Hu v Minister for Immigration & Multicultural & Indigenous Affairs

The decision to cancel the visa 15 On 27 January 2003, the Minister's delegate decided to cancel the visa. 16 The formal record of this decision states (initially) (par 10) that, in the delegate's view, a "possible" ground of cancellation was s 116(1)(a) of the Act. Relevantly, s 116(1) provides that - '[T]he Minister may cancel a visa if ... satisfied that: (a) any circumstances which permitted the grant of the visa no longer exist; ... .' 17 The next section of the formal record (par 11) requires a statement of "Evidence of and reasons why grounds for cancellation exist". The delegate stated: 'Visa granted as [Independent executive] to manage daily operations of business in Aust. Intended business not purchased. Visa holder has spent 63 days in past 2 yr in Aust.' 18 The next section (par 12) calls for the decision-maker to make an "Assessment" whether "I consider that there are NO grounds for cancellation under s116", or whether, as the decision-maker then indicated, there are such grounds. 19 Paragraph 12 next requires that reasons be given, and the delegate stated: 'Visa holder provided info he had paid deposit on business. He did not buy the said business. He has not managed daily affairs of a business in Aust.' 20 Paragraph 12 then requires the decision-maker to state the "Reason why it is considered appropriate to cancel without notice under s 128". The delegate stated: "Applicant is offshore". 21 Sections 128 and 129 of the Act provide: '128 Cancellation of visas of people outside Australia If: (a) the Minister is satisfied that: (i) there is a ground for cancelling a visa under section 116; and (ii) it is appropriate to cancel in accordance with this Subdivision; and (b) the non-citizen is outside Australia; the Minister may, without notice to the holder of the visa, cancel the visa. 129 Notice of cancellation (1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice: (a) stating the ground on which it was cancelled; and (b) giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and (c) inviting the former holder to show, within a specified time, being a prescribed time, that: (i) that ground does not exist; or (ii) there is a reason why the visa should not have been cancelled; and (d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and (e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked. (2) The notice is to be given in the prescribed way. (3) Failure to give notification of a decision does not affect the validity of the decision.'

22 Paragraph 13 of the formal record states: 'In view of the findings and assessment above, I have decided to: ... ڤ CANCEL the visa holder's visa OR ڤ NOT CANCEL the visa holder's visa' 23 At this time, the delegate made a file note as follows: Visa cancelled using s128 under s116(1)(a). Hu claimd [sic] he had paid deposit on a battery business and would be the principal of that business. At interview the applicant admitted that he did not buy the business, has not been the principal in any business. I note that the eldest child is currently in Aust. Applicant initially claimed [s]he was living with a relative and when pressed for a name then claimed [s]he was living with a business partner. It appears the visa grant was for the purpose of gaing [sic] access to education for the child.' 24 With respect to the second applicant, reference should be had, at this stage, to the provisions of s 140(1) of the Act as follows: '140(1) Cancellation of visa results in other cancellation (1) If a person's visa is cancelled under section 109 (incorrect information), 116 or 128 or 137J (student visas), a visa held by another person because of being a member of the family unit of the person (within the meaning of the regulations) is also cancelled.' 25 The delegate, as has been mentioned, decided to cancel. 26 On 28 January 2003, the first applicant was interviewed by an officer of DIMIA. 27 The notes of the interview record the following: 'Hu Zhao Lin 28/1/03 · Advised of cancellation of visa - impact on dependents - 28 days to comment · Do not accept that you are in pos'n to direct business from day to day - only 63 days in Aust · App'n stated he had the intention to run a business in Austral. But competition did not allow him to stay. Too busy with bus. in China. · Just employed a manager to run shop.'

The decision not to revoke the decision to cancel 28 Section 131 of the Act provides: '131 Decision about revocation of cancellation (1) Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister: (a) if not satisfied that there was a ground for the cancellation; or (b) if satisfied that there is another reason why the cancellation should be revoked; is to revoke the cancellation. (2) The Minister is not to revoke the cancellation of a visa if there exist prescribed circumstances in which the visa must be cancelled.' 29 With respect to the second applicant, reference should be made here to the provisions of s 140(4), as follows: '(4) If: (a) a visa is cancelled under subsection (1), (2) or (3) because another visa is cancelled; and (b) the cancellation of the other visa is revoked under section 131, 137L or 137N; the cancellation under subsection (1), (2) or (3) is revoked.' 30 By letter to DIMIA dated 14 February 2003, the applicant's solicitors stated: 'In reply to your notice of cancellation under Section 128 of the Act, we submit the visa should notbeen [sic] cancelled for the following reasons: 1. Mr. Hu was issued a 457 visa mainly because he intended to invest and operate a business in Australia. Up to date, Mr. Hu has invested over A$1,000,000 in a news agency business and he has maintained to be the principal investor as the majority shareholder as well as the principal operator of the business. We enclose copies of business registration certificate, sales contract of the news agency, bank statements of All Advance Batteries Pty Ltd which Mr. Hu has 70% of its shares, copies of ASIC records for your reference. 2. Mr. Hu is the principal decision maker for the overall directions and the performance of the business. He was the person who made decisions on the purchasing and pricing of the business and on the choosing of the business premises. He negotiated and decided on the rental rates for the business premises. He hired the manager and other staff members, and decided their remunerations. He also decides the daily expenses of the business and other management matters. 3. Mr Hu's investment is beneficial to Australia because he has employed 10 Australian citizens and permanent residents in the news agency business and has provided a much‑needed service to the local community. We enclose copies of a letter from the accountant of the news agency in relation to the employment of Australian staff for your information. 4. Mr. Hu has been requested by the business to return to Australia on several occasions and he also wanted to check the performance of the business in person and to handle issues related to the taxation return and also the financial aspects of the business. 5. Mr. Hu has not been able to stay in Australia for long period of time mainly because his chief engineer in his business in China resigned due to sudden illness and it took him six months to recruit a new engineer and he was much needed to watch closely of his business performance in China for the last two years. He could have suffered losses of millions of dollars if he was not in China to supervise his business in China. 6. In relation to a 457ie visa holder's physical presence at the business premises, PAM 31.1 particularly points out that ["]exercising management control on a continuous basis should not be interpreted as requiring the applicant to be continuously present in Australia to manage the business" and ["]a person may set up a business in Australia while still having an active business interest in their home country and it is acceptable for applicants to travel outside Australia as part of their business activities." Therefore the fact that the applicant has not been in Australia continuously for period of time, since his visa was issued does not constitute any breach of visa conditions and a reason to cancel his visa. 7. The cancellation decision contains incorrect information. Mr. Hu has invested in Australia and there is a need for him to be present in Australia and to manage the daily operation of his business. 8. Should his visa be cancelled and he had to withdraw his investment in Australia he would personally suffer a serious financial loss and his 10 Australian employees will lose their jobs. We enclose copy of a letter from the manager of the news agency for your reference. 9. The local community will also suffer a loss of a service, which provides the convenience and is very much needed, especially during weekends in the local area. We submit a case like this should be assessed carefully and with the primary consideration of Australia's interest, especially the welfare of Australian employees of the business. In this particular case Mr Hu's investment has showed [sic] significant benefits to Australian interest and he has met his commitments to establish a business in Australia. His intention and activities are all legal and beneficial and should be encouraged in Australia. The Australian community would expect that his visa be reinstated. Based on the above it is submitted that the circumstances for the applicant to maintain his 457 still exist and the notice of cancellation contains incorrect information and there is no ground under any provision of the Migration Act to cancel Mr. Hu's visa. We therefore ask that the applicant's visa be reinstated as soon as possible.' 31 The Minister's delegate responded by letter dated 9 April 2003, stating - 'After considering your response, the Department has decided not to revoke the cancellation of your visa under s 131. On 20 February 2001 you were granted a subclass 457 visa based on your claims that you intended to purchase and develop a business in Australia and be a principal of that business, maintain a direct and continuous involvement in the management of the business and make decisions that affect the overall direction and performance of the business from day to day. On 23 January 2003 and 28 January 2003 you claimed at interview that you did purchase a business and are a principal in that business. From the evidence provided at interview and subsequently I accept your claims. At interview you stated that you had an intention to run a business in Australia but because of competition with your Chinese business and the need for you to be in China, you could not stay in Australia. As a consequence you hired a manager for your shop in Australia. You stated that you need to go and check on your business sometimes. In his submission of 14 February 2003, your agent claims that you are the principal decision maker for the overall directions and performance of the business. I accept that you were involved in the purchasing stage of the business and may have been involved with the hiring of a manager. However, there is no evidence to support your agent's claims that you "maintain a direct and continuous involvement in the management of the business" and "make decisions that affect the overall direction and performance of the business from day to day." Indeed your comments at interview were that you did not. You have not shown that the grounds for cancellation did not exist. You have not put forward any reason as to why your visa should not have been cancelled. ... '

The application for judicial review 32 By their further amended application, the applicants seek review by the Court of both the decision to cancel the visa, and the decision not to revoke the cancellation decision. 33 The applicants claim this relief: an order that both these decisions be set aside; or, in the alternative, an order setting aside the non-revocation decision, coupled with a direction that the Minister be ordered to reconsider the matter according to law. 34 With respect to the cancellation decision, the applicants rely upon the following grounds: '1. The first decision was not a decision with any lawful effect because it was infected by jurisdictional error: Particulars a) The power to cancel under s 128 may be used only when the three conditions specified in s 128 (a)(i), (a)(ii) and (b) are satisfied. These are pre‑conditions to the valid exercise of power. b) The decision‑maker misconstrued the meaning of s 128(a)(ii). c) The decision‑maker did not consider the appropriateness of resort to the extraordinary powers in s128 but had regard only to the fact that the First Applicant was "offshore". This is a necessary pre‑condition as a consequence of s 128(b). However, it cannot be a sufficient justification under s 128(a)(ii). d) The decision‑maker did not have regard to the fact that a consequence of the use of the power in s 128 was that a secondary visa holder, namely the Second Applicant, who was in Australia at the time of the first decision, was made into an unlawful non‑citizen without any warning and without any opportunity to make submissions. e) In making the first decision, the Second Applicant was denied procedural fairness. f) The decision‑maker failed to consider any discretionary factors when making the cancellation decision and, in so doing, failed to address the correct legal question.' 35 With respect to the non-revocation decision, the applicants rely upon these grounds: '2. The second decision was not a decision with any lawful effect because it was infected by jurisdictional error: Particulars a) In making a decision as to whether or not the cancellation should be revoked, the Minister is bound to have regard to whether he is satisfied that there is another reason that the cancellation should be revoked (s l31 (1)(b)). b) The decision‑maker made a finding that "You have not put forward any reason as to why your visa should not have been cancelled". c) The First Applicant's migration agent tendered a submission which stated "We submit the visa should not been (sic) cancelled for the following reasons". It then set out nine reasons which could have affected the discretion whether the visa should have been cancelled, including that the First Applicant would suffer a serious financial loss and 10 Australian employees would lose their jobs. d) The decision‑maker made a serious error in failing properly to understand the First Applicant's case in support of his request for revocation. This constituted a denial of natural justice: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26. e) The decision‑maker failed to have regard to relevant considerations, namely the matters put forward by the First Applicant. f) The notice under s 129 was flawed because the delegate failed to provide the particulars of the ground and the information relied upon in making the cancellation decision. In particular the notice did not indicate that the delegate had considered that it appeared that the original visa had been granted for the purpose of allowing the Second Applicant to access education in Australia.'

Conclusion on the application 36 Mr Lloyd, for the applicants, developed each of these grounds in a careful argument, but recognised, correctly, that the applicants needed, ultimately, to persuade the Court that its discretion to set aside these decisions should be exercised in the applicants' favour. 37 In my opinion, given all of the circumstances of the case, it would not be appropriate to exercise this discretion in that way, even if it be assumed, for immediate purposes, that the applicants could establish that one or both decisions were vitiated by the errors propounded. 38 In this connection, it is important, in my view, to recall the specific conditions upon which a Subclass 457(7) is granted. In the present context, the visa was granted upon the basis that the first applicant "propose[s] to develop a business" in Sydney to assemble car batteries. No possibility of acquiring an established bookshop was ever mentioned or countenanced. Yet by July 2002 the first applicant had abandoned his battery business proposal, notwithstanding that this was the whole basis upon which the visa was granted. Significantly, the first applicant made no attempt to inform DIMIA of the radical change of his position, or of his infrequent visits to Australia, until, six months later, when he was called in to be interviewed. 39 In my opinion, this conduct and the lack of candour on the part of the first applicant should be characterised as disentitling conduct for present purposes (cf Visy Board Pty Ltd v Attorney-General (Cth) (1983) 51 ALR 705 at 712 - 713). 40 Since the second applicant's position necessarily depended upon the first applicant's statutory entitlements, she can be in no better position, in discretionary terms, than that of the first applicant. 41 For completeness, I should add that it has never been suggested that the battery business proposal might be re-activated, and, in my view, the acquisition of the established bookshop business could not qualify as the basis for the grant of a Subclass 457(7) visa. 42 Accordingly, for these discretionary reasons alone, I would refuse the relief sought.

Orders 43 The application is dismissed, with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 17 and 18 September 2003