Zhao v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2000-04-12|Before: Nicholson J

REASONS FOR JUDGMENT 1 This is an application for an order of review in respect of a decision of the respondent to cancel the applicant's subclass 457 visa. The relevant decision of the respondent is not subject to review by a Migration Tribunal - s 338 of the Migration Act 1958 (Cth) ("the Act") - so that jurisdiction arises in the Court pursuant to s 475(1)(c) of the Act.

Applicant's circumstances 2 The applicant was born in the People's Republic of China on 21 August 1958. He is married and has three dependent children. 3 On 5 February 1997 the applicant arrived in Australia. He did so on a subclass 456 visa described as "business (short stay)". He departed on 19 February 1997. He re-entered Australia on 10 May 1997.

Refusal of application 13 On 14 March 1998 an officer of the Department refused the grant of the subclass 457 visa to the applicant. The ground of the refusal was the officer was not satisfied the applicant had net assets of A$250,000 or a lesser amount considered to be adequate to conduct and establish the business. This decision was therefore that the applicant had not met the requirement of par (d) of subcl 457.223(7) of the Migration Regulations and therefore did not meet the requirements of subcl 457.223(7).

Review of refusal 14 The applicant successfully sought review of the visa refusal decision. On 19 October 1998 he was granted a subclass 457 visa to travel to, enter and remain in Australia until 19 October 2002. 15 It is not in dispute that the visa thus granted was granted on the basis of the application made by and for the applicant founded on his proposed work and investment in Fuju. 16 On 20 October 1998 the applicant returned to China. His evidence was that it was his intention to return to Australia with his family at the end of that year. 17 So far as is concerned the applicant's wife and three children, requests were made on 9 November 1998 and 14 December 1998 for medical examinations in connection with their applications. Notice of intention to cancel visa 18 On or about 17 April 1999 the applicant received a letter from the Department requiring him to attend an interview at the Australian Embassy in Beijing on 17 May 1999. He duly attended that interview. The letter requested that he bring with him documents constituting evidence that he had conducted business activity after he was granted his subclass 457 visa as well as evidence of any established links with Australian companies together with other documents. 19 Following the interview (on the applicant's account on 21 May 1999 and on the respondent's evidence immediately following the interview) the applicant received a notice of intention to cancel his visa dated 17 May 1999. The notice purported to be given under s 116 of the Act, which relevantly reads: "116(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: (a) any circumstances which permitted the grant of the visa no longer exist; …" Subsections (2) and (3) have no relevant qualifying effect here. 20 The notice commenced with the following three paragraphs: "It has come to the Department's attention that there may be a ground for cancellation of your visa under section 116 of the Migration Act 1958 because you departed Australia the second day after getting subclass 457 visa and have not been to Australia till now. If this is the case, your visa may be cancelled under section 116(1)(a) which sets out the following ground for cancellation: any circumstances which permitted the grant of the visa no longer exist. The Migration Act 1958 gives you the opportunity to comment on this ground for cancellation and to give reasons why your visa should not be cancelled." The applicant was told that the decision-maker considering the response to the notice would take into account matters such as "the evidence of the business you have conducted in or in relation to Australia since the grant of 457 visa". 21 By letter dated 14 June 1999 the applicant's agent denied there had been any change of circumstances in relation to the applicant. 22 By letter in response dated 23 June 1999 a Senior Migration Officer, Mr Kane, advised the applicant as follows: "Essentially, the decision to pursue cancellation comes down to our concern that in the seven months since the grant of his subclass 457 visa up until the date of interview, [the applicant] spent only one day in Australia. In our view, this is inconsistent with the fact that when [the applicant] was granted a visa as an independent executive at The Rocks it was done on the basis that, inter alia: · [The applicant] proposed to conduct a business activity in Australia that would be conducted by him as principal [Migration Regulation 457.223(7)(a)(I)]; · [The applicant] had 'a genuine and realistic commitment to maintain or obtain an ownership interest in a business in Australia; and to maintain a direct and continuous involvement in the management of the business; and to make decisions that affect the overall direction and performance of the business from day to day' [Migration Regulation 457.223(7)(b)]; and · The applicant demonstrated that there was a need for him to be temporarily in Australia to conduct or establish the proposed business [Migration Regulation 457.223(7)(f)]." Opportunity was given to the applicant to forward further documentation and this opportunity was taken up by his agent. That information included reference to the applicant's investments in Australia since the grant of his visa in companies known as Puliqun (Australia) Pty Ltd ("Puliqun") and Kam Fook (Hurstville) Pty Ltd ("Kam Fook"). This documentation showed that in August 1998, Puliqun invested some A$220,000 in Kam Fook, a Sydney company forming part of a group of companies concerned with the operation of restaurants and a tavern. 23 The applicant had been appointed a director of Kam Fook in August 1998. Additionally, he had been investigating and pursuing business opportunities for Caroma Bathroom products and Everhot hot water units in China but in the end these proved not significant. 24 A further submission was made on 18 August 1999 in which it was submitted the decision in Gu v Minister for Immigration and Multicultural Affairs [1999] FCA 991 was a compelling reason for a decision to be made in the applicant's favour. 25 On 30 September 1999, having heard nothing in response to the submission of 29 June 1999, the applicant's agent requested a ruling.

Cancellation of visa 26 By letter dated 8 October 1999 from Mr Kane the applicant was advised that "the Department has decided that there is a ground for cancellation of your visa under paragraph 116(1)(a) because circumstances which permitted the grant of the visa no longer exist". He was informed his visa was cancelled on 7 October 1999. 27 The applicant was provided with a copy of the Decision Record in respect of the decision. In relation to the grounds for cancellation the record stated: "Grounds for cancellation: Migration Act Section 116(1)(a) 'circumstances which permitted the grant of the visa no longer exist'. Specifically, the visa holder no longer has a genuine and realistic commitment: (i) to maintain or obtain an ownership interest in a business in Australia; and (ii) to maintain a direct and continuous involvement in the management of the business; and (iii) to make decisions that affect the overall direction and performance of the business from day to day." It recounted that in certain respects the applicant had been unable to produce evidence including substantial documentary or other evidence of completed or intended business activities relating to the Australian business. It noted that the applicant was the managing director and shareholder of Puliqun and Kam Fook and had transferred funds "as evidence of his genuine intention to engage in business". 28 Under the heading "Reasons", the Record recorded the following in relation to the engagement of the applicant in an Australian business: "The visa holder departed Australia one day after being granted a subclass 457 visa and at the time of being interviewed at the Australian Embassy on 17 May 1999 had not returned. He has provided very limited documentary evidence of having undertaken business activities in Australia. This is confined to a few business contacts and a photocopy of a Caroma product brochure. It does not reflect an intention to establish and operate a business on a day to day basis. The visa holder has provided evidence of holding funds which could be used for investment purposes but again this is not in itself indicative of active involvement in the management of a business. At interview the applicant was not convincing in his claims concerning his genuine commitment to establishing and managing an Australian business. He was unable to provide any details of serious business activities or negotiations. I have taken account of the claimed cultural differences in the recording of such negotiations but would have expected the visa holder to at least have recalled some of the more significant negotiations. He also has not been able to clearly set out what his business intentions are in Australia when provided with this opportunity. I have reached the conclusion that in both his lack of business activity and responses to questions at interview the visa holder has been unable to demonstrate that he continues to have a genuine and realistic commitment to own and operate a business in Australia." Also as part of the reasons the Record showed the following in relation to the application of pars (e) and (f) of 457.223(7): "I have considered the claims put forward that Regulations 457.223(7)(e) and 457.223(7)(f) were not in effect at the time the application for a visa was lodged. These parts of the Regulation were not however the principal areas of concern when considering the question of cancellation of the visa and have not been used when reaching the current decision." The reasons rejected claims put forward on behalf of the applicant that appropriate procedures had not been followed. 29 The reasons did also not accept that the applicant had been prevented from undertaking business activities in Australia because of delay in deciding his dependants' visa applications. It was stated that "while absence from Australia in itself is not an indicator of business intention there was no legal impediment to [the applicant] returning to conduct business in this period". 30 It was in respect of this decision that on 3 November 1999, the applicant occasioned the lodging of an application for an order of review.

Statutory setting 31 Division 3 of the Act deals with visas for non-citizens. The Minister is empowered to grant a non-citizen permission, to be known as a visa, to travel to and enter into Australia and/or to remain in Australia (s 29(1)). Visas may be permanent or temporary (s 30). There are prescribed classes of visas as well as classes provided for in specified sections of the Act (s 31). Regulations may be made prescribing criteria for a visa or visas of a specified class (s 31(3)). The regulations may provide that a visa or visas of a specified class may only be granted in specified circumstances (s 40)). Regulation 457.223(7) prescribes criteria for a grant of a visa under the class "Independent Executives". 32 Subregulation 457.223(7) (e) and (f) were not in existence as at the date of the application on 14 May 1997. The subregulation came into operation on 1 November 1997 as a consequence of statutory rule number 288 of 1997. 33 For the applicant it is submitted that the applicant had acquired the right to have his application for a visa determined in accordance with the Act as it stood at the time the application was made. For the respondent it is contended that both par (e) and (f) apply to applications made before commencement of those paragraphs. Each of the parties relies upon Esber v The Commonwealth (1992) 174 CLR 440 and Azevedo v Secretary, Department of Primary Industries and Energy (1992) 26 ALD 567 for these submissions. 34 The case for the respondent is that there is no need for reliance to be placed on reg 457.223(7) (e) and (f) and nor did the decision-maker place such reliance when deciding to cancel the visa. In the event, for reasons which follow, I consider it is unnecessary to characterise the legal effect of the amendments or to resolve the conflict in the submissions on this aspect.

Grounds of review 35 The grounds of review relied upon are those set out in pars (a) to (e) and (g) of s 476(1) of the Act. Nevertheless they are accepted in the course of argument as to be understood in the context of the particulars which were provided on behalf of the applicant. It is appropriate that each of these be addressed separately.

Particular 1: ground in notice of intention to cancel 36 The first particular is expressed in the following terms: "The only ground specified in the Notice of Intention to Cancel ('Notice') dated 17 May 1999 was that the Applicant 'departed Australia the second day after getting subclass 457 visa and has not been to Australia till now'. The requirement that the Applicant be resident in Australia is to be found in regulation 457.223 subparagraph 7(f). That subparagraph was not in force at the date when the Applicant applied for the visa (14 May 1997) and therefore could not be a 'circumstances which permitted the grant of the visa' which 'no longer exist' within the meaning of s116(1) of the Migration Act". 37 What the notice of intention did is to be understood in terms of s 119 of the Act pursuant to which it issues. That section reads: "119 (1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and: (a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and (b) invite the holder to show within a specified time that: (i) those grounds do not exist; or (ii) there is a reason why it should not be cancelled. (2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate. (3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally. (4) The other provisions of this Subdivision do not apply to a cancellation: (a) under a provision other than section 116; or (b) to which Subdivision F applies." None of the qualifying provisions has any relevant effect nor is there any "prescribed way" to be taken in account. It will be observed that s 119(1) distinguishes between "grounds", "particulars of those grounds" and "information…because of which the grounds appear to exist". 38 On my reading of the relevant passage of the notice of intention to cancel, the "ground" specified is that in s 116(1)(a). The reference relating to the applicant's departure is a particularisation of the ground. I do not therefore accept the premise of the submissions for the applicant in relation to this particularisation that the reference to departure is the only ground specified in the notice. 39 In doing so I am mindful of and accept the submissions for the applicant that the procedure for cancelling visas under Part II Div 3, sub-division E and F of the Act (ss 119‑133) replaces, in full measure, the rights conferred by the common law as belonging to natural justice. The argument for the applicant is that the notice provides no particulars of the grounds why circumstances permitting the grant of the visa no longer exist, as required by s 119(1)(a) and 120(2)(a) of the Migration Act save for the applicant's absence from Australia which was not a relevant particular, but rather a ground which was not an available ground for cancelling the visa: Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300; Minister for Immigration & Multicultural Affairs v Zhang (1999) 84 FCR 258 at 268-269 per French and North JJ; Merkel J agreeing at 273. 40 For the applicant it is also contended that given the central importance of the notice of intention and associated particulars required to be provided by the statutory regime for affording natural justice, it is the notice and the notice only which can form the basis for the Minister's decision to cancel a visa under s 127. Reliance is placed on the dicta of Olney J in Chiorny v Minister for Immigration & Multicultural Affairs (1997) 44 ALD 605 at 611 where he said: "To advise a visa holder that the visa was to be cancelled because 'the circumstances which permitted the grant of the visa no longer exist' is not, in my opinion, sufficient to comply with the requirement that the visa holder be given the particulars required to be given under ss 119(1)(a) and 120" That is not this position nor were the circumstances at issue in Chiorny even close to the circumstances of this present application. 41 In my view, the reference to the applicant's departure from Australia in the notice of intention to cancel is not an attempt to track the provisions of the inapplicable par (f) of reg 457.223(7). Rather, it is a particularisation of circumstances giving rise to the ground where the circumstances permitting the grant of the visa contained innumerable statements on behalf of the applicant of the need for his presence in Australia. The notice was not therefore fatally flawed because it relied upon an inapplicable subparagraph. Furthermore it put "the substance of the ground for proposed cancellation … to the visa holder in terms that are intelligible and which allow for an informed response in accordance with the procedural requirements of the Act": Zhang at 270.

Particular 2 - absence of particulars in notice of intention 42 The second particularisation of the grounds of review reads: "Further, or alternatively, the Notice provides no particulars as to the grounds why circumstances permitting the grant of the visa no longer exist, as required by s 119(1)(a) and 120(2)(a) of the Migration Act (save for the Applicant's absence from Australia which was not a relevant particular but rather a ground which was not an available ground for cancelling the visa). 43 The case for the applicant in respect of the notice is put alternatively on the basis that the letter from the respondent dated 23 June 1999 did not constitute "particulars" within the meaning of s 119(1) of the Act because it did not accompany the notice; was issued after the applicant's response and did not "give particulars of those grounds" in the notice as required by s 119(1) or constitute "a reason or part of the reason" within the meaning of s 120 of the Act and finally were no more than a repetition of pars 7(a)(1) and 7(b) of reg 457.223. That submission is put forward on the basis that the notice, being defective because of reliance on the inapplicable par (f), could arguably be saved by the provision of appropriate particulars through the letter of 23 June 1999. The premise for the applicability of this argument has already not been accepted by me. 44 Furthermore, subs 119(2) provides that the holder is to be notified of particulars in a way that the Minister considers to be appropriate. Subsection 119(3) recognises that notification may even be oral. Construing the requirements of subs 119(1) in the context of subss (2) and (3) of that section, it could not be said that the contents of the letter of 23 June 1999 so far as they provide particulars of the ground referred to in the notice were not particulars for the purpose of the notice given pursuant to s 119(1).

Particular 3 - reliance in decision on grounds not particularised in notice 45 The third particularisation of the grounds of review reads: "Further, or alternatively, the reasons for decision to cancel the visa included that in the opinion of the delegate the Applicant had no 'intention to establish and operate a business on a day to day basis' and the absence of an indication of 'active involvement in the management of the business'. In so doing the delegate based his decision to cancel the visa on grounds not set out in the Notice or provided by way of particulars to grounds set out in the Notice." 46 I accept the respondent's submissions in relation to this particular. 47 The ground of Mr Kane's decision to cancel the applicant's subclass 457 visa was the ground in s 116(1)(a) of the Migration Act, namely that circumstances which permitted the grant of the visa no longer existed. Mr Kane found that the circumstance which no longer existed was that the applicant no longer had "a genuine and realistic commitment to own and operate a business in Australia". 48 In his reasons leading up to that conclusion, Mr Kane stated: "He [the applicant] has provided very limited documentary evidence of having undertaken business activities in Australia. This is confined to a few business contacts and a photocopy of a Caroma product brochure. It does not reflect an intention to establish and operate a business on a day to day basis. The visa holder has provided evidence of holding funds which could be used for investment purposes but again this is not in itself indicative of active involvement in the management of a business." 49 The ground of cancellation of the applicant's visa, namely change of circumstances pursuant to s 116(1)(a) of the Migration Act, was the same ground of cancellation set out in the Notice of Intention to Cancel dated 17 May 1999. The Notice of Intention to Cancel and the subsequent facsimile from Mr Kane to the Applicant's Migration Agent dated 23 June 1999 provided adequate particulars of why it was considered that this ground of cancellation might be applicable to the Applicant. It is clear from the extensive submissions made by Australian Visa and Migration Services and the documents attached to that submission that the applicant was fully aware of the potential basis for the cancellation of his visa. Particular 4 -absence of state of satisfaction 50 This particular reads: "Further, or alternatively, the decision to cancel the visa was based on the delegate's 'conclusion that in both his lack of business activity and responses to questions at interview, the visa holder has been unable to demonstrate that he continues to have a genuine and realistic commitment to own and operate a business in Australia'. In so concluding the delegate required the Applicant to, in effect, show cause why, and to satisfy the delegate why his visa ought not be cancelled. The delegate did not, as he was required to do, reach the affirmative state of satisfaction that the circumstances permitting the grant of the visa no longer existed as required by s 116(a) of the Migration Act." 51 This particularisation requires consideration in the context of par 119(1)(b). That paragraph requires that the visa holder must be invited to "show" that the grounds referred to in the notice of intention to cancel do not exist or that there is reason why the visa should not be cancelled. True it is that s 116(1) requires the Minister to be satisfied as to the circumstances there set out and that in Gu at par 12, Mansfield J referred, in the matter before him, to the lack of apparent heed to those introductory words. However, it cannot be overlooked that once the notice has been issued the visa holder is called upon to "show" the non-existence of the grounds or reasons why the visa should not be cancelled. The notice raises an issue which shifts the burden to the visa holder, in this case the applicant. Furthermore, the Decision Record should not be read with a fine eye tuned to detecting error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271‑272. When the decision-maker concluded that the visa holder had "been unable to demonstrate" that he continued to have a genuine and realistic commitment to own and operate a business in Australia the decision-maker was doing no more than saying that the applicant as the visa holder had failed to "show" the matters required by s 119(b).

Particular 5 - no evidence 52 The final particularisation reads: "Further, or alternatively, when the decision was made to cancel the visa there was no evidence that the Applicant did not propose to conduct a business activity in Australia as principal or that he did not have a genuine or realistic commitment to maintain or obtain an ownership interest in a business in Australia; and to maintain a direct and continuous involvement in the management of the business and to make decisions that affect the overall direction and performance of the business from day to day, so that the circumstances which permitted the grant of the visa have not changed." 53 On behalf of the applicant, attention was drawn to a statement from the Department dated September 1998 in which it was said: "It is acceptable for Independent Executives to change businesses in Australia after grant of their visa provided they continue to comply with the key conditions for grant of a 457 Independent Executive Visa." These are then identified in terms of reg 457.223(7)(a) and (b). It is accepted for the respondent that this policy was applicable when the respondent's delegate made the decision under review. The Minute setting out the policy stated that Independent Executives who continue to comply with the conditions in pars (a), (b), (c) and (d) of reg 457.223(7) of Schedule 2 of the Migration Regulations should not be considered for visa cancellation. However, the Minute also states that it may be appropriate to consider visa cancellation under s 116(1)(a) of the Act in cases where the visa holder: "is not presently engaged in business and is not actively seeking further business opportunities by, for example, conducting research or negotiating contracts; and/or is working as a employee, rather than a business owner". 54 The respondent's delegate had regard to both the specific business proposal upon which the visa was granted and all of the applicant's business activity since the granting of the visa, including his investment in Puliqun and Kam Fook. This was not a case where consideration for visa cancellation was precluded by the terms of the policy because there was abundant evidence the applicant was not maintaining a direct and continuous involvement in the management of the business: reg 457(b)(ii). 55 Nor was this a case where the change of business from Fuju to Puliqun and Kam Fook was a ground for cancellation not referred to in the Notice of Intention to Cancel. The question before the decision‑maker was whether in relation to Fuju and in relation to the new circumstances, including Puliqun and Kam Fook, there was evidence that the applicant did not continue to comply with s 116(1)(a) of the Act because of a failure to comply with reg 457.223(7)(b). The particular relevant to that question was the particular referred to in the Notice of Intention to Cancel, namely the applicant's departure from and non‑return to Australia. 56 In my opinion there was evidence before Mr Kane which entitled him to conclude that the applicant's absence from Australia led to the conclusion he did not have the genuine and realistic commitment required by the elements of reg 457.223(7)(b) so that the power arose in the Minister to cancel the visa pursuant to s 116(1)(a) of the Act.

Conclusion 57 For these reasons I consider the application should be dismissed. I certify that the preceding fifty‑seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson.

Solicitor for the Applicant: Australian Visa & Migration Services

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 30, 31, s

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