Minister for Immigration and Citizenship v Shea

Minister for Immigration and Citizenship v Shea - [2011] FCA 37 - FCA 2011 case summary — Zoe

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THE TRIBUNAL HEARING 7 On 18 June 2009 Mr Shea applied to the Tribunal on behalf of Ms Shea for a review the Minister's decision on the ground that it was wrong and unfair. 8 The Tribunal referred extensively to evidence provided by Mr Shea and by Ms Shea. The Tribunal found that Ms Shea resided with her mother, her brother, his wife and their two children in a village known as Phrae, approximately five to six hours drive north of Bangkok, Thailand. The Tribunal found that at the time of the hearing, Ms Shea was caring for the children while her brother and sister in law worked. The Tribunal found that Ms Shea was illiterate, having attended school for only one or two years; that she ceased her schooling because she became ill; and that she later worked to assist her family who were poor. Before the Tribunal she claimed to have first travelled to Australia in 1993 using a visitor's visa an acquaintance had obtained for her. Such visa documentation contained information to the effect that she was married to a Mr Baumer, a person she later admitted not to know. 9 The Tribunal recorded that Ms Shea then returned to Thailand where she married a Thai national, Mr Prasith Veeravattananun, on an unspecified date but the marriage was dissolved on 3 June 1993. Following advice that her birth-name was unlucky, Ms Shea changed her name and on 16 March 1995 married an Australian, Mr Michael Ruff. Following an unsuccessful visa application to the Department, the marriage dissolved. On 3 October 1995 Ms Shea married a Thai national, Nopadol Manola, but this marriage dissolved on 8 November 1995. 10 The Tribunal questioned Ms Shea concerning the conviction. Ms Shea told the Tribunal that she wished to travel to Japan to work to support her family and paid an acquaintance a sum of money to arrange a visa. She claimed that she did not know that the visa issued to her was false. She claimed to have avoided prison because her sister made arrangements to raise bail. 11 Ms Shea said that following the conviction, she made an agreement with an acquaintance who arranged for her to return to Australia. Pursuant to the agreement Ms Shea would repay the acquaintance by working at employment which the acquaintance would arrange. She claimed that during her flight to Australia she realised that the visitor visa and passport that had been given to her by her acquaintance had been issued in a false name. She arrived on 28 December 1996 and instead of being found work of a domestic nature as promised, she was found work in a brothel. Ms Shea claimed that she was aware that she only possessed a visitor's visa but that the persons for whom she worked had indicated that they would arrange for a different kind of visa. 12 The Tribunal heard that after six months of employment Ms Shea had repaid her debt and soon after she had met Mr Shea at a hotel in Hurstville in 1997. They began a relationship and between three and six months later began cohabitating. They remained as a couple and travelled to Thailand in December 2003. They were married in Thailand on 12 January 2004. Mr Shea returned to Australia but travelled to Thailand a number of times in the period from 2004 to 2006 to visit Ms Shea who remained in Thailand. 13 On 10 September 2004 Ms Shea lodged a Partner (Provisional) (Class UF) visa application. On 24 March 2006 Ms Shea was asked to complete a new visa application form which she duly lodged on 7 April 2006. On 8 January 2009 the Department of Immigration and Citizenship ('the Department') forwarded a Notice of Intention to Consider Refusal of a Visa to Mr Shea who was authorised to receive correspondence on Ms Shea's behalf. The notice was responded to on 3 March 2009, but the visa was formally refused by the delegate on 21 May 2009, as referred to above.

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TRIBUNAL FINDINGS 14 The 'character test' is defined in s 501(6) of the Act which provides: (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or (b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or (d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way. Otherwise, the person passes the character test. 15 The Tribunal found that Ms Shea did not pass the character test because of her past serious misconduct. The Tribunal then considered whether, not withstanding the fact that Ms Shea failed the character test, it should exercise its discretion to grant the visa. 16 The Tribunal took into account the requirements of 'Direction 41 - Visa Refusal and Cancellation under s 501' ('Direction 41') which came into operation on 15 June 2009 and replaced Direction 21 referred to above at [6] as the relevant direction. The object of Direction 41 is to regulate in the national interest the coming into and presence in Australia of non-citizens. Direction 41 requires a decision-maker to take into account both the 'Primary Considerations' and 'Other Considerations' of Part B of the Direction when determining whether discretion should be exercised in favour of an applicant despite their failure of the character test. 17 As to the primary considerations, the Tribunal referred to the protection of the Australian community (see 10.1 of Direction 41) and the length of time that the applicant had ordinarily been resident in Australia (see 10.3 of Direction 41). The Tribunal found that Ms Shea's immigration misconduct was 'very serious'. The Tribunal also noted that Ms Shea had worked in order to send money to her family in Phrae who had been living in poverty but who now owned a house. 18 The Tribunal at [44]-[45] of its decision found: 44. Because Ms Shea had little education or knowledge of immigration requirements and was illiterate and therefore reliant on others, she was obviously gullible and easily exploited in trying to achieve her objective. She acknowledges that what she did was wrong and apologises for her conduct. In my view, the relationship that she established with Mr Shea is a genuine one, and I accept that for a significant time she avoided revealing her true status to Mr Shea for fear that he would reject her. In his turn, he preferred not to delve too closely because it was easier not to do so. However, when finally they did discuss her status, they decided that she should return to Thailand and that she should apply for a visa in the proper way. She did this and has now been waiting for an outcome for seven years. 45. In my view, there is a minimal risk that Ms Shea will repeat such misconduct. In December 2003, she returned to Thailand voluntarily and has remained there since, separated from her husband, in the hope that she will be granted a visa permitting them to live together in Australia. There is no evidence of any misconduct on her part in the intervening seven years and I am satisfied that she now appreciates the importance of adhering to the law. I therefore conclude that an exercise of the discretion in her favour poses no risk of harm to the Australian community. 19 In assessing the period in which Ms Shea had been ordinarily resident in Australia prior to engaging in illegal activity, the Tribunal found that such period was not to be regarded favourably in Ms Shea's application as Ms Shea's misconduct commenced soon after her arrival in Australia. The Tribunal found at [46] that such consideration should be regarded as a neutral factor, citing Re Tapukesolova Puafisi and Minister for Immigration and Citizenship [2009] AATA 689 at [39]-[41]. 20 The Tribunal found that there was a genuine marital relationship existing between Mr and Ms Shea; that they had lived together in Australia for a period of over six years and that they had maintained their pursuit of a visa since first lodging a visa application in 2004. The Tribunal noted that Mr Shea had visited Thailand on three occasions, most recently in 2006 and that he and his wife maintained contact by telephone once or twice per week. The Tribunal accepted Mr Shea's evidence that 'because of his wife's unresolved visa application, he has found it too painful to visit Thailand since [2006]'. 21 The Tribunal concluded that these circumstances supported the exercise of discretion in Ms Shea's favour. The Tribunal concluded that whilst Ms Shea failed the character test provided under s 501(1) of the Act, an exercise of discretion in her favour would pose no risk to the Australian community and that, on balance, the primary and other considerations favoured the exercise of discretion in her favour.

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SUBMISSIONS 22 The Minister made extensive submissions to the Tribunal in writing in the form of the 'Respondent's Statement of Facts and Contentions' ('The Minister's Statement'). Those submissions included a detailed summary of the migration frauds engaged in by Ms Shea, both in Australia and in Thailand. The Minister also made oral submissions at the Tribunal hearing. 23 The Minister's Statement included submissions relating to the prospect of future misconduct. The Minister made the following written submission to the Tribunal: The Minister acknowledges that Ms Shea is not likely to engage in the same type of immigration fraud if she is granted a permanent visa. However, the Minister contends that there is a not insignificant risk that Ms Shea could engage in fraudulent conduct for other purposes, if it was to her advantage, such as obtaining benefits to which she is not entitled, particularly if her relationship with the applicant were to break down. 24 The Minister asserts before this Court that the Tribunal constructively failed to exercise its jurisdiction by failing to consider a submission that Mr Shea's wife may, if permitted to come to Australia, engage in fraudulent conduct for non-migration purposes such as obtaining benefits to which she would not be entitled. The Minister submits that the words 'such misconduct' (see Tribunal's finding reproduced at [18] above) was a reference clearly confined to the migration misconduct engaged in by Ms Shea. The Minister submits that the reasons following such finding (see [18] above) solely address the prospect of Ms Shea committing further migration offences in the future. The Minister submits that the Tribunal failed to address the submission that Ms Shea may commit non-migration offences in the future and accordingly fell into error. 25 The Minister submits that whilst the Tribunal was entitled to reject the Minister's submissions if it was satisfied that it was correct to do so, the Tribunal was required to deal with the Minister's submission that Ms Shea may engage in illegal conduct of a non-migration kind if she were granted a visa. The Minister submits that such submission was of critical significance, and that specific and detailed submissions had been made to the Tribunal relating to the prospect of Ms Shea engaging in future non-migration misconduct yet the Tribunal failed to address such submission. 26 Mr Shea, who appeared before this Court unrepresented, submitted that the Tribunal's finding, when considered as a whole, is not ambiguous or deficient as alleged by the Minister. Mr Shea submits that while the words 'such misconduct' in [45] of the Tribunal's reasons could be interpreted as a reference to Ms Shea's migration misconduct, the findings following such words are clearly in relation to both migration and non-migration conduct. Such findings are as follows: There is no evidence of any misconduct on her part in the intervening seven years and I am satisfied that she now appreciates the importance of adhering to the law. 27 Mr Shea submitted that the use of the words 'any misconduct' and the finding that Ms Shea appreciated the importance of adhering to 'the law' demonstrated that the Tribunal's findings were not limited in the manner contended by the Minister.

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Review of the Reasons of a Tribunal 29 There are numerous authorities, as detailed below, which demonstrate that the reasons of the Tribunal should not be scrutinised too closely. The Tribunal is not a court. Rather, it is designed to provide an efficient and informal forum of review for contested administrative decisions. 30 In Collector of Customs v Pozzolanic Enterprises Pty Limited (1993) 43 FCR 280 at 287, the Court warned against finding error based upon the language used by the Tribunal, stating as follows: The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts: Lennell v. Repatriation Commission (1982) 4 ALN N 54 (Northrop and Sheppard JJ); Freeman v. Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 164 (Sheppard J); Repatriation Commission v. Bushell (1991) 13 AAR 176 at 183 (Morling and Neaves JJ). The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Politis v. Federal Commissioner of Taxation (1988) 16 ALD 707 at 708 (Lockhart J). 31 The High Court of Australia in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 cited the above observations and at 272 said: These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. [Footnotes omitted] 32 In Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 Fox J said at 621: It is a mistake to conclude simply from the fact that a judge or Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped his attention. 33 There is however a countervailing consideration when undertaking a review of the reasons of the Tribunal, namely that despite any shortcomings in the manner of expression or language used by a tribunal, the reasoning of a tribunal must be such that it demonstrates an adequate consideration of the submissions raised by the parties. 34 In Defence Force Retirement and Death Benefits Authority v House (2009) 49 AAR 525 Collier J at [31] succinctly stated the applicable principle as follows: The law is clear that failure to consider a submission of substance which, if accepted, would be capable of affecting the outcome of the case, constitutes an error of law (WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; Casarotto v Australian Postal Corporation (1989) 10 AAR 191 at 195; Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1122 at 1130; [Australian Postal Corporation v]Sellick [(2008) 49 AAR 108] at [35]. 35 The above principle is well established: see Nelson v Comcare [2009] FCA 1149 at [50] per Foster J; Zoia v Secretary, Department of Employment and Workplace Relations [2008] FCA 988 at [29] per Siopis J; Comcare v Rowe (2002) 35 AAR 410 at [12] per Merkel J; Australian Postal Corporation v Hughes (2009) 111 ALD 579 at [60]; Casarotto v Australian Postal Corporation (1989) 86 ALR 399 at 402-403 per Hill J. 36 The question then arises, how is it to be determined whether there has been a failure of the kind referred to in the above authorities? In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, the Full Court said at [47]: The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.

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Has there been an active intellectual process? 37 In Deloitte Touche Tohmatsu (formerly known as Deloitte Haskins & Sells and Deloitte Ross Tohmatsu) v Australian Securities Commission (1996) 136 ALR 453 at 468, Lindgren J considered the meaning of 'take into account' (in respect of a relevant consideration) and stated the question before him as follows: The question before me is whether ASC "really", "genuinely", "properly" and "effectively" took into account the consideration referred to; cf Brelin v Minister for Immigration and Ethnic Affairs, (Fed C of A, Wilcox J, 14 May 1987, unreported) at 9-10; Khan v Minister for Immigration and Ethnic Affairs, (Gummow J, 11 December 1987, unreported) at 11-12; Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1; 91 ALR 586 (Sheppard J) at FCR 12-13; Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 455 at 472 (Fed C of A, Wilcox J); Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409; 121 ALR 435 (Fed C of A, Full Court) (Teoh) at FCR 412 per Black CJ; Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs (1993) 34 ALD 169 at 178-180 (Fed C of A, Burchett J). 38 His Honour observed that it was for the applicant to make out a case of a failure of the decision-maker to 'take into account' a relevant consideration. His Honour said at 468: It is for an applicant to make out its case of "failure to take into account", but the circumstances may be such that the applicant will be aided in this task by an absence of evidence from the decision-maker on a particular matter, such as an absence of evidence giving rise to an inference of a failure to make further inquiries when a genuine taking into account would have called for them; cf Teoh at FCR 413-414 per Black CJ; C v T (1995) 58 FCR 1 per Burchett J at 21-22. (The High Court dismissed an appeal in Teoh (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; 128 ALR 353) on grounds not presently relevant.) 39 In Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276, Jenkinson J said: Therefore, if the applicant's submission, or a modification of that submission, were held by this court to be correct in point of law, the failure of the Tribunal to mention either the submission or the questions of fact about value to which I have referred would leave this court and the parties unable to determine whether, on the one hand, error of law had vitiated the Tribunal's consideration of the submission or, on the other hand, the submission had availed the applicant nothing because the factual basis on which it rested had not found acceptance by the Tribunal. There is also the further possibility that the Tribunal's failure to mention either the submission or the questions of fact which it raises was the result of a failure, by inadvertence, to consider the submission when the Tribunal was engaged in deciding the reference. 40 In Ma v Commissioner of Taxation (1992) 37 FCR 225, Burchett J said at 231: It was the Tribunal's task, imposed on it as a matter of legal duty, to consider the case presented to it. Its failure to do so was, adapting the language of Samuels JA in Mifsud [v Campbell (1991) 21 NSWLR 725] at 728, a failure to do what the nature of the office of a member of the Tribunal required. This was an error of law. 41 For further expression of the above principle that a failure by the Tribunal to address a submission of substance can constitute an error of law: see Repatriation Commission v Rogers (1999) 29 AAR 164 at [13]; Repatriation Commission v Tiernan [2001] FCA 519 at [12]; House at [31]. 42 Failure to respond to substantial, clearly articulated argument relying upon established facts may also give rise to a denial of natural justice: see Dranichnkov v Minister for Immigration and Multicultural Affairs (2003) 193 ALR 389 at [24].

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Application of Principles 43 The Court accepts that the Minister's submission that Ms Shea may engage in fraudulent non-migration conduct if granted a visa was a substantial and clearly articulated argument that the Tribunal was required to address. However, for the reasons provided hereunder, the Court is of the view that the Tribunal adequately did so and accordingly rejects the Minister's submission that the Tribunal's reasons are inadequate. 44 The crucial paragraphs for assessment in the Tribunal's reasons are [44] and [45], as set out in [18] above. 45 The Court notes that the majority (if not totality) of Ms Shea's prior acts of misconduct relate to migration offences. Accordingly, in setting out Ms Shea's detailed history, the Tribunal was solely addressing Ms Shea's past migration misconduct. The Tribunal then made a finding that Ms Shea would not repeat 'such conduct' (that being migration misconduct) in the future. Such conclusion had largely been conceded by the Minister in its submissions (see [23] above). 46 The sentences following such finding, are as follows: There is no evidence of any misconduct [emphasis added] on her part in the intervening seven years and I am satisfied that she now appreciates the importance of adhering to the law [emphasis added]. I therefore conclude that an exercise of the discretion in her favour poses no risk of harm to the Australian community 47 Although immediately proximate to a passage solely addressing migration offences, the Tribunal's findings are clearly elevated to a higher level of generality than mere migration misconduct. In the Court's view, references to 'any misconduct' and 'the law' should be afforded their plain meaning so as to encapsulate both migration and non-migration misconduct and law. The Court finds that the use of such phrases was intentionally general (see Applicant WAEE at [47]) and that to hold that such findings were limited to migration offences as opposed to non-migration offences would be to construe such findings minutely and with an eye keenly attuned to the perception of error. 48 Accordingly the Court holds that such findings sufficiently address the Minister's submission put to the Tribunal that Ms Shea might engage in non-migration misconduct if granted a visa. 49 The Court is strengthened in this conclusion given the concession of the Minister's submission (extracted at [23] above) that Ms Shea would be unlikely to engage in further migration offences. Such concession left for the Tribunal's consideration the prospect of Ms Shea committing non-migration misdemeanours. Accordingly it would seem puzzling to hold that the phrases 'any misconduct' and 'the law' should be construed as referring only to migration misdemeanours when, in view of the applicant's concession that Ms Shea was unlikely to engage in immigration fraud (see [23] above) such conduct was largely not in issue. In circumstances where Ms Shea was to be granted the visa as requested, she would have no personal incentive to continue to commit offences against Australian migration laws in any event. In these circumstances, the prospect of Ms Shea committing further offences must be essentially restricted to the non-migration context. 50 In summary, to hold that the Tribunal had somehow limited its findings in relation to 'any misconduct' and 'the law' to purely migration offences would be incongruous with the facts before the Tribunal, which disavowed the likelihood of Ms Shea engaging in such conduct in the future. It is clear that the Tribunal considered it was unlikely that Ms Shea would engage in any further migration or non-migration misconduct and accordingly it did not accept the Minister's submission that if granted the visa, Ms Shea may engage in fraudulent non-migration behaviour. 51 The Court finds the Tribunal's reasons adequately addressed the submissions of the Minister and accordingly no error on the part of the Tribunal has been disclosed. It follows that the application should be dismissed. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

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