Chiorny v Minister for Immigration and Multicultural Affairs(1997) 44 ALD 605, referred to

REASONS FOR JUDGMENT BURCHETT J This is an application, brought under Part 8 of the Migration Act 1958, and particularly s 475(1)(c), s 476 and s 481, challenging the validity of the cancellation of a visa. The applicant, Mr Zhang, was one of five Chinese (four men and one woman) who arrived in Melbourne at about 6.20am on 12 July 1997 on a flight from Beijing via Guangzhou (formerly known as Canton). Although the five fell into two groups of three persons and two persons, they appeared to be travelling together. Each of the persons had a short term business visa, known by the designation Class 456. The group of three, including the applicant, had obtained these visas on the basis that they proposed to conduct business discussions on behalf of Beijing Yi Ya Decoration Company Limited of Beijing, of which the applicant was said to be Deputy General Manager, with an Australian company C.R.C. International Pty Ltd ("C.R.C."). They had submitted applications to the Australian Embassy in Beijing, supported by a written invitation from C.R.C., signed by one Mary Lu, and their visas had issued accordingly. The other two had obtained their visas in a similar fashion, having been invited to Australia by another Australian company. After Mr Zhang had collected his luggage from the carousel, he was diverted by an official from the stream of incoming passengers, and was subsequently interviewed by an officer of the Immigration Department, a Mr Peric, in an office at the airport. As Mr Zhang spoke very little English, Mr Peric telephoned a Mandarin speaking interpreter, and the interview took place through the medium of a conference telephone, the interpreter being at the other end of the line. While, doubtless, this procedure made for administrative convenience and would be generally appropriate (Mr Peric said he always held interpreted interviews that way, but his does not appear to have been the general practice, since the one interpreter called gave evidence that she worked more often on site), it would be surprising if it did not add to the difficulties of persons less at ease with audio technology than some Australians. Mr Zhang has complained that he had difficulty communicating, although he attributed the problem to the interpreter's accent, probably wrongly in the case of this first interview. Later in the day, it is likely that jet lag and other factors combined to exacerbate the situation for him. The affidavit of the officer indicates that he asked Mr Zhang why he had come to Australia, to which Mr Zhang replied "he would be involved with C.R.C. in business negotiations surrounding the purchase of decoration and building materials". Mr Peric's affidavit continues: "He made no mention of Mary Lu and when questioned on this said negotiations on the deal had been undertaken by the General Manager. I informed the Applicant that he was not telling the truth. I produced a faxed copy of a letter addressed to the visa section Australian Embassy Beijing which shows not only that he had signed the letters of invitation but also negotiated the business meetings as the Deputy General Manager. The Applicant was also shown a further letter sent to him by Mary Lu confirming his invitation to visit CRC International. He was then further questioned on the specifics of the itinerary or meetings intended for the two week stay. The Applicant stated he was not familiar with it but claimed they would also be given an opportunity to see Melbourne." In fact, by the time this interview took place at possibly about ten o'clock (the evidence does not enable me to fix a precise time, but I accept evidence given by the interpreter, Catherine Nicolandos, that her services were called upon for a period of one hour and five minutes from about ten o'clock on that day for three interviews of approximately equal length, one of which was the interview with Mr Zhang, so that the time might have been closer to eleven o'clock), Mr Peric and another officer, a Ms Merriman, had been making various enquiries in relation to the five Chinese. Ms Merriman had ascertained that there was someone in the arrival hall, a Mr Frank Fei (or Fei Guo), who had come to meet the flight in question. Affidavits were read, for the applicant, of Mr Fei, and for the respondent, of Ms Merriman. Neither was cross-examined. But Mr Fei made specific statements about his conversation with Ms Merriman and also with another customs officer, in each case indicating that he had come to the airport to meet both the female Chinese in the group, Li Jie, and her companions. These statements were not specifically denied either by Ms Merriman or by the other customs officer, and I see no reason not to accept them. It is clear, on his own account, that he did not know personally any of the group other than Li Jie. It is also clear that he gave Ms Merriman to understand he had been told Lie Jie "was travelling to Australia for business purposes". He gave his mobile telephone number to Ms Merriman and continued to wait, but by three o'clock in the afternoon had heard no further. He then went to enquire at the customs office, where he was told that "the immigration officers had cancelled the visas of Li Jie and her companions". That his enquiry was couched in terms which elicited information about Li Jie's companions tends to confirm his statement that he was there to meet them as well as Li Jie, although he did not know them personally. The officers also contacted the Embassy in Beijing by telephone to make enquiries about the issue of the visas. A Mr Frodsham there stated the two groups had lodged separate applications for visas, supported by the Beijing company already mentioned, and by another company, Beijing Xin Yin Bo Electronic and Telecommunication Technical Co. However, all the application forms appeared to him to have been completed by the same person, and the support letters from the two companies "were so similar as to appear to him to have been completed by the same person". Apparently on the basis of these facts, as Mr Peric understood his telephoned information, he had reached the following conclusion: "The Chinese letters in support of the applications were determined by him to be fraudulent. On this basis he assessed that the documents were non bona fide and stated that had the applications been seen in unison at the time of decision, they would not have been approved." The telephone conversation was immediately confirmed by facsimile letter, the substance of which was as follows: "I refer to our telephone conversation a few moments ago. As I said, both PMO Michelle Frew and myself have been dragged in out of bed and have looked at these applications. Our observations and findings are; .the 5 pax applied in two separate groups, ie a group of three and a group of two; Group 1 ZHANG Jia Qing 150264 our file 97403/04 LI Jie 090371 LI Shen 130575 Group 2 XIA Yun Qiao 281159 our file 97407/04 YAN Xiao Bo 240273 .both groups were decided by different delegates on different days; .all forms are completed by the same person; .the inviting itinerary of each group is extremely similar; .each group was to be met on arrival at Melbourne Airport by the respective inviting company parties; .all claim to be Managers despite the youth of some members; .the letters presented in Chinese we now believe to be fraudulent having compared the typeface of the letters belonging to each group; We have no comment about the inviting parties in Australia as they may well be genuine in their intentions to invite these people. In reexamining these applications together we consider the applicant's [sic] to be non bona fide." Accompanying this facsimile letter were facsimile copies of: 1. A letter to the Australian Embassy Beijing signed "Zhang Jia Qing Deputy General Manager", requesting the issue of the visas and mentioning C.R.C. International Pty Ltd of Melbourne, but not (a matter possibly of some significance) Mary Lu; 2. A letter signed Mary Lu on behalf of C.R.C. International Pty Ltd (an ACN number is quoted) addressed to Mr Zhang Jia Qing as Deputy General Manager of Beijing Yi Ya Decoration Company Ltd, which confirms an invitation "to visit us in Melbourne in June 1997 to continue our business discussions and to advance our negotiation for on-going business co-operation." 3. A detailed travel itinerary covering three weeks from 24 June 1997; 4. Two forms of application for a temporary business visa filled out on behalf of Mr Zhang and Li Jie (having regard to the comment in the letter, it is curious to note that the handwriting on these forms is not at all the same, although the wording certainly supports the view that a common draft or precedent was employed); 5. A number of documents substantially in Chinese characters. In detailing the material received by facsimile from the Embassy in Beijing, I have relied on the affidavit filed in this matter sworn by Mr Peric. But when the hearing commenced, the matter was intended to be heard together with applications by each of the other four Chinese involved, and evidence in those matters was put before me on the basis that it could be relied upon as evidence in Mr Zhang's application. Subsequently, because of the time taken in the cross-examination of Mr Zhang, it was decided that his application alone would proceed at this stage to a conclusion of the hearing, but the other evidence remained before me. That evidence shows that other application documents were also sent by facsimile from the Embassy in Beijing, revealing both differences and similarities between applications. Although it was a Saturday, an attempt was made to reach Mary Lu by telephone at the telephone number shown on the letter, received by facsimile from the Embassy, on letterhead bearing the name C.R.C. International Pty Ltd. A person was spoken to who acknowledged the name Mary Lu, but, according to Ms Merriman, "said she was not familiar with the company C.R.C. International", and she was not expecting visitors from China. Later in the day, Ms Merriman again telephoned the number shown on the C.R.C. International Pty Ltd letterhead, and on this occasion spoke to a person who said that she was Mary Lu's daughter and that Mary Lu did have business interests in C.R.C. International. According to Ms Merriman, she "went on to say that her mother did sign a letter of invitation and was expecting a group of four people to arrive. However, she said that her mother had expected them two weeks ago and did not know that they were arriving today. When asked why Mary Lu did not say this earlier today her daughter said that her mother did not understand English too well." (Ms Merriman's handwritten notes of the earlier conversation confirm that there had been some difficulty, and she had noted "English not 100%".) Also at some stage during the day, there was a further telephone discussion with staff at the Embassy at Beijing. Mr Peric's affidavit records an unidentified staff member as stating "that they were satisfied with their assessment that the company letters and documents supporting the visit on which approval for the visa rested were now considered non bonafide [sic]." Mr Peric stated in his affidavit that he held a further interview with Mr Zhang "to discuss my concerns regarding the bonafides of the business visit and to give him an opportunity to address my concerns". According to Mr Peric, this interview was held using the same interpreter, but the interpreter who gave evidence stated definitely that she was only called upon once at about ten o'clock in the morning for a period of just over one hour, and not again in the afternoon. I see no reason to doubt her statement as to this, and am accordingly left without evidence, other than that of Mr Zhang previously noted, concerning the quality of the interpretation at the last interview, which was certainly held in the afternoon. Mr Peric says he raised with Mr Zhang the fact that his arrival in Australia was at a later date than had been scheduled and he had not been met by Mary Lu. Mr Zhang, according to Mr Peric, "could provide little detail about his proposed business program in Australia beyond elaborating that he would undertake business negotiations with C.R.C. International. He had no itinerary and did not know about any other business meetings arranged by his Australian host, or the interstate visits." Mr Peric's affidavit comments that "his lack of knowledge in regards to negotiations with both the Australian Embassy and C.R.C. has lead [sic] me to believe he may not be a bonafide business visitor. ... The visa office in Beijing had confirmed that letters presented in Chinese in support of their visa applications are believed to be fraudulent. ... Because of these points, consideration would be given to cancelling his visa." The affidavit continues that Mr Zhang "was asked for comments on this proposed action and given the opportunity to advance reasons why his visa should not be cancelled." The affidavit says nothing about fixing a time for response, but in oral evidence Mr Peric claimed (and his notes confirm this) that he told Mr Zhang he could have five minutes to think about it and that Mr Peric would be back for his response. The affidavit states: "An assessment was made by me that the Applicant was not a genuine business visitor intending to pursue the activities specified in the visa application form submitted to the Australian Embassy in Beijing." He decided "to cancel the Applicant's visa under s.116(1)(A)" [sic], and he gave the following reasons: "(a) the Applicant had arrived as a class 456 business visitor but could provide little detail about his proposed business program. (b) the Australian Embassy in Beijing stated he provided fraudulent Chinese documents when applying for his visa. (c) the reasons that he had given as to why the visa should not be cancelled did not convince me that this action should not take place. This action was effected through the visa cancellation data-base and by placing a 'label inoperative' stamp on the visa label." It is the decision to cancel his visa under s 116(1)(a) of the Migration Act that the applicant challenges. Section 116 provides as follows: "(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: (a) any circumstances which permitted the grant of the visa no longer exist; or (b) its holder has not complied with a condition of the visa; or (c) another person required to comply with a condition of the visa has not complied with that condition; or (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 (e) the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or (f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or (g) a prescribed ground for cancelling a visa applies to the holder. (2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled. (3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled." Although this case is primarily concerned with s 116(1)(a), it is necessary to consider the context provided by paras (b) to (g). The expression in paragraph (d) "immigration cleared" must be understood in the light of other provisions. Section 5 states that it "has the meaning given by subsection 172(1)". There it is relevantly provided: "A person is immigration cleared if, and only if: (a) the person: (i) enters Australia at a port; and (ii) complies with section 166; and (iii) leaves the port at which the person complied and so leaves with the permission of a clearance officer and otherwise than in immigration detention ... ." The definition of "port" in s 5 includes "a proclaimed airport". It is not disputed that Melbourne airport is such an airport. Section 166 is the provision requiring, relevantly, a non-citizen entering Australia to produce evidence of identity and of an effective visa, and to furnish required information. Applying paragraph (d) to the present case, as Mr Zhang had entered Australia at a port but had not left the port at the time of the impugned decision, he had not been "immigration cleared".