Zhang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1051 (29 April 2021)

Should the residual discretion not to cancel the visas be exercised?

1. The Applicants' SFIC refers to Lu v Minister for Immigration & Multicultural & Indigenous Affairs[86] and the statement by Sackville J at [54] that:

It is true that the authorities have accepted that s 501 prescribes the failure to satisfy the character test as a condition precedent to the exercise of the discretion to cancel a visa and does not create a presumption as to how the discretion should be exercised: Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514; (2001) 65 ALD 667 at [10], per Dowsett J, cited with approval by Kiefel and Bennett JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 211 ALR 126 [72].

1. The Applicants argue that, by parity, even if a condition in s 134(1) is satisfied, there is no presumption that the cancellation power should be exercised in a particular way. While the Applicants' SFIC did not expressly identify the bases on which the Applicants say the discretion should be exercised, paras 33-37 make the following submission:
   1. As stated above there is a residual discretion not to cancel the visa.
   2. In the alternative, even if the above business activities are not enough to neutralise the condition precedent to the exercise of the visa cancellation, (which, of course is denied) then the residual discretion ought to be exercised not to cancel the visa.
   3. [The First Applicant] and his family have established a solid business base in Australia through the direct investment of almost $5 million.
   4. The Zhang family business activity will continue and there is a commitment to do so.
   5. [The First Applicant's] visa should not be cancelled.
2. The same submission is made in the Applicants' closing submissions.
3. The Respondent's SFIC addresses this issue in some detail. The thrust of the Respondent's SFIC in this regard was:

(a) Section 134 does not define the considerations that must be brought to account when exercising the residual discretion. The case of Philp and Minister for Immigration and Citizenship [2007] AATA 2092 at [98]-[169] contains a useful albeit non-exhaustive list of potentially relevant considerations. Notwithstanding the broad nature of the residual discretion, the discretion must be exercised in the context of the legislation in which it is found (citing Koosasi and Minister for Immigration and Citizenship;[87] Weng and Minister for Immigration and Citizenship[88]).

(b) Tribunals have repeatedly observed that the business visa scheme contemplates that such visa holders would remain resident in Australia (Ong and Minister for Immigration and Multicultural and Indigenous Affairs[89] at [31]; Ng and Minister for Immigration and Multicultural Affairs[90] at [12]).

(c) This is supported by the Second Reading Speech of the Migration Amendment Bill (No 2) 1992 (Cth) which introduced s 134 of the Act.

(d) At the time of application, a visa applicant must acknowledge the business objectives of that visa category. They must also understand that there is an expectation that they will make genuine efforts to comply with the business objectives. There are reporting requirements within the first three years of the visa grant. Additionally, such a visa can only be cancelled under s 134 if a relevant notice was given to an applicant within three years of visa grant or date of arrival in Australia.

(e) In light of those factors, the Respondent submits that:

(i) The First Applicant appears to have spent only minimal time in Australia. There is certainly is nothing to suggest that he and his family have moved to Australia permanently.

(ii) The Applicant's submissions on the residual discretion appear to be limited to an assertion that they should be able to keep their visas because they have invested a lot of money in Australia. But most of the investment has been in real property, supposedly for the purposes of generating rental income. The Applicants need not be present in Australia to maintain that investment. The First Applicant's role with respect to BBRD No 3 also appears to be capable of being discharged from China (in circumstances where his role is to generate interest from Chinese investors).

(iii) The Applicants are able to apply for other visas that do not have the same stringent obligations, in the event that they wish to visit Australia. In circumstances where the Applicants have only been in Australia on a limited basis, at most, the retention of their visas would be a convenience to the Applicants. This Tribunal should not exercise its residual discretion simply as a matter of convenience (citing Nagaria and Minister for Immigration and Multicultural and Indigenous Affairs[91] at [46]).

1. The Tribunal agrees with the Respondent's analysis of the law and his submissions in relation to the exercise of the discretion not to cancel the Applicants' visas. At most, what the First Applicant has established is that he has invested some $5 million in property in Australia. He does not need a visa to maintain and protect that interest. Insofar as the Applicants wish to visit Australia then more appropriate visas can be sought as and when needed. Given the scheme of the Act, the purposes for which visas are issued and the particular requirements attaching to different types of visas, the First Applicant does not require a Business Skills - Business Talent (Migrant) (Class EA) (Subclass 132) visa, and it would be inappropriate for him to hold one.
2. In the circumstances, the Tribunal is satisfied that the residual discretion not to cancel the Applicants' visas should not be exercised.

Will cancellation of the Applicants' visas cause extreme hardship?

1. The final issue to determine is whether the cancellation of the dependent Applicants' visas (being the wife and the son) would result in extreme hardship, such that the dependent Applicant's visa cannot be cancelled.[92]
2. The Applicants made no submissions in relation to this issue. There was no evidence put forward by the Applicants that would establish that the wife and the son would suffer extreme hardship if the visas were cancelled.
3. The Respondent cites the consideration of this issue by Foster J in Kim & Darmawan v Minister for Immigration and Ethnic Affairs[93] at 487:

...it is, in my opinion, important to approach the phrase "extreme hardship" in a broad way. Clearly, it imports a high degree, perhaps a very high degree of hardship, but it must be applied in the context of the facts of the particular case. "Hardship" is in itself a relative term. What may be a "hardship" to a sensitive person, or one in a particularly vulnerable situation, may be no great burden at all to a person of more stoical disposition or in a more protected situation. Similarly, the word "extreme" must be evaluated against the facts of the particular case. Such an evaluation cannot, consistently with the duties imposed upon the decision-maker by the Act, be approached in a dismissive or perfunctory fashion. A full and proper consideration of the person allegedly suffering the hardship or prejudice must be undertaken. Again, as emphasised in the passages cited, separate consideration must be accorded to the questions of "extreme hardship" and "irreparable prejudice". They are different concepts. They are not to be simply lumped together. Obviously the degree of prejudice must not be merely trivial (see per O'Connor J Marcelo v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 344 at 345) however, provided that some significant prejudice is shown, then the question of whether it is "irreparable" must be determined. It cannot be ignored on the basis that the prejudice involved would not, itself, qualify for the description of "extreme hardship".

1. The Respondent points out that these comments have been applied by the Tribunal citing Howard and Minister for Immigration and Citizenship[94] at [38]; Khemlani and Ors and Minister for Immigration and Citizenship[95] at [39]. See also Chen v Minister for Immigration & Anor[96] at [61].
2. The son had argued before the delegate that he was studying at an Australian university. The Respondent correctly points out that the documents provided in support of that argument showed that the son would finish the course on 30 June 2020. No further evidence was provided by the son in these proceedings. Further, the First Applicant's evidence was that the son had now obtained his master's degree.
3. There was no evidence presented which would indicate any hardship on the part of the wife if her visa were to be cancelled. The Tribunal is satisfied that there is no evidence that the wife or the son would suffer extreme hardship which would give rise to a bar under s 134(5) of the Act to cancellation of the visas of the wife and the son.

1. The Tribunal finds that the correct or preferable decision is that the Applicants' visas be cancelled. According, the decisions of the delegate of the Respondent made on 21 October 2019 to cancel the Applicants' Business Skills - Business Talent (Migrant) (Class EA) (Subclass 132) visas pursuant to s 134(1) of the Act are affirmed.

I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................

[15] [2002] FCA 1496 (Chen).

[16] [2009] FMCA 891 (Lu).

[17] Weng v Minister for Immigration and Citizenship (No 2) [2011] FCA 444 at [42] per McKerracher J.

[19] Essof v Minister for Immigration [2009] FMCA 13 per Wilson FM at [23]; Chen at [12]-[13] per Drummond J.

[20] Lu at [40] citing Nassif v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 481; (2003) 129 FCR 448 at [32]-[35] and Liang v Minister for Immigration and Citizenship [2009] FCA 189; (2009) 175 FCR 184 at [30]-[31].

[21] Kim v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCA 31 at [23]-[24] per Kiefel J.

[22] Koosasi and Minister for Immigration and Citizenship [2007] AATA 1311; Weng and Minister for Immigration and Citizenship [2010] AATA 60 (and on appeal Weng v Minister for Immigration and Citizenship [2010] FMCA 670).

[23] Applicants' closing submissions para [2].

[25] Respondent's SFIC para 23(a)(iii).

[29] Applicants' SFIC paras [16]-[17].

[31] Applicants' closing submissions para [7].

[32] [2003] FCA 481; (2003) 129 FCR 448.

[33] Re Australian Industrial Relations Commission; Ex parte Australian Transport Officers Federation [1990] HCA 52; (1990) 171 CLR 216.

[36] Definition of "eligible business", Migration Act 1958 (Cth) (Act) s 134(1)(a).

[40] Cross-examination, transcript at 51.

[55] Respondent's SFIC para [23](a)(iv).

[62] Administrative Appeals Tribunal Act 1975 (Cth) s 39; Sullivan v Department of Transport [1978] FCA 48; (1970) 20 ALR 323 (Sullivan) per Deane J.

[63] [1978] FCA 48; (1978) 20 ALR 323.

[65] See also Abede v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ.

[66] Respondent's SFIC para [23](b)(ii).

[67] [2001] FCA 933; (2001) 113 FCR 479 (Shead).

[74] Respondent's SFIC, para [23](c).

[77] Applicant's SFIC paras [25]-[27].

[83] Applicants' closing submissions para [48].

[84] Applicants' SFIC paras [29]-[31].

[85] Applicants' SFIC para [32]; Applicants' closing submissions para [52].

[86] [2004] FCAFC 340; (2004) 141 FCR 364.

[87] [2007] AATA 1311.

[88] [2010] AATA 60 (and on appeal, [2010] FMCA 670).

[89] [2003] AATA 178.

[90] [2003] AATA 299.

[91] [2004] AATA 579.

[93] [1995] FCA 1088; (1995) 37 ALD 481.

[94] [2010] AATA 989.

[95] [2013] AATA 401.

[96] [2011] FMCA 23.