Minister for Immigration and Ethnic Affairs v Wu Shan Liang

Federal Court of Australia|1998-12-23|Before: Merkel J

Introduction Teresa Pasini Cabal ("Cabal") arrived in Australia in October 1996 with her husband Carlos Cabal Penishe, their four children and a person described in the evidence as a "nanny" who assisted in looking after their children. Monserrat Gonzales Karras ("Karras") arrived in Australia in April 1997 together with her partner Marco Pasini Bertram who is Cabal's brother. Cabal and Karras were granted visas and permission to enter Australia under their assumed names. Cabal's husband and Karras' partner were arrested by Australian Federal Police in November 1998 pursuant to a provisional warrant pending extradition proceedings seeking their extradition to Mexico. All of the individuals concerned are Mexican citizens who had fled Mexico and lived under assumed identities in a number of countries over the last two years in an endeavour to avoid detection by the Mexican authorities. The Australian authorities are seeking to extradite Cabal's husband and Karras' partner to Mexico to enable the prosecution of certain criminal offences alleged to have been committed by them in Mexico. The individuals concerned claim that their prosecution constitutes persecution on grounds of actual or imputed political opinion and are seeking protection visas on the basis that they are entitled to refugee status. After the arrest of Cabal's husband and Karras' partner it became apparent that each had entered Australia under false premises and their visas were subsequently cancelled. The cancellation of their visas resulted in the cancellation of the visas granted to Cabal and Karras. They were each taken into detention where they have been held since that time. Initially, the Karras' four children and their nanny were also taken into detention but they were released. Cabal and Karras applied for the grant of a Bridging E (Class WE) Subclass 050 (Bridging Visa (General)). The grant of the visas would enable Cabal and Karras to be released from detention pending the determination of their applications for protection visas. A delegate of the Minister refused to grant Bridging E visas to the applicants. Applications for review of the decisions of the delegate were made to the Immigration Review Tribunal ("the IRT") which affirmed the decisions of the delegate refusing to grant the visas sought by Cabal and Karras. Cabal and Karras have applied to the Court for the review of the decisions of the IRT pursuant to Pt 8 of the Migration Act 1958 (Cth) on the ground of error of law.

The IRT decisions The issue upon which the decisions of the IRT turned can be briefly stated. One of the primary criteria for the Bridging E visa was that the IRT be "satisfied" that if the visa is granted, the applicant for the visa "will abide by the conditions" imposed on it. The conditions which may be imposed are set out in Sch 8 of the Migration Regulations. The IRT stated that if it were to grant a visa to Cabal and Karras it would impose the following conditions: "8101 The holder must not engage in work in Australia. … 8401 The holder must report: (a) at a time or times; and (b) at a place; specified by the Minister for the purpose. … 8506 The holder must notify Immigration at least 2 working days in advance of any change in the holder's address. 8507 The holder must, within the period specified by the Minister for the purpose: (a) pay; or (b) make an arrangement that is satisfactory to the Minister to pay; the costs (within the meaning of Division 10 of Part 2 of the Act) of the holder's detention." Failure to comply with any conditions can result in cancellation of the visa: see ss 41, 116 and 119. The IRT said, correctly in my view, that: · its task was to decide whether each of the applicants "would abide by those conditions"; and · in deciding that question it was required to weigh the evidence of each applicant's past against her present statements and the statements of those who have known the applicants since their arrival in Australia. The relevant findings made by the IRT in Cabal's case were stated as follows: "An impressive range of witnesses have provided evidence in support of the Applicant. It is clear that she is regarded by members of the school and wider community as a devoted mother. Despite the fact that she and her husband and children have been living under assumed names they have apparently been forgiven by their friends and acquaintances for that deception and I have been told by people who are experienced in character judgement that the Applicant is unlikely to do anything to jeopardise her children's well being and can be expected to comply with conditions. Against this is the evidence that since first applying to come to Australia on a visitor visa the Applicant has lied to Australian immigration authorities. I accept that this deception may have been instigated by her husband but the Applicant participated in it by signing at least one form under a false name and travelling on false documents and, in effect, condoning his behaviour. Her children have also been presented to Australian immigration officers under false names and, as she has care and control of the children, this has been done with her knowledge. I have considered whether she would regularly report and keep Australian immigration authorities advised of her whereabouts. By her own admission she has not decided whether she and the children would accompany her husband back to Mexico if he is extradited. She says the children like Australia and would like to remain. They also like their schools and would like to continue to attend them and their mother says she would like that stability for her children's development. There is obviously support for this choice within the school communities. I also accept that the Applicant may have less incentive to flee now her husband has been caught. However her evidence is that she has access to money from her family. She also has a history of disappearing from authorities. The children would obviously benefit from having their mother with them: they are currently being supervised by a nanny who has been with them 12 years and their uncle. The issue before me is whether their mother will abide by conditions and it is the effect the children will have in influencing their mother's compliance that is relevant to my decision. On the balance of the evidence before me I am not satisfied that the Applicant would abide by conditions. She is a person who has consciously deceived Australian authorities for the benefit of herself and her family. I am not satisfied that she is a person who can be trusted to abide by the laws of Australia and follow any or all conditions I impose on a bridging visa. Having made this decision it is unnecessary for me to consider the issue of a surety. DECISION The Tribunal affirms the decision under review refusing to grant the Applicant a Bridging E (Class WE) Subclass 050 (Bridging visa (General))." (Emphasis added) The relevant findings made by the IRT in Karras' case were stated as follows: "I would have to impose conditions on a bridging visa if I were to grant it. The Applicant's past dealings with immigration authorities indicate that conditions 8101 (no work), 8401 (regular reporting), 8506 (notification to the Department of change of address) and 8507 (paying the costs of detention) are appropriate conditions to impose. I have to decide whether the Applicant would abide by those conditions. In deciding this I weigh the evidence of the Applicant's past against her present statements and the statements of those who have known her over in the last year and a half. Impressive witnesses have provided evidence in support of the Applicant. It is clear that she is well regarded by members of her community and is a devout and caring person. Despite the fact that she and her husband have been living under assumed names they have apparently been forgiven by their friends and acquaintances for that deception and I have been told that the Applicant can be expected to comply with conditions. Against this is the evidence that since first applying to come to Australia the Applicant has lied to Australian immigration authorities by travelling here on a false passport with a visa issued in a false name. I accept that this deception may have been instigated by her husband but the Applicant participated in it and condoned his behaviour. I have considered whether she would regularly report and keep Australian immigration authorities advised of her whereabouts. She has a strong incentive to remain in Melbourne to be near her husband and to return to Mexico if he is extradited. She also wants to complete her studies in Melbourne. There is support for her doing this from her friends and parish. I accept that she may have less incentive to flee now her husband has been caught. However her evidence is that she has access to money and she has a history of disappearing from authorities. On the balance of the evidence before me I am not satisfied that the Applicant would abide by conditions. She is a person who has consciously deceived Australian authorities for the benefit of herself and her family. I am not satisfied that she can be trusted to abide by Australian immigration law and follow any or all conditions I impose on a bridging visa. Having made this decision it is unnecessary for me to consider the issue of a surety. DECISION The Tribunal affirms the decision under review refusing to grant the Applicant a Bridging E (Class WE) Subclass 050 (Bridging visa (General))." (Emphasis added)

Grounds of Review Ultimately, the decisions of the IRT were attacked by senior counsel for the applicants on three main grounds. The first was that the IRT failed to apply itself to the question which the law prescribes. The second is that the IRT failed to apply the correct test. The third was that the reasons and findings of the IRT failed to satisfy the requirements of s 368(1) of the Act.

Did the IRT address the correct question? Regulation 050.213 states that the decision maker is to be: "…satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it." The question the IRT was required to address was whether it was satisfied that if the Bridging E visas were granted the applicants will abide by the conditions which the IRT would impose. In examining that question it was incumbent on the IRT to determine the conditions it would impose and then address the question of whether it was satisfied that the applicants would abide those conditions. If the IRT was not so satisfied in respect of any of the conditions, it was obliged to affirm the decision refusing to grant Bridging E visas. The IRT concluded in both cases that it was not satisfied that each applicant would abide "by conditions". The IRT found that as each applicant had consciously deceived Australian authorities in the past for the benefit of herself and her family, neither applicant could be trusted to abide by the relevant Australian law and "follow any or all conditions" which the IRT imposes on a bridging visa. On one view the conclusion of the IRT suggests it was directing its attention to whether the applicant was a person who would abide by conditions rather than to whether the applicant will abide by the four conditions the IRT would impose if the Bridging E visa was granted. The four conditions, which relate to significantly different subject matters were, not working (8401), paying detention costs (8507) and reporting to the Department (8401 and 8506). In determining whether each of the applicants would abide by these conditions one would expect that the differing subject matters would require consideration of different issues of fact. Yet, the IRT adopted a broad approach; it concluded that the applicants' past history in relation to their dealing with the Australian authorities was one of "conscious deception" and that as a consequence, they were not persons who could be trusted to abide by, or follow any or all, conditions that the IRT imposes on a bridging visa. Notwithstanding the apparent generality of the IRT's conclusions, it is appears to have treated as the real issue of fact whether the applicants were likely to flee or abscond. Obviously, the past flight of the applicants and their deception of authorities were relevant to that issue. However, the applicants present circumstances have changed significantly. Their past flight and deception were related to the quest of both families to avoid detection by the Mexican authorities. Anonymity, assumed names and deception were integral elements of that quest. That situation had been brought to an end by the detection of Cabal's husband and Karras' partner who were being held in detention pending extradition proceedings. Surprisingly, the IRT appeared to give little weight to the significantly changed circumstances now confronting Cabal and Karras. But weight is a matter for the IRT. The issue for the Court under this ground of challenge is whether the IRT applied itself to the correct legal questions. In approaching that issue I bear in mind the caveat in the majority judgment of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. "…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." Thus, the Court is not to construe the reasons minutely with an eye keenly attuned to the perception of error, nor is the Court to be concerned with looseness in language or unhappy phrasing: see Wu Shan Liang at 272 approving Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. The IRT correctly stated that the question for it to decide was whether the applicants would abide by the conditions it would impose if the visas were to be granted. It then proceeded to discuss the evidence which was directed at, and logically probative of, the answer to that question. In doing so the IRT appeared to be weighing up considerations which were relevant to determining the question that it had posed for itself. What is troubling about the reasons is that when the IRT finally came to stating its conclusion, it did not do so in a manner which referred expressly, or implicitly, to any of the four conditions. In Cabal's decision the IRT restated the issue as whether Cabal: "…will abide by conditions." In answering that question the IRT said that it was not satisfied that Cabal would: "…abide by conditions." Similar, but not identical, statements were made in Karras' decision. Senior counsel for the Minister said that the reference to "conditions" was clearly intended to be to the conditions which the IRT indicated it would impose. Support for that view is found later in the conclusion where the IRT stated that it was not satisfied that either applicant could be trusted to abide by relevant Australian law and: "…follow any or all conditions I impose on a Bridging visa." In my view the passages to which I have referred, even when considered in context, are ambiguous. The Court's task is to ascertain whether the IRT applied itself to the question prescribed by law by a fair reading of the reasons read as a whole. In considering that issue it is important to consider the nature of the decision made by the IRT. In Wu Shan Liang at 274-276 Brennan CJ, Toohey, McHugh and Gummow JJ considered the subjective nature of a decision as to "satisfaction". In the present context, such a decision is not a determination of whether the applicant will abide by the conditions imposed, rather, it is a decision as to satisfaction regarding whether the applicants will abide by the conditions imposed. The distinction is significant in a case such as the present, as it requires the decision maker to be positively satisfied as to a future event and also that that state of satisfaction be that the future event will occur. Thus, if the decision maker is uncertain as to whether the event will occur, the requisite state of satisfaction will not have been achieved. It follows from the foregoing that, contrary to the applicants' submissions, the IRT is not to lean in favour of release. I would add, nor is it to lean against release. What is required is a determination as to its satisfaction, or the absence thereof, depending on the facts of the particular case. Facts as to past events are obviously of critical importance in deciding whether the requisite state of satisfaction has been achieved. In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed that: "The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity." A fair reading of the findings of the IRT in the present case demonstrates that, implicitly rather than explicitly, the issue upon which the decision turned was whether the IRT was satisfied that the applicants would not again flee and take on assumed or false names and identities as they had done in the past. In that regard, the changed circumstances of each applicant was a critical matter. Obviously, there was far less prospect or likelihood of either applicant fleeing and again taking on an assumed name now that the reason for her having done so in the past was no longer applicable. As pointed out above, surprisingly, this factor was not given great weight by the IRT. However, the weight to be given to such a consideration is a matter for the arbiter of fact; giving too little or too much weight to a relevant consideration does not, as such, constitute an error of law. A number of criticisms were made as to past and future matters in relation to which it is said the IRT failed to make findings. In particular, it is said that the IRT failed to undertake an informed prediction about the future based on past events and the present circumstances of each applicant. If the criticisms are soundly based it would afford support for the submission that the IRT did not address the issue of compliance with the four conditions. However, I am of the view that the criticism is not soundly based. It does not follow that failure to refer to particular aspects of a case means that the tribunal has failed to consider that aspect: see Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J. The IRT was conscious that its decision required an evaluation of past events in order to determine whether it had reached the requisite state of satisfaction. A fair reading of the reasons demonstrates that the IRT accepted, or did not reject, the thrust of the evidence put on behalf of each applicant in support of her case that she would abide by the conditions the IRT imposed. However, it is clear that the applicants' past deception of the authorities weighed heavily in the IRT's mind and, as a consequence, the IRT was not satisfied, despite changed circumstances, that the applicants would not do so again in the future. That was the essence of the decision made in each case. The conclusion of the IRT in those terms was implicit, rather than explicit. There can be little doubt that the conclusion was open to the IRT on the material before it. I am satisfied that a fair reading of the reasons demonstrates that the IRT addressed the question it posed as the issue for it to resolve, being whether the applicants would abide by the conditions it imposed.

Did the IRT apply the wrong test? The second criticism of the IRT's decision was that it applied a test that was too onerous and therefore was not warranted by the regulation. Senior counsel for the applicants could not point to any statement in the reasons that supported his criticism. Ultimately, he submitted that the case of the applicants was so compelling that it could only have been rejected by the application of a standard which was too onerous and therefore not warranted in law. In my view, whilst there might be some force in senior counsel's submission, the evaluation and assessment of the matters to which he referred was for the Tribunal rather than the Court. I am not satisfied that the IRT erred in law by the application of a wrong standard in the evaluation and assessment it made. As pointed out above, the IRT was not engaged in determining whether the applicants would abide by the relevant conditions; rather, its task was to determine whether it was satisfied that they will abide by the conditions. In addressing the issue of satisfaction the IRT did not apply a wrong test or standard; it reached the conclusion that on the basis of the evidence and material before it, it did not have the requisite state of satisfaction.

Did the IRT comply with s 368(1)? The final ground put forward by the applicants for challenging the decisions was that the IRT failed to set out the reasons for the decisions, the findings on material questions of fact and did not refer to the evidence or any other material on which the findings of fact were based: see s 368(1). The applicants set out a number of considerations in respect of which the findings were said not to have been made. It is to be borne in mind that a primary function of reasons is the disclosure of the tribunal's reasoning process in making the decision at which it arrived so as to enable an understanding of the basis upon which the decision was made: see Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88 and Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR 465 at 483. Findings of fact and the evidence upon which those findings are based assist in the disclosure of the reasoning and the issues on which the case turned. Further, as was said by Sackville J in Naveed Anjum v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Sackville J, 17 December 1998) at 11 the standard required in respect of reasons is not one of perfection; rather it is enough that the findings and reasons deal with the substantial issues on which the case turns. See also Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414-416 per Sackville J. In my view the IRT disclosed its reasoning process, the findings of fact and the evidence upon which those findings are based in relation to the issue on which the matters before it turned. The thrust of the IRT's reasoning was that the impressive witnesses and evidence adduced in support of the case for a Bridging E visa was not sufficient to overcome the concerns of the IRT as to the conscious deception of Australian authorities by each applicant in the past. It was that fact, rather than the rejection of any particular aspect of the evidence of applicants' witnesses or evidence, that resulted in the IRT failing to achieve the requisite state of satisfaction. Thus, the IRT disclosed the basis upon which it had failed to reach the requisite state of satisfaction and adequately stated its reasons and findings for doing so as well as the evidence upon which the findings were based. I am not satisfied that there has been non compliance with s 368(1).

Conclusion In the present matters the jurisdiction the Court has been asked to exercise under Pt 8 of the Act is limited to review of decisions of the IRT on errors of law rather than review on the merits. As I pointed out in the course of submissions, many of the points raised by the applicants appear to seek impermissible review on the merits. In so far as the submissions raised questions of law, I am not satisfied that the IRT erred in law in arriving at its decisions. Accordingly, each of the applications is to be dismissed with costs. However, I do have some disquiet as to the decisions ultimately arrived at by the IRT. I have indicated in the course of my reasons that the great weight given by the IRT to the conscious deception by the applicants of Australian authorities in the past was surprising given the significantly changed circumstances that now prevail in respect of each applicant. The IRT had regard to a document of the Department of Immigration and Multicultural Affairs entitled "Migration Series Instruction" which was identified as "MSI No 207". The document sets out guidelines in relation to decisions required to be made under the Act and the Migration Regulations. In the present context, as was identified by the IRT, the guideline was that decision makers: "should have regard to the applicant's immigration history and any past dealings with the Department." Government policy and guidelines are matters to which an administrative tribunal may have regard and apply. The particular regard to be had, and the weight to be given, to the policy and guidelines is a matter for the tribunal: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FCR 409 at 419-422; Steed v Minister for Immigration and Ethnic Affairs at 621 and Betkoshabeh v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 95 at 98-99. Accordingly, it was for the IRT to determine the relevance and weight to be given to "immigration history". The relevance of "immigration history" was not in dispute but the weight to be given to it must depend upon the circumstances of the particular case. The applicants did not pursue their initial challenge to the IRT's application of policy. However, it would be unfortunate if decision makers construed the instruction as requiring them to have regard to "immigration history" in all cases and in doing so, possibly, give that issue greater weight than might be warranted in a particular case. This issue could be of particular concern in relation to on-shore refugee claims where it is not unusual for the claimant to have engaged in some form of deception to enter Australia in order to become an on-shore claimant for refugee status. I also have some concern over the IRT's approach to security for compliance with conditions that may be imposed pursuant to s 269 of the Act and reg 050.214. The IRT stated that as a result of its decision "it is unnecessary" to consider the issue of "a surety". However, the issue of a surety, which is one aspect of security, whilst probably not a condition as such (see Sch 8, reg 050.213 cf s 269 and reg 050.214), is plainly related to the issue of compliance. If security is to be required that will be a factor, among others, that would be weighed up in the balance by the IRT in determining whether it is satisfied that the conditions it imposes will be complied with by the applicants. As this issue was not a ground of review or raised in submissions it is appropriate that I do no more than draw the parties attention to it and its potential relevance if a further application is made for a Bridging E visa. The final reason for my disquiet is that although I have concluded that the decisions in question did not involve error of law, I am far from satisfied that they have resulted in a just outcome. The consequence of each decision is that, subject to any further application for a Bridging E visa, each applicant remains in detention pending resolution of her application for a protection visa which might take some time. In Cabal's case, that means she has been, and might for some time, remain separated from her four young children who are aged between 7 and 14. Although Karras does not have any children, she has been prevented from completing her studies. It hardly needs to be said that the detention has deprived each applicant of her freedom in circumstances where neither is said to pose any threat or risk to the Australian community or be the subject of any allegations of having committed offences in Mexico or Australia. In each case, the IRT gave no real reason other than past deception to support its implicit conclusion of a real present risk of further flight. Whilst I have some doubt as to the justification for the IRT's conclusion, as I have already observed, it is not the role of the Court under the Act to engage in a merits review which would have been

necessary if the decisions in the present cases were to be set aside. In the result it is only the legality, rather than the justice, of the IRT's decisions that have been upheld by the Court. I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel

Counsel for the Applicant: Mr K Bell QC with Ms D Mortimer

Solicitor for the Applicant: Erskine Rodan & Associates

Counsel for the Respondent: Mr C Gunst QC with Mr S McLeish

Solicitor for the Respondent: Australian Government Solicitor

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