//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2008] FCAFC 101
Federal Court of Australia (Full Court)
2008-06-06
Buchanan JJ, Lander JJ
Original judgment source is linked above.
REASONS FOR JUDGMENT MARSHALL AND LANDER JJ 1 This is an appeal from orders made on 7 December 2007 by a judge of this Court dismissing an appeal from the Administrative Appeals Tribunal (AAT) and dismissing an application for judicial review of a decision of 10 August 2007 made by the AAT and ordering the appellant to pay the first respondent's costs. 2 On 10 August 2007 the AAT had affirmed a decision of a delegate of the first respondent refusing the grant of a Combined Partner (Provisional) (Class UF), Subclass 309 Spouse (Provisional) visa and Partner (Migrant) (Class BC) visa (Spousal visa) to the appellant's wife. 3 The appellant's wife, Ms Han Fen Shi was born on 23 February 1964 in the Peoples Republic of China and is a citizen of that country. She married and divorced in China. 4 On 11 November 2002, on her application, she was granted a Subclass 456 (Business (Short Stay)) visa allowing her to enter Australia. 5 After she arrived in Australia on 23 November 2002, she lodged an application for a Protection (Class XA) visa on 17 December 2002. On 6 February 2003 a delegate of the Minister refused that application. On 26 February 2003 she applied to the Refugee Review Tribunal (RRT) for a review of the Minister's delegate's decision. On 25 September 2003 the RRT affirmed the Minister's delegate's decision to refuse Ms Shi a Protection (Class XA) visa. 6 In the meantime, on 20 April 2003, she met the appellant and in around July or August 2003 entered into cohabitation with him. On 4 November 2003, following the RRT's decision and her Bridging visa E expiring, Ms Shi became an unlawful non-citizen. 7 On 8 January 2004 she married the appellant. The next day, after having voluntarily approached the Department, she was granted a Bridging visa E on departure grounds. Ms Shi and the appellant departed for China on 14 January 2004. 8 Before leaving Australia the appellant completed a "Sponsorship for a partner to migrate to Australia" form to which he attached statutory declarations by supporting witnesses. Ms Shi also completed an "Application for migration to Australia by a partner" form for a Combined Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) visa which was lodged on 24 October 2005. 9 On 9 May 2006 Ms Shi was interviewed at the Australian Consulate General in Guangzhou. 10 On 30 November 2006 the Minister's delegate refused the grant of a Spousal visa to Ms Shi on the ground that she failed to pass the character test. It is not necessary, for the purpose of this appeal, to examine the facts and circumstances upon which the delegate relied for that finding. 11 The AAT reached the same decision in its review. It found that there were a number of inconsistencies, evasions and improbabilities in Ms Shi's written and oral evidence. 12 More particularly, the AAT found: ... that the visa applicant has committed breaches of immigration law and has made false or misleading statements in connection with visa applications within the meaning of paragraph 1.9 of Direction No 21. She knowingly supplied false documents in support of her business visa application in Beijing and falsely represented that she intended to come to Australia only for the purpose of a short business visit. Shortly after her arrival, she made a protection visa application relying on wholly fabricated grounds and maintained those grounds in her appeal to the RRT. She made a false statement and a misleading material omission in her spouse visa application and provided false information at her interview in Shanghai (sic) on 9 May 2006. At that interview she did admit that her previous answers had been false, but only after the searching nature of the questioning made it obvious that it would be difficult or impossible to maintain the lie. 13 For those reasons, the AAT affirmed the decision of the delegate that Ms Shi's application for a Spousal visa should be refused on the ground that she failed the character test. 14 On 6 September 2007 the appellant filed a notice of appeal in this Court from the decision of the AAT identifying three questions of law in the notice of appeal. 15 On 8 November 2007 the appellant filed an amended application pursuant to s 476A of the Migration Act 1958 (Cth) and s 39B of the Judiciary Act 1903 (Cth) for the issue of the constitutional writs to quash the decision made by the AAT on 10 August 2007. 16 On 7 December 2007 the primary judge heard the application and, as we have mentioned above, made an order dismissing it. He also dismissed the notice of appeal. He made the consequential costs order. On this appeal the appellant seeks an order that the orders made by the primary judge be set aside and in lieu thereof that the constitutional writs issue to quash the decision of the AAT and for an order directing the AAT to rehear the matter according to law. 17 It is not entirely clear from the form of the notice of appeal whether the appellant seeks an order setting aside the order made by the primary judge dismissing the notice of appeal or whether the appellant simply seeks an order setting aside the order made by the primary judge dismissing the application for judicial review. 18 It would not be appropriate, of course, to allow the appellant to maintain both processes at the one time. It may be that the primary judge should have called upon the appellant to elect as to which process the appellant wished to pursue and to have dismissed the other process. In the end, not much turns upon that because no point was taken by the first respondent in relation to that at the hearing before the primary judge. 19 The appellant sought judicial review of the decision of the AAT on two grounds. First, that the appellant was denied procedural fairness by the AAT having regard to information in articles, books, research papers and documents for affirming the decision under review. In particular, it is complained that the AAT made reference to five publications, two of which were cited in a decision of the AAT in Re Howard and Minister for Immigration and Multicultural Affairs [2006] AATA 474 at [104] and three of which were cited in decisions of the AAT in Re Sorensen and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 96 at [29] and Re Azar and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1061 at [37]. 20 Secondly, the appellant relied on the ground that the AAT took into account an irrelevant consideration, being the delegate's opinion that: ... a significant proportion of Chinese applicants for protection visas marry Australian citizens before they depart Australia, apply for spouse migration, and if successful later divorce their Australian sponsor and "reconcile" with their Chinese sponsor who they then sponsor themselves. 21 The AAT referred to Re Howard [2006] AATA 474 in its reasons for decision in this matter. At [104] of Re Howard [2006] AATA 474 two publications referred to above are mentioned. Moreover, at [104]-[105] in Re Howard [2006] AATA 474, previous decisions of the AAT, namely Re Sorensen [2006] AATA 96 and Re Azar [2005] AATA 1061 are mentioned. The three further texts referred to in the application for judicial review are found in those decisions. 22 The Deputy President who made the decision complained of was also the member of the AAT in each of those three previous decisions. In the decision complained of, which is the subject matter of this appeal, the Deputy President said at [98]: Evidence of the role of the migrant community networks and the operation of deterrence was referred to in Re Howard and Minister for Immigration and Multicultural Affairs [2006] AATA 474 at paras 104-105. 23 There is no further reference in the decision complained of to Re Howard [2006] AATA 474, nor is there any reference to the texts which are referred to in Re Howard [2006] AATA 474 at [104], or to the decisions in Re Sorensen [2006] AATA 96 and Re Azar [2005] AATA 1061 (which are also referred to in Re Howard [2006] AATA 474 at [104]), or to the texts referred to in Re Sorensen [2006] AATA 96 or Re Azar [2005] AATA 1061. 24 The primary judge dismissed this ground for a number of reasons. First, because his Honour found that no denial of procedural fairness was made out simply because a decision-maker refers to evidence given in other proceedings in which he has been involved. Secondly, his Honour was of the opinion that the claim of a denial of procedural fairness was in this case no more than a request to be involved in the reasoning process of the decision-maker. Thirdly, his Honour was of the view that the material which has been identified was not relied upon by the Deputy President for the purposes of the decision which is now sought to be impugned. 25 The second ground was dismissed by the primary judge for the reason that the AAT did not accept the delegate's comments or rely upon them for the purpose of its decision. 26 Three grounds of appeal are raised in an amended notice of appeal. The first and third are the grounds relied upon before the Federal Magistrate. The second is that: 2. His Honour erred in applying the common law test to determine the requirements of procedural fairness in relation to the [articles, books, research paper and documents] instead of the test provided by s 39(1) of the AAT Act. 27 It was not contended by counsel who appeared before the primary judge that he should determine the question of procedural fairness by reference to s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and not by reference to common law principles. The matter was argued by reference to common law principles. In those circumstances, it is inappropriate to claim that the primary judge erred in proceeding in the manner he did. 28 The appellant in the end result did not press ground 2 of the amended notice of appeal. However, the appellant pressed the first ground by reference to s 39(1) of the AAT Act.
Ground 1 - Failing to advise the appellant of materials to which the AAT had regard 29 The first ground, in general terms, is that the Deputy President should not have had regard to the materials to which reference has been made without first having given the appellant notice. 30 Section 39(1) of the AAT Act provides: (1) … the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents. 31 The appellant contended that the test of "proposes to have regard" does not mean decisive reliance. The appellant contended that this Court should follow the decision of Sackville J in O'Sullivan v Repatriation Commission (2003) 74 ALD 407, who said at [45]: The first part of s 39(1) of the AAT Act has been said to be a statutory recognition of an obligation which the law would imply in any event: Sullivan v Department of Transport, at ALD 402; ALR 342. The second part (relating to the AAT's obligation to ensure that a party has an opportunity to inspect documents to which regard might be had), depending on the circumstances, might go further. In any event, it reflects a clear statutory policy that a party should have an opportunity of inspecting documents that may play a part in the AAT reaching a decision and should also have the opportunity to make submissions on those documents. 32 The appellant also relied upon two articles to which the primary judge had referred to in his reasons. The first was by H Katzen, "Procedural Fairness and Specialist Members of the Administrative Appeals Tribunal" (1995) 2 Australian Journal of Administrative Law 169, and the appellant drew particular attention to the author's statement at 175: When a member positively seeks out information relevant to the issue, whether it be from an expert in the area or from written research material, the content and source of the material must be disclosed to the parties to give them the opportunity to respond to the matter. A failure to disclose this knowledge to the parties constitutes a denial of procedural fairness as the parties are denied an opportunity to be heard in respect of the evidence. 33 The appellant also relied upon an article by Professor J A Smillie, "The Problem of 'Official Notice': Reliance by Administrative Tribunals on the Personal Knowledge of their Members" [1975] Public Law 64. In that article, Professor Smillie said at 70-71: Where an adjudicator proposes to rely upon his knowledge of facts which are capable of being attributed to specific identifiable sources, those facts should be disclosed to the parties for comment and rebuttal regardless of the purpose for which they are to be used. Where specific factual knowledge of this kind is relied upon it should be immaterial for purpose of disclosure whether the knowledge leads the tribunal to reject evidence which was not challenged at the hearing, or whether it merely provides a basis for a choice between two conflicting and evenly balanced lines of evidence. In both cases reliance on such facts will involve the introduction of new matters which the parties could not reasonably have been expected to anticipate; it will not be difficult for the tribunal to communicate such details to the parties; and because the sources of the tribunal's knowledge can be clearly identified the parties may be able to prove that the tribunal's information is inaccurate, or argue persuasively that the information is not properly applicable to the present case. 34 The injunction in s 39(1) of the AAT Act requires the AAT to allow a party to the proceeding before the AAT to inspect any documents and to make submissions in relation to those documents to which the AAT proposes to have regard in reaching a decision. To attract the obligation in s 39(1) two things must be apparent. First, the documents must be relevant. Secondly, the AAT must be proposing to have regard to the documents for the purpose of reaching a decision in the proceeding. 35 It was contended by the first respondent that these are not the type of documents to which Sackville J or Ms Katzen or Professor Smillie were referring in their respective decision and works for the purposes of reaching a decision. 36 The Deputy President in this case was considering the question of deterrence and, in particular, general deterrence. He said, prior to making the statement in [98]: 96. … It is true that the deterrent effect of a particular decision is impossible to prove in advance. The concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community. 97. According to the delegate, Mr Heath, there are specific reasons for thinking that decisions in cases such as the present one may have incentive effects one way or the other. He notes that the Chinese community in Australia is relatively close-knit, with its own ethnic associations, newspapers and community networks, and the outcome of decisions such as this one are passed around within segments of the community and also between some unscrupulous migration agents. 37 He then continued at [102]: Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long term effects of their decisions, not merely the short-term results. While visa refusal is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does. That includes deterring the use of corrupt agents who are prepared to lodge fraudulent applications. Granting a visa in the present case would send entirely the wrong message to those contemplating acts violating Australian migration law. 38 In our opinion, the Deputy President's reasons do not show that he had regard to the texts and publications identified in Re Howard [2006] AATA 474 in reaching a decision on the issue of deterrence. 39 At [97] he recounted what the delegate had said in his reasons for refusing the grant of a Spousal visa to the appellant's wife. He does not, in our opinion, adopt those reasons. All he says at [98] is that evidence of the role of migrant community networks and the operation of general deterrence was considered in the earlier decision. He does not thereby adopt the evidence or the conclusions reached in that decision. He is simply recording the fact that evidence of the kind was given at the hearing. 40 The aspect of general deterrence that the Deputy President thought important was referred to at [102]. Granting a visa to the appellant's wife would send the wrong message to those who should be deterred, namely, corrupt agents. He makes no finding whatsoever in relation to the delegate's observations set out at [97]. The evidence referred to at [98] only related to that matter. 41 In our opinion, the texts and publications referred to in Re Howard [2006] AATA 474 and in the previous decisions did not play any part in the Deputy President reaching his decision in this matter. In those circumstances, the Deputy President was not under an obligation to bring those texts to the attention of the appellant so that the appellant might inspect the documents or make submissions on them. 42 The primary judge said at [7] in a statement which we agree: A fair and balanced reading of the Tribunal decision reveals either that the Tribunal was distinguishing previous decisions or applying the Ministerial Direction to which it must have regard. That reasoning on the part of the Tribunal reinforces a conclusion that the Tribunal was focusing attention upon the facts of the present case. Whatever may have been the evidence in other proceedings in which the Tribunal member was involved, and whatever may have been the "experience" of the delegate which he had brought to bear when making his present decision, the Tribunal was confining its attention to those aspects of deterrence relevant to the decision presently under review. 43 In our opinion, it cannot be said that the Deputy President, by referring to a previous decision, thereby failed to comply with s 39(1) of the AAT Act. 44 In this case, the appellant is not entitled to complain about the use which the AAT made of its previous decisions. The Deputy President in this case merely referred to a previous decision of the AAT. There is nothing to suggest that he thereby relied upon the two texts which were cited in that previous decision to which he referred. As mentioned, that decision in turn cited two other previous decisions, which in turn cited three further texts. There is nothing to suggest the Deputy President relied on any of the three further texts cited in those two decisions. There was no denial of procedural fairness because there is nothing in the Deputy President's reasons to suggest that the Deputy President had regard to any of the five texts cited in the three previous decisions.
Ground 3 - Taking into account an irrelevant consideration 45 The Deputy President identified the reasoning process of the delegate. First, he referred to the delegate referring to the effects of decisions in migrant communities. It was in that regard that he referred to Re Howard [2006] AATA 474. 46 The Deputy President, referring again to the delegate, then said: 99. Mr Heath continues: ... The use of PV applications based on false protection claims by Chinese and certain other nationals to extend their stay in Australia for reasons other than a genuine need for Australia's protection is a systemic problem at present. Current statistics indicate that the highest number of PV applications currently being lodged are made by Chinese nationals, many based on false or frivolous claims. ... My experience and analysis of these cases indicates that after exhausting their attempts to remain in Australia a significant proportion of those taking this path marry Australian citizens before they depart Australia, apply for spouse migration, and if successful, later divorce their Australian sponsor and "reconcile" with their former Chinese spouse who they then sponsor themselves. This is not uncommon pattern. In saying this, I also note ... that Ms Shi's former husband and her adult son were granted spouse migration visas for Australia in 2005, sponsored by another person. Whether her former husband also took the "well trodden path" is not within the scope of this decision. 47 We make no comment on the appropriateness of the delegate's remarks. The question is whether in fact the Deputy President took those remarks into account in consideration of the facts of the matter before him. In fact, he did not and that is clear from his reasons. He said: 100. Whilst Mr Heath's conclusions have a relevance to the issue of general deterrence, I do not suggest that the scenario he describes as typical is on all fours with the present case. 48 When the Deputy President was considering other matters, he assumed the genuineness of the marriage of the appellant and his wife: [109]. More particularly, he said that the appellant's commitment to his wife was genuine. It is clear that, contrary to the way in which the delegate reasoned, the Deputy President assumed that the relationship between the appellant and his wife was a genuine one and so was their marriage. 49 It was contended that the Deputy President should not have had regard to the matters in [99] in considering general deterrence. It was further contended that as the appellant's wife was not a person of the kind described in [97], it was not a relevant matter in considering general deterrence. Notwithstanding that the Deputy President found that the appellant's wife was not one of the persons referred to in that paragraph, the matters in [97] were still relevant in a consideration of general deterrence because the persons there referred to were persons who needed to be deterred. Once it is accepted that the refusal to grant a visa or the cancellation of a visa might deter others from making false claims and enter into sham marriages, then those matters are relevant. Direction No 21 makes the assumption that visa refusal or cancellation may prevent or discourage similar conduct: 2.5(c). Indeed, it is described as an important factor in decisions of this kind in that it might deter persons from committing similar offences or engaging in similar schemes. The Deputy President was entitled to proceed upon the basis that persons who might otherwise engage in the conduct referred to in [97] may be deterred by a refusal to grant a visa to a person "who has engaged in … consistent and sustained abuse of the migration system." In those circumstances, taking into account the delegate's reasons as an aspect of general deterrence was not to take into account an irrelevant consideration. 50 For those reasons, the appeal must be dismissed. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall and Lander.
NEW SOUTH WALES DISTRICT REGISTRY NSD 2539 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
REASONS FOR JUDGMENT BUCHANAN J: 51 This appeal concerns the refusal of a spouse visa to Mr Scorgie's wife, Ms Shi Han Fen, for the reason that she was not of good character. That conclusion was reached primarily because she provided false information to the immigration authorities on a number of occasions. 52 On 29 October 2002 Ms Shi lodged an application for a short stay business visa at the Australian Embassy in Beijing. She submitted falsified documents; namely a false business card, false business certificate and false employment statement. In an interview with a Departmental officer in Guangzhou on 9 May 2006 Ms Shi admitted to knowingly obtaining a business visa with fraudulent documents. 53 After her arrival in Australia, Ms Shi lodged an application for a protection visa on 17 December 2002. Despite the fact that her application for a protection visa was rejected Ms Shi remained unlawfully in Australia between 4 November 2003 and 14 January 2004. In the interview on 9 May 2006, referred to earlier, she stated, contrary to the claims in her application for a protection visa, that she had not previously had any problems with the Chinese authorities and that her life in China was uneventful prior to her departure to Australia. 54 Ms Shi met Mr Scorgie in Sydney in April 2003. They commenced to live together on 15 August 2003 and were married in Sydney on 8 January 2004. Ms Shi's application for a spouse visa was made on 9 January 2004. Inevitably, her illegal presence in Australia had to be resolved. Ms Shi and Mr Scorgie left Australia together on 14 January 2004. 55 On 12 September 2006 Ms Shi was notified of an intention to refuse her visa. Her husband responded to the notice on her behalf on 10 October 2006 by email. A further notice was sent to Ms Shi on 7 November 2006. She advised on 17 November 2006 that she did not wish to provide a further response. On 28 November 2006 a delegate of the Minister decided to refuse Ms Shi's visa application. On 14 December 2006 Mr Scorgie lodged an application to the Administrative Appeals Tribunal ('the AAT') challenging the decision of the delegate. 56 Ms Shi did not deny submitting fraudulent documents or giving incorrect information or lodging a protection visa application without grounds. She formally accepted her responsibility in that regard and expressed her regret. It was contended that in all the circumstances she should be found to be of good character or, alternatively, a discretion should be exercised not to refuse a visa. 57 The decision of the AAT on 10 August 2007 was that the delegate's decision should be affirmed. The AAT found that there were 'a number of inconsistencies, evasions and improbabilities in the visa applicant's written and oral evidence'. The AAT made the following findings: 79. I find that the visa applicant has committed breaches of immigration law and has made false or misleading statements in connection with visa applications within the meaning of paragraph 1.9 of Direction No 21. She knowingly supplied false documents in support of her business visa application in Beijing and falsely represented that she intended to come to Australia only for the purpose of a short business visit. Shortly after her arrival, she made a protection visa application relying on wholly fabricated grounds and maintained those grounds in her appeal to the RRT. She made a false statement and a misleading material omission in her spouse visaapplication and provided false information at her interview in Shanghai on 9 May 2006. At that interview she did admit that her previous answers had been false, but only after the searching nature of the questioning made it obvious that it would be difficult or impossible to maintain the lie. 80. Even so, after saying "I don't want to lie" and admitting that she had not worked for the furniture company, she went on to provide yet another false version, saying that a friend of hers had asked her to go to Australia for business purposes in his place. She did depart voluntarily from Australia in January 2004, but only after exhausting the other possibilities for remaining in Australia and at a time that was convenient to her after marrying Mr Scorgie, when she knew she had little choice but to depart in order to apply for a further visa. 81. She claims to have been the victim of corrupt agents at all stages, from the business visa application to the protection visa application to the RRT appeal. But as Deputy President Purvis pointed out in the analogous case Re Grech and Minister for Immigration and Multicultural Affairs [2001] AATA 22, at para 52, the applications were made by the visa applicant, she was a party to the making of the false submissions and maintained their falsity through the various stages that she sought to pursue. It is not open to her to claim ignorance of the position that she was maintaining. 82. In any event, her attempts to portray herself as an ingénue who fell victim to a corrupt agent are unconvincing. At the time she applied for the business visa, Ms Shi was aged 38 and had been earning her living as a travelling saleswoman in medicinal products. She undoubtedly knew the ways of the world and when she paid out $10,000 to a corrupt agent in order to obtain the business visa in Beijing, it was probably because she believed she was unlikely to receive a tourist visa. She thus knew that the business visa application was based on false documents and misrepresentations aimed at securing a migration outcome. 83. She claims that once in Australia she did not intentionally employ an agent who would help her to make false claims, but her prior and subsequent conduct make that unlikely. It is more probable, as the delegate thought, that she sought a migration agent who would be prepared to lodge false or frivolous visa applications. 84. In cases such as this, applicants not infrequently offer evidence that they have duly paid income tax while working in Australia, in support of their claims to be of good character. In this instance, there is no evidence that Ms Shi ever paid income tax or that she had a tax file number, although the spouse visa application form invited her to supply that kind of number. Her implausible attempts to deny ever having worked in Australia at all may have been designed to forestall such a line of inquiry. 85. There is no evidence of recent good conduct indicating that her character may have reformed, and indeed her attempts to mislead the tribunal in her evidence at the hearing suggest the contrary. Her expressions of regret must therefore be viewed as largely tactical. Subject to what I have said about tax, there is no evidence that the visa applicant has committed any other types of offences in Australia. But her record of migration law violations is serious in itself, and the applicant's character in a migration sense is central to these proceedings. There is no evidence of mitigating factors. 86. On the basis of all the evidence I find that the visa applicant does not pass the character test by reason of her past and present general conduct. 58 The AAT went on to consider whether to exercise a discretion not to refuse the grant of the visa sought. Amongst the observations made about that issue were the following: 91. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(c) that offences against the Act, including "making a false or misleading statement in connection with entry or stay in Australia", are to be treated as very serious. In this case, the visa applicant has tendered false documents and made multiple false or misleading statements in connection with entry or stay in Australia. She continued to do so in her evidence at the hearing. It is clear that the visa applicant is a person who will say or sign anything in order to obtain a benefit. In my view her conduct must be viewed as very serious. … 102. … Granting a visa in the present case would send entirely the wrong message to those contemplating acts violating Australian migration law. … 107. In my view, the community expects that the migration program will be administered in such a manner as to favour those who obey the law rather than those who seek to subvert it. This application, like all such cases, must be decided on its own facts. On the evidence in the present case, I consider that community expectations weigh against the grant of a visa to the visa applicant who has engaged in such consistent and sustained abuse of the migration system. … 114. If the decision under review is affirmed, Mr Scorgie will thus suffer some hardship if he continues to live in China, which he no longer finds particularly congenial. He is likely to miss his Australian family, as they will him, but reciprocal visits will remain possible. 115. Ms Shi has no business or other economic interests in Australia. As was noted above, there is no evidence of recent rehabilitation, and indeed the facts point in the opposite direction. 116. The other considerations do, however, weigh in favour of granting a visa in this case. While paragraph 2.17 of Direction No 21 states that other considerations are generally to be given less individual weight than the primary considerations, I do not exclude the possibility that there can be exceptions in strong cases. In the present case, however, the primary considerations of community protection and expectations outweigh the other considerations. 117. The decision under review is affirmed.' 59 Mr Scorgie on 6 September 2007 filed an appeal to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'). An appeal from the decision of the AAT is limited by statute to a challenge on legal grounds. Mr Scorgie also invoked s 39B of the Judiciary Act 1903 and sought judicial review of the AAT decision on the basis of alleged jurisdictional error by the AAT. It was alleged that the AAT had failed to accord procedural fairness to 'the applicant', had taken into account irrelevant considerations and failed to take into account relevant considerations. 60 At the hearing before the primary judge no submissions were addressed to the appeal. Attention was given instead to the jurisdictional challenges. Mr Scorgie's jurisdictional challenges were dismissed by the primary judge on 7 December 2007 (Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046). He observed that no argument had been addressed to the notice of appeal but that it would in any event have been dismissed for non-compliance with Order 53 rule 3(2) of the Federal Court Rules (which deals with what a notice of such an appeal must state). 61 In accordance with s 499 of the Migration Act 1958 (Cth) the AAT was obliged to assess Mr Scorgie's application to it in accordance with a 'Direction' issued by the Minister for Immigration and Citizenship - Direction No 21. Relevantly for the purpose of the present appeal the following instructions appear in Direction No 21: 2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia. … 2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all case 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. … 2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include: … (c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence). … 2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways: (a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and … 62 The contentions on the present appeal were that the AAT had, in various ways, committed jurisdictional error when addressing the question of general deterrence and that the primary judge had erred in failing to accept that such errors had occurred. 63 The challenges made in the present appeal to the findings of the primary judge and the decision of the AAT turn on the following passages in the decision of the AAT: 96. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. It is true that the deterrent effect of a particular decision is impossible to prove in advance. The concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community. 97. According to the delegate, Mr Heath, there are specific reasons for thinking that decisions in cases such as the present one may have incentive effects one way or the other. He notes that the Chinese community in Australia is relatively close-knit with its own ethnic associations, newspapers and community networks, and the outcome of decisions such as this one are passed around within segments of the community and also between some unscrupulous migration agents. 98. Evidence of the role of migrant community networks in the operation of deterrence was referred to in Re Howard and Minister for Immigration and Multicultural Affairs [2006] AATA 474 at paras 104-105. 99. Mr Heath continues: … The use of PV applications based on false protection claims by Chinese and certain other nationals to extend their stay in Australia for reasons other than a genuine need for Australia's protection is a systemic problem at present. Current statistics indicate that the highest numbers of PV applications currently being lodged are made by Chinese nationals, many based on false or frivolous claims. … My experience and analysis of these cases indicates that after exhausting their attempts to remain in Australia a significant proportion of those taking this path marry Australian citizens before they depart Australia, apply for spouse migration, and if successful, later divorce their Australian sponsor and "reconcile" with their former Chinese spouse who they then sponsor themselves. This is a not uncommon pattern. In saying this, I also note … that Ms Shi's former husband and her adult son were granted spouse migration visas for Australia in 2005, sponsored by another person. Whether her former husband also took the "well trodden path" is not within the scope of this decision". … 100. While Mr Heath's conclusions have a relevance to the issue of general deterrence, I do not suggest that the scenario he describes as typical is on all fours with the present case. 101. It may also be noted that Deputy President Wright in Re Barattini and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 157 dismissed the contention that other intended visa applicants are unlikely to be deterred by refusing a visa in such cases: … It is often submitted to me that intending visa applicants are unlikely to become aware of the outcome and the reasons for such an outcome in an individual case because media exposure is not accorded to any, save high profile applicants, and in any event confidentiality orders sometimes apply. I do not accept such arguments. If a consistent approach is manifested by the Tribunal in such cases, migration agents and solicitors will soon pass the news on to their customers or clients, and I suspect the ethnic grapevines serve a similar purpose. … 102. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa refusal is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does. That includes deterring the use of corrupt agents who are prepared to lodge fraudulent applications. Granting a visa in the present case would send entirely the wrong message to those contemplating acts violating Australian migration law. (Emphasis added.) 64 On the present appeal it was argued that paragraph 98 of the decision of the AAT disclosed a failure to comply with the provisions of s 39(1) of the AAT Act. Section 39(1) of the AAT Act provides: (1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents. 65 This argument was not put to the primary judge. Instead Mr Scorgie's counsel before the primary judge relied on general principles of procedural fairness. However, it is not necessary in the present case to explore the potential for any difference because the primary judge accepted, both in principle and in substance, the existence of the obligation identified in the AAT Act. 66 The other contention, which was advanced both before the primary judge and on the present appeal was that paragraph 100 of the decision of the AAT revealed that the AAT took account of an irrelevant consideration. 67 When dealing with the challenge concerning the alleged denial of procedural fairness the primary judge said, amongst other things, the following: 7. No denial of procedural fairness is made out simply because a decision-maker refers to evidence given in other proceedings in which he has been involved. A denial of procedural fairness may be made out if, for example, a decision-maker goes beyond simply referring to evidence in other proceedings and seeks to rely upon such evidence or conclusions previously reached without affording an affected party an opportunity to make submissions. But that is not the present case. A fair and balanced reading of the Tribunal decision reveals either that the Tribunal was distinguishing previous decisions or applying the Ministerial Direction to which it must have regard. That reasoning on the part of the Tribunal reinforces a conclusion that the Tribunal was focusing attention upon the facts of the present case. Whatever may have been the evidence in other proceedings in which the Tribunal member was involved, and whatever may have been the "experience" of the delegate which he had brought to bear when making his present decision, the Tribunal was confining its attention to those aspects of deterrence relevant to the decision presently under review. … 9. Second, and in the absence of the Tribunal relying upon evidence provided in other proceedings, the present allegation of a denial of procedural fairness is in substance a request to be involved in the evolving reasoning processes of a decision-maker. It is a request to have an opportunity to comment upon how the Tribunal is approaching the issues the subject of decision. There was no requirement imposed upon the Tribunal to disclose to the Applicant the particular decisions of either the Tribunal or the Courts upon which it was proposing to rely in its reasoning process in order to afford the Applicant a further opportunity to make submissions as to why those decisions were to be distinguished. … 12. In the present proceedings, the "evidence" referred to in the earlier decision of the Tribunal was not evidence personal to the present Applicant. It was more in the nature of accumulated knowledge or expertise and, to the extent that reference was made to that earlier knowledge or experience, it was referred to in a context where the Tribunal member was giving background to the incorporation of "deterrence" as part of Direction No 21. That direction was very much to the fore of the parties' consideration and was a matter in respect to which submissions were advanced. VEAL should not be construed as imposing any general requirement upon an administrator to disclose or comment upon all prior facts and knowledge of which he may be aware by reason of his having been involved in earlier cases. … 15. Difficult questions have arisen in circumstances where it is the accumulated expertise and skill of a Member which is being brought to bear upon a particular decision-making process. The present case is simpler. It is a clear submission by the Applicant that identifiable material has been relied upon but not disclosed. That case is largely answered by the conclusion that the identifiable material or publications have not been relied upon and that the decision of the Tribunal under appeal has been based upon facts disclosed to and debated by the parties. In the present case the opportunity to make submissions was extended to both parties and submissions made accordingly. 16. This ground of review is thus to be dismissed. 68 In order to appreciate the full dimension of the appellant's contention about paragraph 98 of the AAT decision it is necessary to trace further the reference contained within it. Re Howard and Minister for Immigration and Multicultural Affairs [2006] AATA 474 ('Howard') was a decision of the same member of the AAT. In it the AAT said (at [104]-[105]): 104. In some earlier decisions it has been noted that research has shown that in emigrant societies such as the Philippines, there are communication networks conveying information about green cards, work permits, visas and other requirements for settling in the usual host countries (Re Sorensen and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 96 para 29; Re Azar and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1061 para 37; see also P Martin, M Abella, C Kuptsch, Managing Labor Migration in the Twenty-First Century, Yale University Press, London 2006 pp 7, 11; D Massey, J Arango, G Hugo, A Kouaouci, A Pellegrino, J Taylor, Worlds in Motion; Understanding International Migration at the End of the Millennium, Clarendon Press, Oxford 2005 pp 42-46, 186-193). Because the flow of information is away from the host country, we tend not to see it. 105. The Philippines has provided many migrants to Australia. As the evidence in this case shows, there is in that country an industry (see Massey et al, supra p61) that assists other Philippine residents to follow in their footsteps, if necessary by means of bogus passports and other documents. Visa refusal in this case could well become known in that quarter through the operation of such a network and might tend to undermine any belief that Australian migration law can be flouted with impunity. 69 Re Sorensen and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 96 ('Sorensen') and Re Azar and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1061 ('Azar') were also decisions of the same member of the AAT. In Sorensen the AAT said (at [29]): 29. She obtained her Thai passport through the passport office in Bangkok, but made no attempt to approach the Australian embassy to seek a visa, even though she was living in Bangkok at the time. No explanation was offered for that course of action, yet some explanation is called for as to why a person from a family all the members of which had been educated to university level, and who herself had completed eight years of part-time university education, would apply for a visa through an unknown clothing seller from a street market. In emigrant societies such as Thailand, there are said to be strong communication networks conveying information about green cards, work permits, visas and other requirements for settling in the usual host countries (see Re Azar and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1061 para 37; P. Winters, A de Janvry, E. Sadoulet, "Family and Community Networks in Mexico - US Migration", No 99-12, Working Paper Series in Agricultural and Resource Economics, University of New England, Armidale, N.S.W., August 1999, 14-16; I. Light, P. Bachu, S. Karageorgis, "Immigrant Networks and Entrepreneurship", in I. Light, P. Bachu eds, Immigration and Entrepreneurship, Transaction Books, New Brunswick 1993). Quite apart from that, as an educated young woman of 29 with business experience, Ms Wanwongka must have been more aware than most people of immigration requirements and practices, including the existence of people smuggling. That she chose to apply for a visa in that irregular manner rather than directly approaching the embassy suggests that she was aware that her application was not proceeding through the proper and lawful channels. and in Azar the AAT said (at [37]): 37. The operation of general deterrence cannot be disregarded in such cases, however, and it is likely that refusing the applicant a visa would have some deterrent value for young people who might otherwise be tempted to follow in his footsteps. Recent social science research on immigration patterns and mechanisms suggests that deterrent pressures can actually filter back to immigrant countries of origin in a manner that had not previously been appreciated. Dr Philip Martin of the University of California at Davis has described how that process can occur through networks, informal channels of communication that transport money and information from the host country to the country of origin. As the direction of the flow is away from the host country, such as Australia, we tend not to see it. But that counterflow stimulates interest in immigration issues and transmits relevant signals about such matters as whether a host country seriously enforces its immigration and deportation laws (see e.g. P Martin, Promise Unfulfilled: Unions, Immigration and Farm Workers, Cornell University Press 2003, Ch. 1). 70 The appellant's contention was that the five articles referred to in these three decisions were 'documents' within the meaning of s 39 of the AAT Act which should have been made available for inspection. 71 For a time I was attracted to this argument. My concern was that paragraph 98 contained a conclusion based on the earlier 'evidence' about the role and impact of migrant community networks. In particular I was troubled by the possibility that the AAT had incorporated, by paragraph 98 of the decision, some form of private research and based factual findings upon it about 'the role of migrant community networks' without the appellant in the present case having an opportunity to answer or distinguish the underlying foundation for the conclusions expressed in the three earlier decisions. The primary judge was also clearly alive to the potential for unfairness in such a circumstance as paragraph 7 of his judgment set out above reveals. 72 If paragraph 98 is not read to involve some form of conclusion it is difficult to make much sense of it. On the other hand, the observations in paragraph 98 are made in the course of a general discussion about views expressed by the Minister's delegate, and another member of the AAT, concerning the possibility, or likelihood, that decisions in individual cases have a potential effect on the conduct of other visa applicants. That discussion (including the remarks in paragraph 98) does not appear to produce a conclusion relevant to the present case. In the end the discussion produces a conclusion (expressed in paragraph 102) consistent with a principle (distilled in paragraph 96) (both of which I emphasised in the quoted passages) that does not depend on a finding about 'the role of migrant community networks' in relation to Chinese immigrants or immigrants from any other country. Rather, the AAT addressed the question of deterrence at a very general level, and in the context of Ms Shi's attempts to mislead the immigration authorities. Viewed in that way, paragraph 98 of the AAT decision does not identify, or incorporate by reference (even extended reference), 'documents to which the Tribunal proposes to have regard in making a decision'. 73 In the circumstances, although not without some hesitation and reservations, I have concluded on balance that the AAT did not deny the appellant procedural fairness in the way argued before the primary judge or fail to act in accordance with s 39(1) of the AAT Act in the way argued on the present appeal. 74 The appellant's contention that paragraph 100 of the AAT Decision shows that it took into account an irrelevant consideration also raises an issue of some difficulty. The primary judge (at [17]-[18]) set out paragraphs 96-99 (quoted above) and said: 17 … The taking into account of the experience that a significant number of Chinese Applicants for protection visas marry and later divorce is said to be an irrelevant consideration. 18 The Applicant asserts that the marriage in the present case is not one of a kind referred to by the delegate. So much may be accepted. The Tribunal in the very next paragraph of its reasons stated that "While Mr Heath's conclusions have a relevance to the issue of general deterrence I do not suggest that the scenario he describes as typical is on all fours with the present case." The Tribunal later accepted at para 109 that there was a "genuine marriage to an Australian citizen." The Tribunal further noted at para 112 that "his commitment to [his wife] is genuine." The reasons of the Tribunal simply recount the evidence being advanced before it and, for present purposes, the experience of the delegate. The Tribunal accepted the genuineness of the marriage. 19 No error is exposed with respect to this ground of appeal and it should be dismissed. 75 Direction No 21 requires attention to deterrence of 'similar conduct'. In a context where the AAT accepted the genuineness of the marriage between Mr Scorgie and Ms Shi there is a real question whether the delegate's remarks about the practice of other visa applicants could be relevant to any issue of general deterrence arising for consideration in Ms Shi's case. However, and again not without some reservations, I accept that the better view of paragraph 100 is that the AAT, in the circumstances of the present case, distinguished Ms Shi's circumstances from the concerns expressed by the delegate, and did not act on those concerns in relation to any question of general deterrence in Ms Shi's case. In the end, the question of general deterrence was addressed, as I said earlier, by way of a conclusion (in paragraph 102) that a principle (distilled in paragraph 96) was applicable in the context of demonstrated attempts to mislead the immigration authorities.
76 In the circumstances I agree that the appeal should be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.
Associate: Dated: 6 June 2008 Counsel for the Appellant: Mr J Gormly
Solicitor for the Appellant: AAT Legal Solicitors
Solicitor for the First Respondent: Clayton Utz Lawyers
Scorgie
Minister for Immigration and Citizenship