Xue v Minister for Immigration and Border Protection

1. Leave be granted to the appellants to amend the notice of appeal in the form attached to their written submissions on appeal.
2. The appeal be dismissed.
3. The Appellants pay the First Respondent's costs as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 The First Appellant is citizen of the People's Republic of China and arrived in Australia on 8 March 2014 on a class BC subclass 100 Partner visa. That visa was sponsored by Ms Li Na Yin who is the First Appellant's wife. The Second Appellant is the First Appellant's adult son. He received a visa as a member of the First Appellant's family unit. In 2016 the Department of Immigration and Border Protection became concerned that the First Appellant had failed to disclose some significant information in his original application for the partner visa. There were a number of aspects to this information but at its heart was the fact, which is not presently disputed, that the First Appellant had lived in Australia between 31 August 2005 and 21 June 2010 under a different name and had been deported after his attempts to secure a Protection visa failed. 2 The Department became aware of this information when the First Appellant applied for a drivers licence in New South Wales. The relevant agency, Roads and Maritime Services NSW, had conducted a visual identity check which had revealed the First Appellant's earlier identity and it had informed the Department of this fact. On 16 September 2016, a delegate of the Minister for Immigration and Border Protection (the 'Minister') had issued the First Appellant with a notice that the Minister was considering cancelling his visa and sought any comment he wished to make about that issue. The First Appellant provided a statutory declaration in response admitting the truth of what was alleged but submitting, in mitigation, that he had an established family in Australia which would be disrupted if his visa were now cancelled. The delegate was unmoved by this submission and cancelled the Appellants' visas on 8 November 2016. 3 The Appellants then sought a review before the Administrative Appeals Tribunal (the 'Later Tribunal') which conducted a hearing on 13 January 2017. During the course of the hearing the First Appellant gave evidence that he had begun his relationship with his current wife in 2006 or 2007 whilst he was previously in Australia. 4 The Later Tribunal observed that this evidence was inconsistent with other evidence he had given in a related proceeding. That related proceeding arose out of the application for the partner visa which he had made from China on 1 March 2011. That application had been initially refused by a delegate of the Minister on 31 August 2011 on the basis that the delegate was not satisfied that the relationship was genuine. An appeal to the Migration Review Tribunal (the 'Earlier Tribunal') had, however, succeeded. In the proceeding before the Earlier Tribunal, the First Appellant had given evidence (along with his wife) that they had first met online on 30 July 2010 and had then met in person for the first time on 1 December 2010 in Shanghai. This evidence was inconsistent with the evidence given in the Later Tribunal hearing that they had commenced their relationship in 2006 or 2007. 5 The Later Tribunal used this inconsistency to conclude that it undermined the First Appellant's credibility. In the events which occurred, the Later Tribunal affirmed the delegate's decision to cancel the First Appellant's partner visa. 6 The issue which now arises is whether in doing so the Later Tribunal complied with s 359AA of the Migration Act 1958 (Cth). This section provides: '359AA Information and invitation given orally by Tribunal while applicant appearing (1) If an applicant is appearing before the Tribunal because of an invitation under section 360: (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) if the Tribunal does so-the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information-adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. (2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).' 7 Where a Tribunal successfully utilises the procedure in s 359AA it operates to dispense the Tribunal from otherwise complying with the notification requirements of s 359A: s 359A(3). Those requirements are, in effect, that the Tribunal give an applicant in writing clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review and invite the applicant to comment or respond. 8 The issue thrown up by s 359AA(1) in this appeal is whether the Later Tribunal gave the First Appellant the 'clear particulars' referred to in s 359AA(1)(a) of the matter which it thought would be part of the reason for its affirming the decision under review. The relevant part of the Later Tribunal's reasoning was as follows: '20. The Tribunal referred to the proceedings before the Tribunal in respect of his appeal against the refusal of the Partner visa application. The Tribunal noted that he and the sponsor had claimed that they first met each other by chance online on 30 July 2010 and met each other in person for the first time in Shanghai on 1 December 2010 when the sponsor travelled to China. This was relevant as the applicant had said that he and his wife started living together in 2006 which was when they first met each other. This indicated that the applicant and his wife had provided false information to the Department and to the Tribunal in respect of the development of their relationship. This indicated that both he and his wife were willing to provide false information to the Tribunal in support of their application and that they had conspired together to provide this false information. This undermined the credibility of the information given by the applicant and also his wife.' 9 There is no doubt the Later Tribunal raised with the First Appellant at the hearing his evidence that he had begun his relationship with his current wife in 2006 or 2007 in Australia. This exchange occurred during the Later Tribunal hearing: 'The Tribunal: And when did you start your relationship with your wife? First Appellant: When I was in Australia, we know - I knew her already. The Tribunal: When did you start living with her? First Appellant: We lived together since 2006.' 10 Further exchanges revealed that the First Appellant was unsure of whether the relationship started in 2006 or 2007. The Tribunal then sought to tie the First Appellant to this evidence: 'The Tribunal: And you told me that you started the relationship in 2006 or 2007. First Appellant: Yes. The Tribunal: So what claims did you make when you were before the Tribunal? First Appellant: …. The Tribunal: Did you tell the truth when you were before the Tribunal at the start of your relationship? First Appellant: All true sir. The Tribunal: All true? First Appellant: Only the name is … was different, but all the truth. The Tribunal: So did you tell the Tribunal that you started the relationship in 2006 while you were living in Australia? First Appellant: Yes. The Tribunal: So everything you told the Tribunal during that hearing was the truth? First Appellant: Yes. All truth. The Tribunal: Are you sure about that? First Appellant: Yes.' 11 At this point, the Later Tribunal sought to enliven s 359AA in the following terms: 'The Tribunal: I will put information to you now which would be the reason or part of the reason for affirming the decision under review. I will tell you what that information is and why it is relevant. I will then invite you to comment or respond to that information. If you need more time to comment or respond to the information you can ask for an adjournment. I will then consider whether granting the adjournment is appropriate. In your application before the Tribunal it is important that you said that you claimed to have met online for the first time in 30 July 2010. You claim to have met in person for the first time in Shanghai on 1 December 2010 when your sponsor travelled to China. Your sponsor also provided consistent information to the claims that she made as to the start of your relationship. You provided extensive information about your life in China including living with your wife and separation from your wife. Ex-wife. This information was corroborated by your current wife. This information is relevant because it shows you had been lying to the Tribunal previously in relation to your partner visa application. And that you conspired with your current wife and other people to provide false information to the Tribunal and to the Department. This undermines the credibility of information to the Tribunal and to the Department. This undermines the credibility of information you were giving and also other witnesses in support of your application. It shows that you have conspired together to provide false information to the Department and to the Tribunal. Do you want to comment or respond to that information? Migration Agent: Can I seek a brief adjournment to talk to [the First Appellant].' (emphasis added) 12 It is apparent that the information which the Later Tribunal said that it was putting to the First Appellant was the information about what had been told to the Earlier Tribunal, that is to say, the commencement of the relationship in 2010. Section s 359AA required the Later Tribunal to ensure, as far as was reasonably practicable, that the First Appellant understood why that information - the information about having told the Earlier Tribunal that the relationship had begun in 2010 - was relevant to the review and the consequences of the information being relied on in affirming the delegate's decision. 13 Mr Johnson of counsel, who appeared for the Appellants, submitted that the explanation appearing in the italicised portion above did not do this and that passage could not be said to provide the 'clear particulars' called for by s 359AA(1)(a). In particular, he drew attention to the fact that the Later Tribunal questioned various other matters about the First Appellant's life and relationships during the hearing. In that context, he submitted that the Later Tribunal's reference to 'extensive information' was not sufficiently precise to notify the First Appellant that the Later Tribunal was relying upon his answers regarding the commencement of his relationship with his wife to question his credibility. 14 If attention were confined to that paragraph alone, I would incline to the view there was some force in the submission. However, in discerning whether the requisite clear particulars were given, one cannot ignore the context in which the Later Tribunal's statement appeared. As Logan J observed in Chen v Minister for Immigration and Citizenship [2013] FCA 1137; 218 FCR 561 at 567 [21], the dispensation in s 359AA is engaged where 'on a fair reading of the record of the whole of the proceedings at the hearing conducted by the Tribunal, it can be seen that, in substance, the requirements of s 359AA were observed'. It is thus relevant to ask whether the First Appellant appreciated what it was that the Later Tribunal was proposing to do: SZTNL v Minister for Immigration and Border Protection [2015] FCA 463; 231 FCR 204 at 217-218 [44]-[46]. That case was not concerned with s 359AA, which concerns oral notification in general migration cases, but instead with s 424A which deals with written notice in refugee cases. I do not think, however, that the difference between oral and written disclosure is material insofar as the question of how the issue of compliance with the provision is to be ascertained. In particular, the words in s 359AA(1)(b)(i) ('ensure, so far as is reasonably practicable, that the applicant understands why…') strongly point to the relevance of an applicant's understanding, which can hardly be limited to a single passage in the transcript. 15 The context in this appeal includes the Later Tribunal's interrogation of the First Appellant about the fact that he had told it that he had commenced his relationship with his wife in 2006. When therefore the Later Tribunal launched into its discussion of the evidence he had given to the Earlier Tribunal that they had met in 2010 there was no lack of clarity about where it was that the Later Tribunal was going with this line of questioning. Although the passage which the Appellants rely upon (italicised at [11] above) is a little unclear, the statements immediately preceding it ('it is important that you said that you claimed to have met online for the first time on 30 July 2010' and '[y]our sponsor also provided consistent information to the claims that she made as to the start of your relationship') clearly indicate that the Later Tribunal was concerned about inconsistent information regarding the commencement of the relationship. This is consistent with the exchanges that immediately preceded (set out at [10] above). 16 Further, there can be no doubt that the Appellants' migration agent well understood what was being put. This exchange occurred with the migration agent: 'The Tribunal: I don't need you to answer that question I have just put to you about the inconsistent information. I am giving your agent another seven days to provide some response to that. So you can provide a written response in that time. Migration Agent: Could I just ask you a question? If you are now going to speak to his wife and presumably put these matters to her is it then - am I then able to speak to his wife in relation to those matters? The Tribunal: Yeah, yeah that is what I was saying. We have lost the… I am still going to give him the opportunity to respond because I think it is relevant. To my mind in all these proceedings there has been what one might call a conspiracy to provide false information. Migration Agent: I understand and I take no issue with that. The Tribunal: And I am surprised that when I raised the fact he says that he never lied to the tribunal about it, that is obviously - I mean I have difficulty accepting that. It makes me question his credibility. Migration Agent: I appreciate that.' 17 This elicited a letter from the agent dated 19 July 2017: 'I refer to the question raised by the member and am instructed to respond as follows on behalf of the First Applicant (Xiong Zhong Xue) and his wife. 1. Acknowledging that they had not told the truth on the previous occasions, they did tell the truth to the RTA and, on this occasion, to this Tribunal. 2. In the visa application and in the last tribunal hearing they understood the answers that were required were in relation to Mr Xue and the name Xiong Zhong Xue. Although they were clearly wrong in this assumption, their actions and answers were given and done in accordance with their belief. 3. Mr Xue instructs me that if the government advises him of the amounts owing he will make arrangement to pay them. 4. If Mr Xue is forced to leave Australia the relationship will end as Ms Yin is not prepared to live in China. Further I am instructed that Mr Xue has threatened, should his visa be cancelled, to commit suicide. There is a child whose interests are affected by this decision and whose existence and interests were made known to the Tribunal at the hearing by her sister. The International Convention on the Rights of the Child, requires the best interests of the child to be a primary consideration. The International Covenant on Civil and Political Rights provides at Article 23(1): "the family is the natural and fundamental group unit of society and is entitled to protection by society and the State." If the tribunal is to have due regard to the Convention and the Covenant, it should, on balance, revoke the cancellation of the visas of the two applicants. Please contact me if you require anything further in this matter.' 18 Although the letter which was submitted on the Appellants' behalf perhaps did not really meet the Later Tribunal's concerns that is not because the agent did not understand the point. The Later Tribunal provided 'clear particulars' of the information within the meaning of s 359AA(1)(a) and ensured, so far as was reasonably practicable, that he understood why the information was relevant to the review and the consequences of it being relied upon in affirming the decision, within the meaning of s 359AA(1)(b)(i). 19 Finally, it is important to note that transcript extracted at paragraph [11] above and relied upon by the Appellants is a transcript of an oral hearing and must be read as such. Although this may involve some speculation, the choice of paragraph breaks during transcription may potentially have introduced ambiguity which may not necessarily have existed at the hearing. In this case, the various reference to 'information' by the Later Tribunal become somewhat clearer if the paragraph breaks are reorganised thus: 'In your application before the Tribunal it is important that you said that you claimed to have met online for the first time in 30 July 2010. You claim to have met in person for the first time in Shanghai on 1 December 2010 when your sponsor travelled to China. Your sponsor also provided consistent information to the claims that she made as to the start of your relationship. You provided extensive information about your life in China including living with your wife and separation from your wife. Ex-wife. This information was corroborated by your current wife. This information is relevant because it shows you had been lying to the Tribunal previously in relation to your partner visa application. And that you conspired with your current wife and other people to provide false information to the Tribunal and to the Department. This undermines the credibility of information to the Tribunal and to the Department. This undermines the credibility of information you were giving and also other witnesses in support of your application. It shows that you have conspired together to provide false information to the Department and to the Tribunal.' 20 The Appellants' appeal should therefore be rejected. The argument pursued on the appeal was not really pursued below although an argument related to it was. Nevertheless, I would grant the Appellants leave to amend their notice of appeal in the form attached to their written submissions on appeal. I would, however, dismiss that appeal with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.