Su v Minister for Immigration & Multicultural & Indigenous Affairs

(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law… This could include, but need not be limited to… breaches of immigration law;

(b) whether the non citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement.' 20 Part 2 of Direction No 21 then deals with the exercise of the discretion. Paragraph 2.1 provides as follows: '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. … 2.2 The government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, the decision-maker should have regard to three primary considerations and a number of other considerations… Decision-makers must have due regard to the importance placed by the Government on the three primary conditions, but should also adopt a balancing process which takes into account all relevant considerations.' 21 Direction No 21 then sets out the three primary considerations as follows: '(a) The protection of the Australian community and members of the community.

(b) The expectations of the Australian community; and

(c) In all cases 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.' Direction No 21 then sets out in more detail the matters to be considered in relation to those three primary considerations. 22 Clause 2.12, dealing with the expectations of the Australian community, provides as follows: 'The Australian community expects non-citizens to obey Australian laws while they are in Australia. Where a non citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or the offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision makers should have due regard to the Government's view in this respect.' 23 Direction No 21 then deals with the best interests of the child. It is significant that there is no reference under the heading, 'Expectations of the Australian community' to the best interests of the child. 24 Finally, Direction No 21 sets out other considerations, beyond the three primary considerations. Clause 2.17 of Direction No. 21 relevantly provides as follows: 'When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations.' A number of considerations are then set out, including the following: '(c) The degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens).' 25 It is against the background of those provisions that the reasons and findings of the Administrative Appeals Tribunal need to be considered. Under the heading 'Protection of the Australian Community', the Administrative Appeals Tribunal said that the first factor to be considered was the seriousness and nature of Mr Zhang's conduct. The Administrative Appeals Tribunal found that Mr Zhang's repeated and continuing breaches of the Act were very serious. 26 The Administrative Appeals Tribunal considered the risk of recidivism and dealt with the argument that, if a visa were granted, there would be no risk that Mr Zhang's conduct would be repeated because there would be no occasion for it. The Administrative Appeals Tribunal observed that, while it might be true that Mr Zhang, in that event, would have what he wanted and lied for all along, that could hardly be a satisfactory answer, quite apart from the tacit premise that all is well if the offender has succeeded in profiting from his own wrong. 27 The Administrative Appeals Tribunal found that there was no evidence of rehabilitation and considered that there was a real risk of further fraudulent dealings with Australian governments or private bodies on the part of Mr Zhang. The Tribunal concluded that, to grant a visa to a person such as Mr Zhang, who had admitted such a wide range of seriously fraudulent actions, would send entirely the wrong message to others who might be contemplating such conduct. 28 Under the heading, 'Expectations of the Australian Community', the Tribunal referred to the terms of clause 2.12 of Direction No. 21 already cited. The Tribunal then went on to say as follows: 'In my view the community expects that the migration program will be administered in a just and humane manner. That implies that applicants who honestly comply with the law should be preferred over those who do not, and applicants who resort to serious fraud, overstaying or illegal working should not succeed unless there are powerful humanitarian or other reasons pointing in the contrary direction. In this case, I believe the community would expect that a visa would not be granted. It was argued that the community expectations would not overwhelmingly oppose the grant of a visa, because of the presence of an Australian citizen child in this case. That may be so, but I remain of the view that the egregious behaviour of Mr Zhang would be viewed as disqualifying him from favourable consideration. The interests of the child are discussed separately below.' 29 The Administrative Appeals Tribunal then examined the position of the appellant's daughter, under the heading 'Best Interests of the Child'. The Administrative Appeals Tribunal observed that the daughter was, until recently, living in China with Mr Zhang and his family, to enable the appellant to look for work in Australia. The Administrative Appeals Tribunal considered that, in the ordinary course, the daughter's best interests would be served by her being with both her parents, but that, if that was not possible, her best interests at such a young age would be for her to reside with her mother. The Administrative Appeals Tribunal observed that, if a visa were to be refused, arranging for the daughter to be brought up by both her parents would mean the appellant moving to China, where she and Mr Zhang would probably live, at least initially, with Mr Zhang's parents. 30 The Administrative Appeals Tribunal referred to the education systems in China and Australia, and to the availability of medical facilities in both countries. The Administrative Appeals Tribunal concluded by noting the correctness of the proposition that the daughter has the right, as an Australian citizen, to live in Australia if she so chooses. However, the Administrative Appeals Tribunal considered that, until the daughter is able to take care of herself, she could have a reasonable upbringing and education with both her parents in China. She would then have the benefit of being with her father's family. While the process of relocation would cause some discomfort, the hardship effects would be very limited having regard to the daughter's age. The Administrative Appeals Tribunal concluded, overall, that the grant of a visa to Mr Zhang would be in the best interests of his daughter, as it would enable her to live in Australia, her country of citizenship, with both parents. 31 The Administrative Appeals Tribunal then had regard to other considerations, as contemplated by clause 2.17 of Direction No 21. It observed that the other considerations included:

• the extent of disruption that the visa refusal would cause to the non-citizen's family;
• genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen's character was a concern at the time of entering into the relationship;
• the degree of hardship caused to immediate family members;
• family composition of the non-citizen's family both in Australia and overseas;
• any evidence of rehabilitation and any recent good conduct; and
• whether the application was for a temporary visa or permanent visa. 32 The Administrative Appeals Tribunal said as follows: '[The solicitor for the appellant] stressed the hardship that separation from her husband is causing to Ms Su. In his report dated 17 May 2004, Mr Wilson Wong, a clinical psychologist, diagnosed her as suffering from "a mild depression reacting to the fact that her own family were separated" and noted her view that the former would only be mended by her being reunited with her husband in Australia. [The solicitor] also pointed out that a recent certificate supplied by her general practitioner does not use the word "mild". As against that, Ms Su knew at the very least that Mr Zhang was in Australia on a bogus Thai passport and a falsely procured visa two weeks after first meeting him. Her evasive and non-credible answers to questions on that subject at the hearing suggest that she knew and understood a great deal more than that and that she married him aware that he might not be able to live in Australia. In Re Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 the applicant, Mrs Lachmaiya, was older and in a much more precarious state of health than Ms Su in this case, suffering from physical ailments as well as severe depression that had caused her to be hospitalised several times. McMahon DP considered that her distress and hardship had to be set against the fact that she knew about some of her husband's wrongdoing and in particular his use of a false passport before the marriage.' 33 The Tribunal concluded that, on balancing all the factors, the protection and expectations of the Australian community outweighed the best interests of the daughter and the other considerations in the case. 34 The appellant relies essentially on three grounds of appeal, although their formulation in the notice of appeal filed on 21 February 2005 is not entirely consistent with the way in which the grounds were argued.

IRRELEVANT CONSIDERATION 35 The first ground is essentially that the Administrative Appeals Tribunal took account of an irrelevant consideration in determining the character of Mr Zhang. Under the heading 'Application of the Law and Findings of Fact', the Administrative Appeals Tribunal noted that the first issue was whether, pursuant to s 501(6)(c)(ii) of the Act, Mr Zhang passed the character test having regard to his past and present general conduct. 36 The Administrative Appeals Tribunal observed that, before making a decision on that question it was appropriate to set out findings of fact on the issue. After referring to its conclusions that Mr Zhang obtained a fraudulent passport and visa by means of a corrupt payment, and was knowingly involved with a person engaged in organised crime, the Administrative Appeals Tribunal made the following observation: 'In addition, he gave false information to the department in connection with his spouse visa application. In his interview on 2 July 2003 he denied owning the four wheel drive vehicle shown in the photograph… saying that it belonged to a friend named Jim, and also said that the house in front of which the vehicle was standing belonged to Jim. Both those statements were false, as the vehicle belonged to Mr Zhang and the house was where he lived with Ms Su. He also denied having any relations in Australia when actually he had a paternal uncle here. He later explained the uncle was not an Australian citizen and he did not want to get him into trouble. Finally, his evidence before the Tribunal was evasive and his frequent claims of ignorance were not credible. I therefore find that Mr Zhang does not pass the statutory test in s 501.' The appellant contends, in essence, that the Administrative Appeals Tribunal, in having regard to those false statements by Mr Zhang, had regard to statements that were not false or misleading in a material particular. 37 Under s 234(1)(b) a person shall not in connexion with an application for a visa make a statement that, to the person's knowledge, is false or misleading in a material particular. A penalty is imposed for contravention of that prohibition. The appellant's argument was in some way directed to the proposition that the Administrative Appeals Tribunal took into account an irrelevant consideration in determining whether Mr Zhang passed the character test, because it had regard to false statements, which he made in connection with his visa application, that were not false or misleading in a material particular. The short answer to that contention is that there is no prohibition in Direction Number 21 on having regard to such conduct. 38 The argument was put in a slightly different way as well. It was said that the Administrative Appeals Tribunal failed to consider the relationship between section 234 and section 499. Direction No 21 does not purport to limit the decision-maker to consideration of the matters that are expressly referred to in clause 1.9. Clause 1.9 expressly says that the matters that could be taken into account could include, but need not be limited to, breaches of immigration law. Whether or not Mr Zhang committed an offence in making the false statements is not to the point. 39 In any event, there is a very strong basis for concluding that there was a contravention of s 234. A statement will be false or misleading in a material particular if it is relevant to the purpose for which it is made. A statement will be relevant to that purpose if it may, whether or not it must, be taken into account in making a decision under the Act as to the grant of a visa. One of the requirements to be taken into account in assessing the bona fides of a marriage are the financial aspects of the relationship, including any joint ownership of real estate or major assets. The Minister's department was entitled to have accurate information from Mr Zhang concerning the motor vehicle and his relations in Australia. I do not consider there is any substance at all in this ground.

DENIAL OF PROCEDURAL FAIRNESS 40 The second ground concerns the observations made by the Tribunal in relation to the expectations of the Australian community. The contention on behalf of Mr Zhang is that the Administrative Appeals Tribunal should have had regard to what the Australian community would expect of someone in the position of Mr Zhang having a daughter in the circumstances of his daughter. The contention was that the failure to do so was a denial of procedural fairness. 41 I am at a loss to understand how it could possibly be characterised in that way. It was quite clear from the language of the Administrative Appeals Tribunal, which I have already cited, that this argument had been advanced on behalf of Mr Zhang; he clearly had an opportunity to deal with it. The argument is misconceived. If Direction No 21 required that, in assessing expectations of the Australian community, the involvement of an Australian-citizen child was relevant, the failure to have regard to that may be an error. However, Direction No 21 does not require the involvement of an Australian-citizen child to be taken into account, in relation to the expectations of the Australian community. 42 There are three, separate, primary considerations. The expectations of the Australian community and the best interests of the child are separate considerations, albeit ones that must be balanced against each other. The Tribunal made it quite clear, in the passage that I have cited, that it intended to deal with the best interests of the daughter, which it proceeded to do. I do not consider that there is any substance in this ground. 43 The third ground concerns the other considerations taken into account by the Administrative Appeals Tribunal and, in particular, the consideration of the medical condition of the appellant. The contention is that the Administrative Appeals Tribunal denied the appellant procedural fairness and failed to provide her with a fair hearing because it misconceived the nature of the medical evidence before it. The contention was that the Administrative Appeals Tribunal failed to take into account true facts that were relevant to the decision and which could materially affect the Minister's decision; see Liu v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340 at [4] and [5]. 44 In the course of the hearing, two psychological reports by Mr Wilson Wong, a clinical psychologist, were tendered on behalf of the appellant. One is dated 17 May 2004 and the other is dated 3 October 2004. In the passage that I have cited above, the Administrative Appeals Tribunal referred to the first but not to the second. The two reports are substantially very similar, the only difference being that the second report includes three additional paragraphs and a slightly different conclusion. The conclusion of the report of 17 May 2004 was as follows: 'Ms Su was suffering from a mild depression reacting to the fact that her own family were separated, as she had described that she was left here in Australia without a husband and her daughter and without her father. She would like to put the welfare of her daughter first, which means that she had to face the financial difficulties and the shamefulness of depending on her parents. Going back to China was not an option for her, for the social environment and the financial difficulties, which would not be a place suitable for her daughter to grow up in. Her trauma of having her family being torn apart would only be mended, as she expressed, by having her husband being allowed to reunion with her and her daughter in Australia.' 45 On 16 August 2004, the appellant presented to the emergency department at Auburn Hospital. The presenting problem was sudden difficulty breathing, heaviness across the chest, palpitations and a dry mouth. The resident medical officer prepared a report which said, relevantly, as follows: 'The diagnosis was anxiety... impression was that of panic attack. She was discharged with advice to rest. Advised to return should symptoms return.' 46 In his second report, Mr Wong referred to that incident in the following terms: 'Lately, on 16/8/2004,she was so anxious that she had a panic attack, in which she experienced breathless, palpitations, angina and intensive fear. She needed medication to help her settle. This condition continues to torture her. From the conditions that she had described, it was concordance with the diagnosis, which was given to her at the Emergency Department of Auburn Hospital; she was suffering from anxiety disorder with intensive panic and depressive features. It might also be concluded that the causative factors were her separation from her daughter and husband, in which she was not coping with the psychological stress and social stress, as previously described.' 47 The conclusion in the second report was identical to the conclusion of the first report, except that, for the words 'a mild depression', the following words were substituted 'anxiety disorder with depressive and intensive fear features'. 48 It seems likely, having regard to the terms of the passage from the Administrative Appeals Tribunal's reasons that I have cited, that the Administrative Appeals Tribunal did not have specific regard to the second report. The Tribunal quoted verbatim from the first report, including the words that were changed in the second report. On the other hand, the Tribunal also referred to a recent medical certificate which is dated 13 January 2005. While that medical certificate would bear little weight, the Tribunal observed that the description 'anxiety disorder' without the qualification 'mild', appears in the medical certificate. The medical certificate also indicates that the appellant is taking medication for her condition. 49 The question is, assuming that the Tribunal overlooked the second report, whether such oversight constitutes a jurisdictional error. There is, of course, no requirement for a decision maker to refer to all of the evidence before it. Mr Wong was not cross-examined, although the circumstances as to why are slightly unclear. It is quite clear that when the reports were tendered on 22 November 2004, the Tribunal's attention was drawn to the fact that there were, in fact, two reports. In referring to the second report, the following observation was made by the solicitor for the appellant: 'The latest report simply expands upon his earlier one and gives a more up to date view of the situation.' There was then a comment made about the circumstances in which Mr Wong was not available for cross-examination. 50 In ordinary circumstances, it would be unlikely that the Administrative Appeals Tribunal, in those circumstances, ignored the second report, when making a decision within a matter of weeks after the report was tendered and accepted into evidence. On the other hand, as I have said, the express reference to the language of the first report gives rise to a concern that the second report was not specifically considered by the Administrative Appeals Tribunal. It seems clear enough that in the second report, Mr Wong was having regard to the report of the resident medical officer of Auburn Hospital of 16 August 2004. 51 The language that is used is reminiscent of the language of that report. However, it is also significant that, in its reasons, the Administrative Appeals Tribunal referred to the certificate from the appellant's general practitioner, which described her condition as 'anxiety disorder', an expression that appears in the conclusion of Mr Wong's second report. The reasoning in the passage that I have cited indicates the Administrative Appeals Tribunal was gauging the relevance of the appellant's condition by reference to the findings made in the Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148. The Administrative Appeals Tribunal referred to the fact that in that case, Mrs Lachmaiya was older, and in a much more precarious state of health than the appellant, suffering from physical ailments, as well as severe depression that caused her to be hospitalised several times. It was not suggested that such a test was a wrong approach on the part of the Administrative Appeals Tribunal. The contention was that the Administrative Appeals Tribunal assessed the appellant's condition in applying such a test by reference to only part of the evidence. 52 It is not the function of this Court to make a different finding of fact from tat of the Administrative Appeals Tribunal. However, it is the function of the Court to determine whether the Tribunal's omitted reference to the second report constitutes jurisdictional error. I do not consider that the differences in the two reports are sufficiently significant to reach the conclusion that the express reference to the second report could have had an effect on the Tribunal's decision. 53 The Tribunal considered that it was significant that the appellant was well aware that Mr Zhang was in Australia on a bogus passport and had falsely procured a visa. Even if one had regard to the material contained in the second report, the appellant's condition would not be seen to be any worse than that of Mrs Lachmaiya in the case cited by the Tribunal. I do not consider that the failure to have regard to the second report in the circumstances was an error on the part of the Administrative Appeals Tribunal that goes to the exercise of its jurisdiction. It follows, in my opinion, that the third ground is not made out. 54 The consequence is that the appeal should be dismissed. 55 Section 474 of the Act provides that a privative clause decision is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called into question in any Court. It is not subject to prohibition, mandamus injunction, declaration, or certiori in any Court on any account. A privative clause decision is, under section 474, a decision of an administrative character made under the Act. 56 A decision purportedly made under the Act, which is affected by jurisdictional error, is not a privative clause decision. I have concluded that the decision of the Tribunal is not affected by jurisdictional error. I consider, in fact, that it is a privative clause decision. It follows that the Court has no jurisdiction to entertain this appeal. The order of the Court should therefore be that the appeal be dismissed for want of jurisdiction. 57 The Minister asks for her costs of the proceeding. Nothing has been said in opposition to that order. The Minister asks for an assessment of a fixed sum. In the absence of any evidence as to the costs, and since the appellant is not in a position to consent or otherwise, I do not consider it is appropriate in this case to make such an order.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Solicitor for the Respondent: Australian Government Solicitor