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High Court of Australia Transcripts |
Last Updated: 29 September 2015
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S169 of 2015
B e t w e e n -
ZHENHUA ZHANG
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Defendant
Application for an order to show cause
GAGELER ACJ
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON WEDNESDAY, 23 SEPTEMBER 2015, AT 9.41 AM
Copyright in the High Court of Australia
MR N.C. POYNDER: If it please your Honour, I appear for the plaintiff. (instructed by LAS Lawyers & Consultants)
MR P.M. KNOWLES: May it please the Court, I appear for the defendant. (instructed by Australian Government Solicitor)
HIS HONOUR: Well, Mr Poynder, you tried to file some consent orders and I was not prepared to make those orders without at least some discussion of the basis for them.
MR POYNDER: Yes.
HIS HONOUR: I hope it was communicated to you that I had some difficulty with the last couple of substantive paragraphs in the argument of the outline of supplementary submissions for the defendant.
MR POYNDER: Yes, and that is a matter which I think will need to be aired today.
HIS HONOUR: Yes.
MR POYNDER: Insofar as the proposed remitter goes, if the matter is not dealt with in the way which the defendant seeks today, the parties are in agreement that it was really only in the last few days that my learned friend brought to my attention that this is a matter which can be heard by the Federal Circuit Court. It is a rare type of visa where there is apparently, as we now know, no merits review. That being the case, the matter does not fall within the prohibition on the Federal Circuit Court hearing primary decisions because it is not a primary decision under the 476(4) definition; that is, it is not Part 5 reviewable.
So perhaps by way of explanation, commonly in these cases there is an offshore applicant with an onshore government authority sponsoring them, for example, subclass 163 and 165 visas where, if the visa is refused, the only body with the right of merits review is the onshore government authority that commonly does not seek to exercise that right, so the offshore applicant is left stranded with nowhere to go but the High Court. Now, that is – and I apologise for that – the trap I fell into. I overlooked the fact that this type of visa can be granted either offshore or onshore, which therefore means that it does not fall within the Part 5 reviewable decisions.
HIS HONOUR: Yes.
MR POYNDER: That being the case, and anticipating my learned friend’s argument, we would seek that the matter be remitted to the Federal Circuit Court, and in relation to the matter being out of time, of course one
of the issues which needs to be taken up on that question would be the merit of the substantive application which would, in my submission, best be dealt with by the learned Federal Circuit Court judge below, simply because of the complexity of the facts, the possibility that witnesses may need to be called and the detail the Court here would have to go into to determine that question. So that is really our situation in relation to the need to extend time.
HIS HONOUR: Yes. Well, my difficulty is that I would need to be convinced that it is an appropriate exercise of the power to remit under section 44 of the Judiciary Act for me to remit without having determined the extension of time application.
MR POYNDER: Yes.
HIS HONOUR: I am not sure if that is something you want to deal with immediately or if you would prefer Mr Knowles to deal with, but - - -
MR POYNDER: I think Mr Knowles would seek to address your Honour first on that issue.
HIS HONOUR: Yes. All right, Mr Knowles, can we deal with that?
MR KNOWLES: Yes, your Honour. I should just say one thing before I do do that. It is this: the position of a remittal is not – or should not be described as by consent. The defendant’s primary position is that the extension of time should not be granted. However, I recognise, as my learned friend said, that that will involve some consideration of the merits and it is a matter for the Court to determine whether it would prefer that to be considered by the Federal Circuit Court.
HIS HONOUR: Well, it may be a matter of whether the Federal Circuit Court can consider that matter.
MR KNOWLES: Quite, your Honour. If I might - - -
HIS HONOUR: That is what is troubling me.
MR KNOWLES: Yes, your Honour. Your Honour, the issue has been considered twice by single justices of this Court. If I could hand up to your Honour a folder, your Honour will see - and I do not say that any of these support me; I only bring them to your attention. Your Honour will see in tab 4 of the folder a transcript of a decision by his Honour Justice Gummow in the case of Ahmed v Minister for Immigration. On the third page from line 85 of the transcript, his Honour records that it was in that case the agreement of the party that it was for this Court to make the extension of time order, and I note, but it was agreed that “only this Court” may make that order under section 486A.
HIS HONOUR: Yes.
MR KNOWLES: Now, of course, what I am submitting, or will be submitting to your Honour, is that the agreement between the parties obviously is different in this case and his Honour Justice Gummow did not have to because of that agreement consider the question.
HIS HONOUR: Well, is the agreement of the parties different as to section 486A(2)?
MR KNOWLES: Well, I think, as I apprehend it, your Honour, the agreement of the parties is that the Federal Circuit Court could itself consider the extension of time issue, so the agreement is - - -
HIS HONOUR: Yes, but what is the mechanism for it to do so?
MR KNOWLES: It could be, in my respectful submission, either section 477, which is that court’s power to extend time on an application to the Federal Circuit Court or, alternatively, section 486A, which is this Court’s – sorry, I should say 486A(2), which is this Court’s power to extend time, read with section 476(1) – I am sorry, does your Honour have a copy of the legislation?
HIS HONOUR: Yes, I do.
MR KNOWLES: Read with 476(1), which confers on the Federal Circuit Court:
the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
Which of course confers jurisdiction in respect of matters concerning the grant of certain relief. The language of section 44(1) of the Judiciary Act is also in terms of matters to be remitted and as your Honour is aware of authorities such as Re Wakim, a matter is not to be confined to particular disputes between the parties but the whole of the issues that arise from a particular substratum of facts. In this case, it is my submission that the matter before this Court and the matter to be remitted pursuant to section 44(1) is not just the extension of time application, but the whole of the substantive dispute including the entitlement of the plaintiff to relief, which then leads to the question - - -
HIS HONOUR: It does require some squinting at subsection (2) of section 486A to achieve that result, does it not?
MR KNOWLES: Well, I accept, your Honour, that subsection (2) confers the power on the High Court and that it is expressed in terms – read with subsection (1), is expressed in terms of an application being made, as opposed to a remedy being granted, but this Court in Bodruddaza suggested, with respect, or opined that that has to be read as a matter of substance, not as a matter of form.
It is my submission that the reason the Federal Circuit Court can itself determine the question under section 486A is that once it is recognised that the Federal Circuit Court has the same jurisdiction in respect of matters arising under section 75(v) relating to migration decisions, that must include this Court’s jurisdiction to make orders under section 486A(2) because that is part of this Court’s jurisdiction in respect of matters relating to migration decisions.
In the same way that this Court, should the matter not be remitted -this Court could make procedural orders for the determination of the extension of time application, for example, that it be heard concurrently with a final hearing. This Court, once the matter is filed and the application for an extension of time is made, is seized with sufficient jurisdiction to make procedural orders including orders for remittal under section 44.
HIS HONOUR: Well, it is seized with jurisdiction in respect of the entirety of the matter to which the application relates.
MR KNOWLES: Yes, your Honour.
HIS HONOUR: In the exercise of that jurisdiction it is given certain statutory powers. One of those powers is the power to order an extension of time under section 486A(2). My problem is with the Federal Circuit Court being able to exercise that statutory power when the matter is referred to it.
MR KNOWLES: The only way I can submit to your Honour that the Federal Circuit Court has that power is that it is picked up in the conferral of power under section 476(1), which is the general conferral of power subject to the carve-out which is equivalent to this Court’s power and, in my submission, that must include – I withdraw that. I said “power”; I really properly mean jurisdiction.
HIS HONOUR: Yes, well - - -
MR KNOWLES: It may not make any difference in this case but - - -
HIS HONOUR: I think it makes all the difference in this case. Now, you were taking me to some authorities, so you have taken me to Ahmed which was very helpful, thank you. Is there something else you wanted to show me?
MR KNOWLES: Yes, the only matter again – and this is perhaps the course I urge upon your Honour because I do not pretend that it is an issue without perhaps some difficulty – her Honour Justice Bell in the transcript behind tab 5, SZTVL v Minister for Immigration, the transcript is quite long but the portion that I wish to take your Honour to is quite short. At page 30 of that transcript commencing from about line 284, her Honour asks Mr Markus, the solicitor for the Minister, whether it would be appropriate to remit the matter. Mr Markus agrees. Then, importantly, her Honour says at line 1290:
It is, I think, on a view, necessary – it may be necessary for this Court to make an order under section 486A extending time.
After some discussion with the counsel for the applicant, Mr Markus responded at line 1301 that he was “not entirely sure” that that was correct but her Honour, out of caution perhaps, decided that the issue should be determined and, in this respect, that is the position – my principal submission I urge upon the Court to determine the issue. The question of whether the Court could remit it without determining the issue is one I raised in my submissions, so the Court is aware of that.
HIS HONOUR: I must say very helpfully it would be a desirable course as an exercise of discretion if it is available. My concern is with whether it is available.
MR KNOWLES: Yes, your Honour. I have probably said all I need to say about that, subject to this, that there is an alternative position which would be some decisions of the Full Federal Court have considered the position that occurred previously under old statutory regimes and the old High Court Rules where matters were remitted outside the six-month time limit provided for under the Rules. The position in the Full Federal Court was - there are a number of matters; I can take your Honour to one of them if your Honour wishes – but the position was that the time limits under the High Court Rules do not apply once a matter is remitted to the Federal Court.
Now, I do not urge those authorities upon your Honour for this reason, is that the rules clearly govern questions of procedure and once remitted the procedure is determined by the Federal Court Rules, not the High Court Rules. The restriction we are talking about in this case is a
statutory condition upon the exercise of power and for that reason those authorities, in my submission, are not relevant.
It could be suggested, however, that upon remittal the Federal Circuit Court would have power to grant an extension of time under section 477(2) which is its own extension of power provision, but that would require a construction or a characterisation of a remitted matter as being an application brought in the Federal Circuit Court. Now, in my submission, that could be a proper characterisation but, as with the position under section 486A, it is perhaps not the most obvious example of when that power would be exercised.
HIS HONOUR: All right. Well, I understand those two different ways of putting the point. Is there anything else you want to say about the appropriate exercise of the power to remit?
MR KNOWLES: Yes, your Honour, I should address your Honour briefly on that. If your Honour turns to – I understand it is not formally in evidence. If your Honour wishes it to be I can tender it. It is my learned friend’s affidavit. I was wanting to refer your Honour to the decision under review.
HIS HONOUR: Well, if I need to deal with the extension of time point, I will deal with that separately. I am just dealing with the question now of the power to remit.
MR KNOWLES: Yes, I was at cross purposes.
HIS HONOUR: No, I did not make it very clear. I would like to hear Mr Poynder on that and then we will see if we need to move on to the extension of time question.
MR KNOWLES: If the Court pleases, they are my submissions on the power question.
HIS HONOUR: Yes, thank you very much. Mr Poynder.
MR POYNDER: Your Honour, on the power to remit, I really do not have anything to add to my learned friend submissions on that matter. We would be content if the matter had to stay here to deal with it on that basis and similarly if the matter had to go down to the Federal Circuit Court, then we would content with that course as well. I just have in mind that if we do have to go deeply into the merit of the question of the extension of time, we might need to martial evidence or have people available for cross-examination if necessary, for example, the plaintiff himself who has sworn an affidavit as to the reasons for delay, and we are not quite at that point yet in marshalling our materials.
HIS HONOUR: I am sorry, are you saying that you need time to marshal evidence now to deal with the extension of time point?
MR POYNDER: We have put on evidence already which is before the Court.
HIS HONOUR: Yes.
MR POYNDER: I have had no indication from the defendant as to whether or not the witnesses who have made those affidavits in relation to the reasons for the delay would be required today.
HIS HONOUR: Well, that would be an unusual course and in the absence of notice and given the written submissions, I think we can take it that that is not being sought.
MR POYNDER: Yes. But no, everything we need is now on - - -
HIS HONOUR: Yes, all right. Well, look, let us not confuse the sequence of the argument. You have nothing more to say about that?
MR POYNDER: No, I do not, no.
HIS HONOUR: All right. I think it would be appropriate then if we move on to the extension of time application and I will hear what both of you have to say about that, and whether or not I need to reserve for a short time, we will see.
MR POYNDER: Your Honour, I would need to read some affidavits in - - -
HIS HONOUR: Yes, very well.
MR POYNDER: - - - on the extension of time issue. The first affidavit is of the applicant and that is made on 28 August 2015 and it is a two-page affidavit filed with the Court on 2 September 2015.
HIS HONOUR: Yes, I have that affidavit. Is there any objection to that?
MR KNOWLES: ..... objection to this or any of the other filed affidavits, your Honour.
HIS HONOUR: Yes, thanks for that indication, Mr Knowles.
MR POYNDER: The second is an affidavit of the migration agent whose name was Yan (Sophie) Qi. That was also filed on 2 September 2015. It was sworn on 13 August 2015. That too is a two-page affidavit. There is a longer affidavit by the same deponent which has - - -
HIS HONOUR: Of the same date I think, yes.
MR POYNDER: Yes. Those two affidavits set out essentially the reasons for the delay in that it took some time for the plaintiff to find a solicitor to assist them and counsel to assist in relation to Ms Qi’s affidavit, and then in relation to Mr Zhang, the plaintiff’s affidavit, he had attempted to lodge a new application after his original application was refused before he went ahead then to seek review of the current refusal.
HIS HONOUR: Yes.
MR POYNDER: Then, in relation to the merit of the case, the bulk of the documents are annexed in a paginated exhibit to the affidavit of Ms Qi again and that is sworn on 13 August 2015 and filed on 2 September 2015. There is also an affidavit – and I seek to read that – and there is an affidavit by Stephen Kwong and this is sworn on 13 August 2015 and again filed on 2 September 2015, and that sets out essentially the searches they did in China.
If I could just pause there for a moment, the issue here was the genuineness of a tax office receipt which had been provided with the original application and when the case officer based in Hong Kong had formed a preliminary view that that receipt might not be a genuine document, a natural justice letter was sent out to the plaintiff and his migration agent, at which time the plaintiff had Mr Kwong assist him by coming over to China to search out where that document was originally issued from, in a major taxation office in China.
From there they went to a small branch office and managed to find the exact office where the Chinese copy of the document had been kept and they found an officer there who was able to provide a notarial certificate to the effect that the taxation certificate was genuine and also a letter confirming the genuineness of the certificate and the records held by that office and providing a telephone number at which he could be contacted should the case officer wish to contact him to confirm the genuineness of that document. So, going to the merits of the case, there are two grounds which arise from that. Shall I take your Honour to that now?
HIS HONOUR: Well, yes, I have looked at these affidavits. I cannot say that have fully absorbed the detail of your application. I am not sure I absorbed the point that you have just made that these documents were found in a branch office, you say?
MR POYNDER: I will take your Honour briefly to the evidence, if I may.
HIS HONOUR: Yes.
MR POYNDER: The tax receipt that I was referring to is at page 34 of Ms Qi’s affidavit, or the attachments to Ms Qi’s affidavit. That is the English version. It is a tax office receipt; that is what I will call it for present purposes.
HIS HONOUR: Yes.
MR POYNDER: A verification check was carried out on that document and that can be seen at pages 91 to 94, which is the so-called natural justice letter, an invitation to comment, and the reference to the verification check is at about point 3 on page 92, and there is a suggestion that this is a bogus document.
HIS HONOUR: Yes.
MR POYNDER: Mr Kwong’s travels, as I will call them, if I can take your Honour back to his affidavit, he sets out at paragraph 4 of his affidavit what he did. He:
travelled from Sydney to Guangzhou then on to Chongqing to meet with Mr Zhang to obtain evidence that the tax receipt is genuine.
This is the travel to the branch office - paragraph 5. They drove 300 kilometres to a local taxation bureau, taking:
the original tax receipt and a copy of the letter from the Department. We showed these documents to an officer but we were informed that as we were not the person to whom the receipt had been issued, they could not provide us with any information –
Then there is some more to’ing and fro’ing and then paragraph 8, on 13 May they found the Pailou Taxation Office which is at a place in Chongqing and met with the supervisor of the archives section and so forth, who was able to confirm the genuineness of the tax receipt and he told them that if they would come back in several days’ time he would be able to provide them with a hard copy of the tax receipt if possible. Does your Honour have that?
HIS HONOUR: Yes, I have that. I actually do not have a sense of the geography here.
MR POYNDER: Yes.
HIS HONOUR: Is it the case, or are you saying that it is the case, that the Pailou taxation office is some minor or different - - -
MR POYNDER: It is a different - - -
HIS HONOUR: - - - place?
MR POYNDER: Yes.
HIS HONOUR: At a different place from the main taxation office?
MR POYNDER: Yes. If we have to go into geography, there is a main taxation office which is much larger than the branch office.
HIS HONOUR: Where is this main taxation office?
MR POYNDER: The main taxation office is in Chongqing. Mr Zhang himself is from Chengdu - paragraph 3 of Mr Kwong’s statement, last line, Mr Zhang’s home town is Chengdu.
HIS HONOUR: Yes.
MR POYNDER: Then two lines above, the taxation bureau is in Chongqing City, and then paragraph 5 indicates that it is 300 kilometres from Mr Zhang’s home town to Chongqing City. We are not at the branch office yet.
HIS HONOUR: Yes. So the authority on the tax receipt – I am looking at paragraph 3:
The authority on the tax receipt is the Local Taxation Bureau in the Wanzhou District of Chongqing City.
MR POYNDER: Yes.
HIS HONOUR: That appears to be where he gets to in paragraph 8.
MR POYNDER: In paragraph 8, no, he goes – in paragraphs 4, 5, 6 and 7 they are in Chongqing City at that original issuing office. Then in paragraph 8 – at the end of paragraph 7:
We were informed that we need to go to the Pailou Taxation Office which issued the tax receipt.
That is the branch office.
HIS HONOUR: I see, both of them in the Wanzhou District of Chongqing City?
MR POYNDER: Yes.
HIS HONOUR: Okay. That is what confused me slightly. Yes, all right.
MR POYNDER: Then in paragraph 8, they find the Pailou Taxation Office – that is also in Chongqing – and that is where they meet with the supervisor, who unhelpfully tells them to come back in a few days. In fact, in the meantime, Mr Kwong had to return to Sydney, and Mr Zhang went back there himself in a few days’ time. Paragraph 10 is Mr Kwong’s evidence that he:
received a phone call from Mr Zhang [to tell me] that Mr Lan –
the man from the Pailou office –
had finished the investigation and he had asked Mr Zhang to come tomorrow to collect a certification document regarding the Tax Payment Receipt –
and then –
Mr Zhang sent me a photo of the certification using WeChat –
That is the document at SBK 3, which is, in the English version – I am sorry, it must be SBK 4 – in fact, the version of that which is in English, because at that stage it was only in the Chinese version, is at Ms Qi’s affidavit in the annexures at page 105, and it is described as a certification. Your Honour will see on page 105 that it has come from the Pailou Taxation Office – that is on the last line of page 105.
HIS HONOUR: Yes.
MR POYNDER: There is a contact number where the officer can be contacted, and the document itself certifies that the inquiring person had asked about the tax payment receipt. It had been ascertained to be “genuine and valid after investigation”. So that is a letter only. The other document which was obtained from the Pailou office was a notarial certificate. This document is at page 100 of Ms Qi’s annexures.
HIS HONOUR: That is a Chinese document?
MR POYNDER: I am sorry, the English – page 103. They were provided to the delegate. Those two documents, we say, were critical, and the issue then arises – I come then to the decision itself, which begins at page 113. Your Honour will see in the decision at page 116, right at the bottom, there was a reference to documents having been submitted:
supporting [the] submission that the tax receipt is not a bogus one –
The first document is the letter, which I took your Honour to first, and the second document is the notarial certificate, which I took your Honour to second.
HIS HONOUR: Yes.
MR POYNDER: Under “Findings and Reasons”, the decision-maker under subparagraph (1) on page 117 looks at the document verification, which was the original phone call to the office in China, then looks at the notarial certificate sent by the migration agent. But there is no reference at all to the letter which I took your Honour to first amongst those two letters confirming the genuineness of the receipt and providing a contact telephone number from the Pailou office. That gives rise to what we say is the first error, which is a failure to make a finding in relation to the letter from the Pailou office, because that letter was critical, in our submission.
HIS HONOUR: The certificate with which we are concerned – I think you have called it the “Taxation Office Receipt” - - -
MR POYNDER: Yes.
HIS HONOUR: - - - does not refer to it being issued from the Pailou office?
MR POYNDER: No, it does not. The second error which we say arises from the letter from the Pailou office arises from the duty to inquire. As I set out in my submission, we accept that there is no general duty to inquire on a decision-maker, but that does not mean that the decision-maker is always excused from making an inquiry. I have referred in my submissions to SZIAI’s Case, where it may arise where there is an obvious inquiry as to a critical fact, and the existence of which is easily ascertained could in some circumstances supply a sufficient link to the outcome of the case that a failure to make that inquiry might constitute an error.
In a case such as this where a letter had been provided from the Pailou office with a contact number, in circumstances where, shortly prior to that having been done, the decision-maker herself took the step of making a phone call to the main taxation office, so in other words, the decision-maker herself considered that it was sufficient to call the main taxation office to ask about the genuineness of the document, in our submission, it would have been reasonable for her to do exactly the same thing in relation to the Pailou branch office, having been provided with that letter and with a contact number. It is our submission that this is one of those unusual cases where a duty to inquire would have been able to provide the delegate with critical information which would have affected her inquiry and removed her doubts. That is really in a nutshell what we say are the errors in this decision.
HIS HONOUR: Yes. All right, that is very helpful. Thank you, Mr Poynder. Mr Knowles.
MR KNOWLES: Your Honour, before I make submissions on the substance, there are two matters of fact which arise from the documents which I will just take your Honour to. Firstly, my learned friend submitted that the notarial certificate, the English translation of which is at page 103 of the exhibit, was issued by the Pailou branch office. The notarial certificate itself indicates that in fact it was issued by a notary public office in Wuhan City, not by the Pailou Taxation Office. That seems to be consistent with the evidence of Mr Kwong at paragraph 11 of his affidavit. I do not think anything turns on that.
The only other factual matter is I apprehended that your Honour asked my learned friend whether the certification, which is the key document, indicated it was issued by the Pailou Taxation Office, or the Pailou branch office. The English translation at page 105 contains, in the last two lines, an indication that it was issued by the Chongqing Wanzhou District Local Taxation Bureau, but there is a reference to the Pailou Taxation Office there. Again, I do not think anything turns on that in particular, for reasons I will come to.
The Minister opposes the grant of an extension of time for two reasons. Firstly, consistent with general principles, a relevant consideration in the exercise of the discretion to grant time will be the explanation given for a delay by the plaintiff. The explanation in this case is found in the affidavit of Ms Qi, the migration agent. That affidavit explains that after the decision was made, which was made on 22 May 2015, she on behalf of the plaintiff engaged a solicitor in early June. From paragraphs 4 and 5 of that affidavit, it becomes known that the solicitor engaged gave advice about the plaintiff’s rights to commence proceedings in this Court by at least 9 June, and one can infer that the plaintiff knew soon after, because Ms Qi explains that she passed that advice on.
It would then appear that the plaintiff did nothing until early July, which is explained in paragraph 5 of the affidavit. By 8 July, counsel was engaged to prepare proceedings, and the proceedings were not brought until 2 September. That chronology shows that the applicant was well within the time period aware of rights to commence proceedings; after receiving advice to that effect, did nothing for approximately a month. Then, when steps were taken to engage counsel, there was still some considerable delay until these proceedings were filed on 2 September. I should say, in making that submission, I do not submit that the Minister suffers any prejudice as a result of the delay, but nevertheless, in my submission, particularly where one is considering relief in the nature of a constitutional writ, it is important that these matters be commenced in a timely fashion, as contemplated by the legislation.
The second reason, and perhaps the more important reason upon which the Minister opposes the extension of time, is that, in my respectful submission, the application is bound to fail. Ground 1 asserts a failure to consider the certificate, which is found in this English translation at page 105 of the exhibit. But when one turns to the reasons of the Tribunal, in my submission, as a question of fact, the inference that the document was not considered or was not the subject of a finding simply does not arise.
At page 116 of the exhibit – this is the second last page of the delegate’s decision – the delegate expressly lists the documents that were provided in response to the natural justice letter. That list is a short list – it is a list of two – but it includes specific reference to the letter certifying the payment of tax; that is the document referred to in A at the bottom of page 116. When a document is specifically referred to in written reasons of the delegate, it would not, in my submission, be an available inference that it was somehow overlooked or not considered.
When one comes to the way in which the delegate resolved the issue, the delegate found, after having made the initial verification request and having been informed that the document was not genuine – or having received information that the document was not genuine – the delegate went on to consider the response to the natural justice letter. The delegate expressly dealt with the notarial certificate and found that because that was from a third party notary, it simply confirms that the copy provided is a true copy of what purported to be a certificate. It does not rise any higher than a certification that it is a true copy; whether or not it is a true copy of a genuine document or a fraudulent document, the notary could not determine. That, with respect, is impeccably logical reasoning.
HIS HONOUR: But it is also not Mr Poynder’s point.
MR KNOWLES: Not challenged, no. Then, in the next paragraph that commences “On the basis of the above”, the delegate says that he is:
unable to find the documentation provided in response to the invitation for comment sufficiently strong to refute the non-genuine nature of the tax receipt –
That reference to the information provided can only be a reference to the information referred to at the bottom of the previous page, and the top of that page, which includes the certification. So, as a matter of fact, the inference is not available. That inference is supported by reference to what the delegate’s obligations are in terms of setting out its reasons for decision.
HIS HONOUR: Or her reasons.
MR KNOWLES: I should withdraw that – her reasons for decision. The legislative requirement can be found in section 66(2), which sets out what a notification of a decision to refuse a visa must contain. The reason I draw your Honour’s attention to this is that it is in a different form to perhaps the more well-known section 430 and the equivalent for the old Migration Review Tribunal, which specifically requires the written reasons of the Merits Review Tribunal to include reference to the evidence upon which the decision is based.
Your Honour is aware of cases in this Court such as Yusuf where the nature of that requirement in section 430 can be a matter that one considers when determining whether an inference is available that information was overlooked. In my submission, the absence of a requirement upon the delegate to include such references – that requirement being the requirement in section 66(2) – makes the inference that my learned friend seeks to draw even more unlikely.
My learned friend’s submission that the Tribunal was somehow required to make a finding about the certification document, in my submission, is not correct if that submission is put on the basis that – I am not sure that it is, but if it is put on the basis that the Tribunal was required to make a finding that it did not accept the certification document as genuine, and it preferred the information provided through the initial information request, the decision of this Court – and I have cited it in my footnotes; I do not need to take your Honour to it – in SZJSS stands for the proposition that when considering the Tribunal in that case – but in this case, the delegate’s obligation to consider evidence – it is for the Tribunal to determine what weight to put on that evidence, and it is open to the Tribunal to give documents no weight in light of other evidence. It is not required to go a step further and make a positive finding that the document said to corroborate the plaintiff’s claims are themselves fraudulent or not genuine. It was sufficient for the delegate to do what it did in this case, which is simply to say that it prefers some evidence rather than the other.
In terms of the second ground, which is put on the basis that the Tribunal in the particular circumstances of this case had an obligation to inquire, as I have said in my written submissions, that submission cannot withstand the precise finding in SZIAI, which again related to an assertion on the part of a visa applicant that the Tribunal should have telephoned somebody whose contact details were included on a letter corroborating certain claims. It is, in the circumstances of this case, relevantly identical. The Tribunal – or in this case, the delegate – is not required to make an inquiry, or exercise its powers to make an inquiry, in circumstances where no utility could come of it in the sense that all that could have been achieved, as in SZIAI through a phone call – at its best, all that could have been achieved was somebody purporting to be from that office saying that the document was what it purported to be. That inquiry had already been made.
HIS HONOUR: Mr Poynder’s point, as I understand it, is that we are talking about different offices.
MR KNOWLES: That may be so, your Honour, but the delegate’s obligation can only be to make an obvious inquiry, to use the language of SZIAI. The distinction between the Pailou branch office and the main office is not one that is brought out in any of the material that was before the delegate. If your Honour goes to the response to the natural justice letter, which can be found at page 98 – this is a response given by Ms Qi, the migration agent, attaching certain documents which your Honour has been taken to; the notarial certificates and the translation as well as the additional certification in this case – there is no reference or explanation there to the reason why this document was not initially produced by the main office and how it came to be obtained through the branch office.
The only reference to the Pailou office is the note that I took your Honour to at page 105 of the English certification, but there is no reason for it to be obvious to a delegate in Hong Kong that there was a distinction between the main office, which the inquiry was originally made to, and the branch office, which was said to have provided this certification. It is true that there is a contact number on the certification, but there is no contact name. There, as I have said in writing, may well be other matters which inhibit the making of an inquiry, including questions of privacy, diplomatic protocol, and language difficulties.
This is not, in my respectful submission, the rare type of case considered by the High Court in SZIAI where there is an obvious inquiry into a critical fact which could be easily established, because of the reasons I have set out, was not known to the delegate – or it cannot be assumed that the delegate knew of the intricacies of the Chinese tax office branch structure, let alone the other difficulties of making telephone inquiries to unnamed persons about a third party. If the Court pleases, they are my submissions.
HIS HONOUR: Thank you very much. Mr Poynder, do you have anything in response?
MR POYNDER: Just a couple of matters, your Honour. Just on that last point, the circumstances of the proposed or possible inquiry to the Pailou office, in my submission, are not relevantly different to the circumstances which were made to the first taxation office – issues of privacy, not knowing who she was calling, and so forth. That all applied in relation to the first inquiry to the first office, and if it was good enough to make an inquiry to the first office in that circumstance, then it should have been good enough for her to make the same sort of inquiry to the second office.
In relation to what I will call an oblique reference to the certifying letter in the delegate’s decision, that gives rise, in my submission, to issues that are sometimes called the “lip service” argument. There is a recent reference to that argument in the decision of Justice Flick called Islam v Cash [2015] FCA 815, but your Honour is well familiar with it – that is, it is not good enough for the delegate simply to mention a document and say that has been dealt with; there has to be some sort of engagement with it, and to make findings on it. In my submission, not only is there no mention of that document in the “Findings and Reasons” section of the decision, but there is certainly no engagement with it.
Just in relation to time limits, your Honour, we are possibly dealing here with a situation where under the High Court Rules, of course, there are different time limits than there are in the Migration Act. I have not been able to find any authority as to what would take precedence, because under the Migration Act, the time limit is 35 days. Under the High Court Rules, the time limit for an application for certiorari is actually six months, which means that does not run out until 22 November this year. On an application for mandamus, it is two months, which would run out on 22 July 2015. In a sense, my client is still within time on mandamus if that time limit takes precedence over the one in the Migration Act.
HIS HONOUR: Well, Mr Poynder, if anything is clear, it is that statutes take precedence over rules.
MR POYNDER: Yes, I take your Honour’s point, but there was something there to suggest that we had a possibility of a longer time anyway under the High Court Rules.
HIS HONOUR: Well, you need the extension of time on one view under section 486A(2). What you are telling me is you do not need an extension of time under the High Court Rules.
MR POYNDER: I take your Honour’s point. May it please your Honour.
HIS HONOUR: Very well. What I propose to do is adjourn until 2 o’clock, when I expect to be in a position to deliver reasons for judgment and make appropriate orders. I adjourn until 2 o’clock.
AT 10.40 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME
DAY
UPON RESUMING AT 1.59 PM:
HIS HONOUR: The plaintiff is a national of China. He made an application for a Business Innovation and Investment (Provisional) (Subclass 188) visa in the Significant Investor Stream. That application was refused by a delegate of the Minister for Immigration and Border Protection on 22 May 2015.
By an application for an order to show cause filed in the original jurisdiction of this Court under section 75(v) of the Constitution on 2 September 2015, the plaintiff seeks a writ of certiorari to quash the delegate’s decision, and a writ of mandamus to compel the Minister to re-determine his visa application according to law.
There is no dispute between the parties that the matter to which the application for an order to show cause relates is within the jurisdiction conferred on the Federal Circuit Court by section 476(1) of the Migration Act 1958 (Cth). That is because there is no dispute that the decision of the delegate to refuse the plaintiff’s visa application does not meet the definition of a “primary decision” so as to be excluded from the jurisdiction of the Federal Circuit Court by section 476(2)(a).
Two questions have been debated before me this morning. The application for an order to show cause having been filed in this Court outside the time limit of 35 days for the making of such an application set by section 486A(1) of the Migration Act, one question is whether this Court should be satisfied that it is in the interests of the administration of justice to make an order under section 486A(2) extending that time limit. The prohibition on remittal imposed by section 476B(2) being inapplicable, the other question is whether this Court should exercise the power conferred by section 44(1) of the Judiciary Act 1903 (Cth) to remit the matter to the Federal Circuit Court.
In Ahmed v Minister for Immigration and Citizenship [2011] HCATrans 035, Justice Gummow recorded the agreement of the parties in that case that what was then the Federal Magistrates Court would have been incapable on remittal of exercising the power conferred on this Court by section 486A(2). His Honour recorded the acceptance of the parties that remittal was therefore appropriate only if this Court first made an order under section 486A(2).
Departing from the agreed position in Ahmed, the Minister argues in this case that remittal to the Federal Circuit Court is appropriate without this Court first considering the making of an order under section 486A(2). The Minister argues that the Federal Circuit Court would be capable on remittal of exercising the power conferred by section 486A(2) to extend the time limit set by section 486A(1). The Minister argues in the alternative that the plaintiff would be subject on remittal to the equivalent time limit set by section 477(1) for the making of an application to the Federal Circuit Court, and that the Federal Circuit Court would be capable of exercising the equivalent power of extension of that time limit conferred by section 477(2).
I am unable to accept that the Federal Circuit Court would be capable on remittal of exercising the power conferred by section 486A(2). The conferral of original jurisdiction on the Federal Circuit Court by section 476(1), by reference to the jurisdiction of this Court under section 75(v) of the Constitution, cannot be read as having the effect of picking up, so as to be exercisable by that Court, the specific statutory power which is by section 486A(2) expressly conferred on this Court alone.
Nor am I able to accept that section 477 would be applicable to the remitted matter. The time limit set by section 477(1) is in terms a time limit only on the making of an application to the Federal Circuit Court. The power conferred by section 477(2) is in terms a power to extend only the time limit set by section 477(1). The application as remitted would remain one made to this Court. No direction that might be given by this Court could alter that historical fact.
As was confirmed by this Court in Pozniak v Smith [1982] HCA 39; (1982) 151 CLR 38 at page 47, the power of remittal “is intended to facilitate the course of litigation rather than to enhance or diminish a plaintiff’s rights.” Remittal to the Federal Circuit Court in the absence of an order under section 486A(2) would, in my view, effectively deprive the plaintiff of the benefit of the power of extension conferred on this Court alone by section 486A(2).
I therefore do not accept that remittal to the Federal Circuit Court would be appropriate unless I first make an order under section 486A(2).
It is necessary, then, to turn to the question under section 486A(2) of whether it is in the interests of the administration of justice to make an order extending the period for the making to this Court of the application for an order to show cause to 2 September 2015. The considerations principally relevant to my evaluation of that question are the plaintiff’s explanation for his delay in making the application, any prejudice to the administration of justice caused by that delay and the prospect of the plaintiff obtaining writs of certiorari and mandamus, which he seeks in the application were the time limit to be extended. I will address those considerations after first referring to the factual basis on which the application for an order to show cause is sought to be made.
One of the criteria for the grant of a visa of the subclass for which the plaintiff applied is that the applicant for the visa satisfies Public Interest Criterion 4020. That criterion relevantly requires that there be no evidence before the Minister that the applicant for the visa “has given, or caused to be given”, a “bogus document” to the Minister in relation to the application for the visa. The expression “bogus document” was relevantly defined in section 97 of the Migration Act, as it stood at the relevant time, to mean:
in relation to a person . . . a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit . . .
Documents provided on behalf of the plaintiff in relation to his visa application included a document which, in translation from Chinese, was or purported to be a “Tax Payment Certificate” issued on 1 July 2005 by the Tax Collection Department, Local Taxation Bureau, Wanzhou District, Chongqing City. The document was also variously referred to as a “tax receipt”. The document indicated that Chen Sixian, the plaintiff’s grandfather, had paid a specified amount of individual income tax on the transfer of property. The document stated that it had been “filled [sic] by CHEN Xuhuan”. The document was relevant to the plaintiff’s visa application in that it was put forward by him as part of a chain of evidence which demonstrated the source of funds which the plaintiff stated that he intended to invest in managed funds regulated by the Australian Securities and Investments Commission.
The delegate of the Minister subsequently wrote to the plaintiff’s migration agent, drawing the plaintiff’s attention to Public Interest Criterion 4020 and inviting response. The material part of the delegate’s letter stated:
As part of the assessment process, a verification check was conducted with Chongqing City Wanzhou District Local Taxation Bureau and we were advised that they did not issue the [tax payment certificate] and there is no such tax payment record paid by CHEN Sixian according to their office’s record. In particular, the Bureau stated that the format of the [tax payment certificate] was not used before 2014 and that they do not have any issuing officer called CHEN Xuhuan as indicated on the receipt.
In response to that invitation, the plaintiff, through his migration agent, ultimately forwarded three further documents to the delegate. The first was a copy of a tax payment certificate identical to the tax payment certificate previously provided. The second was a Notarial Certificate dated 18 May 2015 from the Changjiang Notary Public Office, Wuhan City, Hubei Province. It stated “that the foregoing copy conforms to the original Tax Payment Certificate that Zhang Zhenhua showed to . . . the notary public”, and that “the English translation of the copy tallies with the Chinese Original.”
The third document has been referred to in argument before me as a “Letter of Certification”. It is dated 19 May 2015, and is or purports to be from the Pailou Taxation Office of the Chongqing City Wanzhou District Local Taxation Bureau. It states that the tax payment certificate was ascertained to be “genuine and valid after investigation”. The document contains a contact telephone number.
There is evidence before me that the Pailou Taxation Office was the local office of the Chongqing City Wanzhou District Local Taxation Bureau which had issued the tax payment certificate, and that the central office of the Bureau had no record of the tax payment certificate having been issued.
The decision of the delegate, which was made in writing and communicated to the plaintiff’s migration agent on 26 May 2015, referred in the supporting reasons for decision to the Letter of Certification and the Notarial Certificate under the heading “Claims and Evidence”.
Under the heading “Findings and Reasons”, the delegate’s reasons for decision relevantly continued:
“A decision maker must accord due weight to the finding of a verification check. On the basis of the information and evidence before me, I find that:
(1) the document verification was conducted in a clear and direct manner and the outcome was unequivocal. When a verification check was conducted with Chongqing City Wanzhou District Local Taxation Bureau, an officer personally confirmed that there was no record of any tax payment made by a person of the name CHEN Sixian. In particular, the officer confirmed that the format of the payment receipt was not used before 2014 and the bureau did not and does not have any issuing officer named CHEN Xuhuan;
(2) the notarial certificate sent electronically from your migration agent in response to the letter inviting you to comment can only support the tax receipt being a true copy of the original document but since the notarial office is not the responsible administrative party to authenticate taxation matters, the notarial certificate is therefore unable to be accorded much weight.
On the basis of the above, I am unable to find that the documentation provided in response to the invitation for comment sufficiently strong to refute the non-genuine nature of the tax receipt. As such, I find that there is evidence that you have given, or caused to be given, a bogus document in relation to the application for visa. As such, I am not satisfied that you meet [Public Interest Criterion] 4020(1).
The delegate’s reasons for decision went on to explain that the consequence of the plaintiff being refused a visa following an assessment that Public Interest Criterion 4020(1) was not met was that the plaintiff may be precluded by other provisions of the same Public Interest Criterion 4020 from being granted another visa for a period of three years.
Two affidavits filed on behalf of the plaintiff seek to explain his delay in making the application for an order to show cause to this Court. The plaintiff states in his own affidavit that on approximately 4 June 2015, upon attempting to lodge an application for another visa, he was made aware that he was subject to a “three-year . . . exclusion period” as his previous application was refused for lack of compliance with Public Interest Criterion 4020. In his words, as recorded in that affidavit, it was the “severity and how it may jeopardise [his] credibility with Australian authorities” which then led him to “decide . . . to challenge the decision”. The other affidavit, of his migration agent, explains the balance of the delay until 13 August 2015, the date of that affidavit, by reference to the time taken to engage appropriate representation.
The Minister points out that the affidavit of the migration agent allows for an inference to be drawn that the plaintiff was advised of his ability to challenge the decision of the delegate and to do so in this Court from at least 9 June 2015. The Minister argues that there is an inadequate explanation as to why the plaintiff did not move with greater expedition. On the other hand, the Minister accepts that the delay has not been the cause of prejudice.
Given the unchallenged evidence of the plaintiff that he had made a fairly early decision to challenge the decision of the delegate, and certainly a decision made within the time limit set by section 486A(1), I do not regard the non-prejudicial delay that occurred between the making of that decision and the making of the application to this Court on 2 September 2015 as significant to my assessment of the interests of the administration of justice.
Turning to the merits of the application, the plaintiff seeks to challenge the decision of the delegate on two grounds. The first ground is that the delegate failed to have regard to a relevant consideration, or failed to perform the task entrusted to her by the statute, by not having regard to the Letter of Certification. The second is that the delegate failed to conduct a relevant inquiry into the authenticity of the tax payment certificate as the delegate did not call the telephone number stated on the Letter of Certification.
The first ground turns on drawing an inference that, in her “Findings and Reasons”, the delegate failed to consider the Letter of Certification to which she specifically referred under the heading “Claims and Evidence”. The Minister argues that such an inference cannot be drawn. The concluding statement of the delegate that she was “unable to find the documentation provided in response to the invitation for comment sufficiently strong to refute the non-genuine nature of the tax receipt” sufficiently showed that she had real regard to both the Letter of Certification and the Notarial Certificate.
Without forming any view on whether an inference should be drawn that the delegate failed to consider the Letter of Certification, it is sufficient for me to be satisfied that the drawing of such an inference cannot be concluded, on the basis of the reasons for decision alone, to be not open. It might be thought to be of some significance that the reasoning of the delegate referred specifically to the Notarial Certificate and not to the Letter of Certification in the “Findings and Reasons” section. It might also be thought to be of some significance that the delegate referred to the verification check conducted with the Chongqing City Wanzhou District Local Taxation Bureau without making any reference to the Letter of Certification having been issued by the Pailou Taxation Office.
In relation to the second ground of the application, counsel for the plaintiff acknowledges that “there is no general duty on a decision-maker to undertake [an] inquiry in addition to information provided by a visa applicant”. He seeks to rely on the observations in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at paragraph 25 to the effect that the Refugee Review Tribunal might in some circumstances fail to discharge its statutory duty to conduct a “review” were it to fail:
to make an obvious inquiry about a critical fact, the existence of which [could be] easily ascertained.
The Minister does not dispute that it is arguable that a similar failure to inquire on the part of the Minister or a delegate of the Minister might arguably amount to a failure to discharge the duty to determine a visa application imposed by section 65 of the Migration Act.
What the Minister argues is that, in circumstances where the delegate had already obtained from the Chongqing City Wanzhou District Local Taxation Bureau what she regarded as an unequivocal confirmation that the tax payment certificate could not be genuine, making a further telephone call to an unspecified person on a telephone number apparently at the Pailou Taxation Office could not be characterised as an “obvious inquiry”. To that, counsel for the plaintiff responds that the making of the earlier telephone call to the Bureau made the making of a similar call to the Pailou Taxation Office all the more obvious. There is, I think, a serious issue to be determined, and an issue which would likely be capable of illumination by further evidence.
I am satisfied that the plaintiff has an arguable case on the merits and, in the circumstances, I am satisfied that it is “necessary in the interests of the administration of justice” to extend the time for the making of his application in this Court.
I make, therefore, the following orders and directions:
MR POYNDER: If it please the Court.
HIS HONOUR: The Court will now adjourn.
AT 2.23 PM THE MATTER WAS ADJOURNED
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