of later tax returns. The inference seems slight. However, that is not to the point so far as the identification of jurisdictional error is concerned. No opportunity arises in the present proceedings to simply challenge the factual findings made by the AAT. The applicant accepted that but argued that the AAT denied Ms Ren (and Mr Lin) procedural fairness by not disclosing its factual conclusions before announcing a decision. 19 There is no basis for a contention that Mr Lin (or Ms Ren) were denied a proper opportunity to deal with the issue whether Mr Lin paid tax while in Australia both lawfully and unlawfully. The issue arose in cross-examination of Mr Lin where he was asked: 'Mr Lin, at any time that you were employed while you were in Australia did you pay tax to the Australian Government?' 20 After some procedural discussion he responded: 'Yes. I paid tax to Australian Government'. Then he was asked immediately thereafter: 'Mr Lin, do you agree that you worked illegally in Australia from April 1999 until you departed Australia in August 2005?' He answered: 'Yes. I agree with that.' 21 The second exchange may relate to whether Mr Lin paid tax, worked contrary to visa restrictions (i.e. without permission) or both. It provides some foundation for the inference drawn by the AAT. Compliance with the laws of Australia was a relevant consideration for the AAT. There is no doubt that the issue whether Mr Lin had met his obligation to pay tax was squarely raised as part of the subject matter being discussed. It is therefore apparent that the issue whether Mr Lin had paid tax on his earnings was a live one (Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305). The notices of assessment later produced showed that Mr Lin did pay tax during some, at least, of the period that he remained unlawfully in Australia. Ms Ren and Mr Lin had an opportunity, when they were produced, to make a submission about the rest of the period and, in particular, to explain why no further records were available. In the absence of any further records or explanation, the AAT was not disentitled to draw an inference that Mr Lin not only worked illegally but paid no tax. There was, in the circumstances, no denial of procedural fairness. Particular (c) 22 The context for this assertion must be set out before it is discussed. The AAT made the following relevant statements and observations: '24. They [Mr Lin, Ms Ren and Marissa] returned to China in August 2005. She said that while they were there the baby became very sick because the environment was bad for her. She returned to Sydney in October 2005 and from then on has had to raise the baby on her own. She finds it difficult and it has caused her depression. (In her statutory declaration of 5 May 2006, however, she attributed her moods to post-partum depression from which she was still suffering). … 87. He [Mr Wolfers] also administered three tests to measure Ms Ren's ratings on scales of depression, hopelessness, anxiety and stress, finding her to be severely depressed, hopeless, anxious and stressed. Apparently, Ms Ren had not told him that, accordingly to her statutory declaration of 5 May 2006 … she had suffered from post-partum depression and still had recurrences of it from time to time. 88. The remainder of the report relates, and draws conclusions from, facts and circumstances as stated by Ms Ren herself. It specifically notes that her claims about the educational system in China had not been verified. And it is clear that the information she conveyed to Mr Wolfers was incomplete and untrue in material particulars. 89. As has been noted, she apparently did not tell him that she had suffered recurring post-partum depression.' 23 Evaluation of Ms Ren's mental state arose from the need to consider the compassionate claims of an Australian partner. That was a consideration for the AAT although not one of the three primary considerations. Mr Wolfers' report was tendered by Ms Ren. The evidence about post partum depression was contained in her statutory declaration. The AAT had no obligation to call Mr Wolfers to give oral evidence or advise Ms Ren how it might evaluate the whole of her evidentiary case. There was no denial of procedural fairness as alleged. Particular (d) 24 The paragraph in the AAT decision in which the two reports in question were mentioned was as follows: '146. I accept that the child was sick, but whether that was because, as the applicant originally indicated at the hearing, she herself was sick and therefore unable to feed the baby nutritiously, or for some other reason, is not clear. For the reasons given above, I do not accept the reliability of Exhibit A6. It is common for people to suffer health disorders when they are visiting other countries. Further, international air travel is itself an accepted independent cause of health problems (see E Ryan, M Wilson, K Kain, Illness after international travel", (2002) 347(7) New England Journal of Medicine, 505; A Mangili, M Gendreau, "Transmission of infectious diseases during commercial air travel", (2005) 365(9463) The Lancet, 989. And Ms Van Duyn pointed out, the fact that Marissa was sick on one occasion does not mean that the same thing would happen again.' (Emphasis added.) 25 The two reports were referred to in connection with the last sentence emphasised. That remark was merely an illustration of a more general proposition that people commonly suffer health disorders when visiting another country. Those observations reinforced the conclusion that Marissa's difficulties could not be attributed necessarily, as was alleged, to pollution or the environment generally in China. 26 Exhibit A6 was a medical report tendered by Ms Ren on the morning of the hearing. It purported to be from the Joint Hospital of Changle City, Tantau Town Clinic and was dated 12 June 2007, about four weeks before the hearing. The AAT found that the report contained a number of anomalies and additions and was unreliable. That report is dealt with in the AAT decision as follows: '95. On the morning of the hearing the applicant tendered a medical report, with translation, from the Joint Hospital of Changle City, Tantou Town Clinic, dated 12 June 2007. 96. This was an important piece of evidence on the issue of the best interests of the child, as previously there had been no corroboration of the applicant's claim that Marissa had suffered pollution-caused sickness while in China. 97. Her mother's statutory declaration of 24 October 2005 … describing the visit to China in August 2005 contains no reference at all to any health problems the child might have suffered. Similarly, the statement by Ms Ren's parents … which also describes the visit, refers to family activities during their stay in Beijing and the visits they made to various places with the baby. There is no reference to any sickness.' 27 The report was set out in full. Then the AAT said: '100. During submissions, counsel for the applicant relied on Exhibit A6 and submitted that if Marissa was sick in Mei Hua once before, she could be again. As he was moving on to another point, I noticed the date on the certificate and pointed it out. It seemed anomalous, as the report began by stating that Marissa suffered from respiratory problems "for the past two months", which could mean either April and May 2007 or May and June 2007. But she had not been in China since at least October 2005. In any event, she has never spent as much as two months in China, having been there for a total of six weeks at the most. 101. Closer examination revealed other oddities. The report states that the patient had suffered similar illness "twice since August 2005", but for most of that time she has been in Sydney. 102. Further, the diagnosis describes signs and symptoms as being in the present, in other words during 2007.' 28 It is not necessary to pursue the detail further. Reference to the two reports about which specific complaint was made in particular (d) does not add materially to the finding made by the AAT that the cause of Marissa's sickness in China, which was accepted, was unclear, and did not provide support for an underlying contention that Marissa's interests would be adversely affected by any possibility she might live in China. The suggestion that there was any denial of procedural fairness by failing to disclose the two reports dealing with illness arising from international air travel cannot be sustained. Irrelevant consideration 29 This complaint arises from the following comment by the AAT towards the end of its decision: '158. Past tribunal decisions have also drawn attention to the unwisdom of bringing a child into the world when there is no certainty that the family will be able to live together in the country of their choice …' 30 The observation was made immediately after the following was said: 'Visa refusal would be distressing for Ms Ren, but the weight given to compassion for her situation must be conditioned by the fact that she entered into the relationship and subsequently marriage in full knowledge of the visa applicant's unlawful conduct and presence.' 31 The observation about which complaint is made, I am bound to say, seems unnecessary and prone to be misunderstood. However, consideration of the context in which it was made shows that the AAT was dealing here also with consideration of the compassionate claims of Mr Lin's Australian partner, Ms Ren. Marissa's interests were considered separately. The comment complained of did not indicate disregard of Marissa's interests and gives no support to the proposition that the AAT allowed itself to be deflected from its task by an irrelevant consideration.