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MIGRATION - Cancellation of visa - review by MRT - allegation of bogus marriage - MRT failed to make inquiries promised - no procedural unfairness established - no misconception about onus of proof - no jurisdictional error in failure to consider evidence.

Shen v Minister for Immigration [2004] FMCA 693 (29 October 2004)

Shen v Minister for Immigration [2004] FMCA 693 (29 October 2004)
Last Updated: 13 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHEN v MINISTER FOR IMMIGRATION
[2004] FMCA 693




MIGRATION - Cancellation of visa - review by MRT - allegation of bogus marriage - MRT failed to make inquiries promised - no procedural unfairness established - no misconception about onus of proof - no jurisdictional error in failure to consider evidence.




Administrative Decisions (Judicial Review) Act 1977 (Cth)

Freedom of Information Act 1982 (Cth)

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.483A, 98, 100, 101, 107, 109, 111, 359A, Part 8

Applicant VBAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 121 FCR 100

Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298

Dranichnikov v Minister for Immigration (2003) 197 ALR 389

McDonald v Director-General of Social Security (1984) 1 FCR 354

Minister for Health v Thomson (1985) 8 FCR 213

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration v Rajalingam (1999) 93 FCR 220

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S154/2002 (2003) 201 ALR 437

Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Lam (2003) 214 CLR 1

Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Applicants S134/2002 (2003) 211 CLR 441

Applicant:
HONG XIA SHEN




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG 1259 of 2004




Delivered on:


29 October 2004




Delivered at:


Sydney




Hearing date:


6 October 2004




Judgment of:


Smith FM




REPRESENTATION

Counsel for the Applicant:


Mr N Poynder




Counsel for the Respondent:


Mr R Beech-Jones




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) Application dismissed.

(2) The respondent has liberty to apply for a costs order within fourteen days.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG 1259 of 2004

HONG XIA SHEN



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This is an application filed on 29 April 2004 invoking the Court's jurisdiction under s.483A of the Migration Act 1958 (Cth) and seeking to set aside a decision of the Migration Review Tribunal made on

21 April 2004, which affirmed a decision of a delegate to cancel a Return (Residence)(Class BB), Subclass 155 (Five Year Resident Return) visa held by the applicant.

2. Section 483A gives the Court "the same jurisdiction as the Federal Court in relation to a matter arising under this Act". The relevant jurisdiction of the Federal Court is its general judicial review jurisdiction conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth) and by s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. The applicant accepts that these limitations, as interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Applicants S134/2002 (2003) 211 CLR 441 at [15] and [76-7] and in subsequent cases, require her to establish jurisdictional error by the Tribunal before she can succeed.

3. The delegate's decision, which was affirmed by the Tribunal, applied a power conferred by s.109 of the Migration Act after deciding that "there was non-compliance by the holder of a visa" and after "having regard to" the list of discretionary considerations prescribed in Migration Regulation 2.41. The allegation of "non-compliance" which was found to be established was a failure to comply with the requirement of s.101 that "a non-citizen must fill in his or her application form in such a way that ... no incorrect answers are given." The effect of ss.98, 100 and 111 is that a breach of this obligation can occur if an application form is filled in by someone else on behalf of the applicant, even if the applicant did not know that the answer was incorrect, and whether the non-compliance was deliberate or inadvertent. However, it is clear that these matters may have a bearing on the discretionary considerations whether to cancel.

4. In the present case, the cancellation was based on incorrect answers allegedly in an application signed by the applicant on 13 February 1996 upon which she was granted a spouse visa based on a marriage to an Australian citizen, Qian Zhang on 2 February 1996. The incorrect answers were:

i) saying "no" to the question "have you previously been married or been in a de facto/common-law relationship?" and

ii) signing a declaration that "I did not marry or enter a de facto/common law relationship to become eligible for migration to Australia".

5. A notice setting out the matters required by s.107 of the Act preliminary to cancellation action was sent to the applicant on 23 August 2002. It referred to the above statements in her 1996 spouse application and continued:

You have then claimed that you first met your husband, Qian Zhang, on 29 December 1995 and married five weeks later on

2 February 1996.

Information has since become available to the Department indicating:

* That your marriage to Qian Zhang was not genuine, but contrived to become eligible for migration to Australia.

* That you have never lived with Qian Zhang in a marital relationship.

* That at the time of your marriage to Quian Zhang on

2 February 1996, you were still in a continuing marital or defacto relationship with Rong Hua. You were allegedly married in 1994 or 1995, although the marriage was not registered. In any case you have allegedly been in a defacto relationship with Rong Hua since 1994.

* That you have allegedly carried on your relationship with Rong Hua after your arrival in Australia on 1 July 1996, travelling back to China on six (6) occasions since

17 December 1996 (a few months after arriving in Australia).

Departmental records show that you have lodged a sponsorship for Rong Hua on 27 January 1999 claiming that you and Rong Hua were married on 15 January 1999. Wedding photographs have been provided in support of your sponsorship of Rong Hua. However, information available to the Department indicates that the wedding photos that have been provided are the old wedding photos that were taken on your and Rong Hua's wedding in 1994 or 1995.

6. In short, it was alleged that the Department had photographic evidence that the applicant had entered a marital relationship in 1994 or 1995 with the man she had in 1999 sought to sponsor to migrate to Australia on the basis of a 1999 marriage, and that the obvious inference was that her short 1996 marriage to Qian Zhang was contrived to obtain Australian residence. Given the seriousness of the allegation, a weighty case for the discretion to cancel would obviously have arisen if it were accepted by a decision-maker.

7. The applicant engaged a migration agent, who obtained an extension of time so as to obtain a copy of her 1996 application under the Freedom of Information Act 1982 (Cth). The applicant then, on

22 January 2003, responded:

I knew Mr Rong Hua in 1994 and later became close friends but not de facto partners, which means we dated, visited each other's home but never lived together. China was still a bit traditional at that time and very few people lived together before marriage. Rong Hua and I never had any relationship during this period of time.

We were no longer close friends in 1995.

I knew Mr Quan Zhang in early 1996. Two months later we got married and lodged my permanent resident visa application in Shanghai. I was granted a visa in May 1996 and arrived in Australia in July 1996. We were separated in the end of 1996. We applied for divorce in 1998 and got the divorce certificate on 04/05/1998

Mr Hua and I started contacts in December 1997 when I went back to China for a holiday. We kept contacts and it was until 15/01/1999 that we got married and lodged the visa application for him. The application was refused on 23/02/2000. Hua was not happy and our relationship was broken. I lodged a divorce application in October 2002 and I am still waiting for the outcome of this application. ...

8. She was then sent on 3 February 2003 a letter with an enclosed photograph and calendars, which said:

In the interests of natural justice, you are provided with an opportunity to provide comments against the following statements:

* That in a wedding photo lodged with the Department allegedly taken during your marriage to Mr Rong Hua on

15 January 1999 (see attached photocopy), a calendar in the background shows the month of February with the first calendar day being on a Wednesday. As determined in the attached documents, a February calendar month with its first day falling on a Wednesday would most likely have been in 1995.

* That the photograph and background calendar (mostly likely for 1995) may be used as evidence for the allegation in the NOI that you and Mr Rong Hua have in fact been married in 1994 or 1995 and not on 15 January 1999, as you and Mr Hua have alleged.

9. The applicant's response on 6 February 2003 was to say:

With the copy of the photo you gave me, I now recall that it was the engagement ceremony for Mr Rong Hua and me. It should be in 1995 but I cannot remember the exact date of it. From the way we wore clothes, it should be early 1995.

Even if our relationship developed to that level - engagement, we were still not de facto partners at that time. In China it was a breach of law for a couple to live together without marriage registration. A child born out of wedlock cannot register his or her household and therefore cannot claim any social benefits.

After that engagement party we were separated for some reasons...

10. The delegate decided to cancel her visa on 5 March 2003. His key finding was that "the allegation that the visa holder was previously married in 1995 to be substantiated by satisfactory evidence." He explained this in a passage which describes the photograph in question:

The visa holder has acknowledged in her initial reply that she knew Rong Hua in 1994, subsequently became close to each other, dated and visited each other's home. She later admitted, when presented with a photocopy of her wedding photo with Rong Hua on their supposed 1999 marriage, that the photo was in fact taken on the occasion of her engagement to Rong Hua in 1995.

I consider on the evidence that the visa holder and Rong Hua were married in 1995 as alleged. In coming to this conclusion,

I put substantial weight on the wedding photo of the visa holder's and Rong Hua's marriage presented to the Department, which photo was admittedly taken in 1995. The photo was presented as a wedding photo, not as an engagement photo in 1995 as now claimed by the visa holder. The photo can in fact speak for itself. It appears to me that the visa holder is wearing a wedding dress in the photo, with a wedding veil, and Rong Hua in a suit, with the third person in the photo possibly a witness to the marriage. And as the visa holder admits that this photo, a wedding photo

I consider and which was tendered to the Department as a wedding photo, was taken in 1995, I have come to the conclusion that the marriage between the visa holder and Rong Hua took place in 1995. Regarding the claim that the visa holder and Rong Hua married in 1999, I consider it likely that it may have been a re-marriage for them for migration purposes, with the apparent mistake of presenting a 1995 wedding photo.

11. The applicant appealed to the Tribunal on 12 March 2003. In support of her application, her migration agent forwarded what was claimed to be a "certificate of her marital status before she married to Quian Zhang" issued by the Ruijin Eriu Neighborhood Committee, the People's Government, Luwan District, Shanghai on 26 January 1996 stating "marriage status: Never Married", which was said to have been necessary before marrying Mr Zhang.

12. The Tribunal then pursuant to s.359A of the Act served on the applicant an invitation to comment which identified the allegations against the applicant. Her agent's response included the statement:

"I am advised that she knew Mr Hua in 1994 and their relationship developed to such a level that they had an engagement ceremony in early 1995 as shown in one of the photos they provided to the Department." It also claimed "My client understands that Mr Hua provided incorrect and misleading information in his spouse application. However she totally had no knowledge of it. He was the person that prepared all the application forms and he was punished for it by having his application refused."

13. The applicant attended a hearing before the Tribunal on 17 September 2003, accompanied by her migration agent. The transcript is in evidence before me, and I have read all of it.

14. The Tribunal's decision was handed down on 21 April 2004. In its reasons it identified the relevant statutory provisions and recounted the history of the matter which I have set out above. Over more than four pages, it summarises the course of questioning and answers given at the hearing. Its significant reasoning is found in the following paragraphs:

31. This review raises the following issues:

a) Did the review applicant breach section 101 of the Migration Act?

b) If there was non-compliance with section 101, is it appropriate that the visa be cancelled? This requires the Tribunal to consider whether this is the correct or preferable decision in the context of all the relevant circumstances, having regard to regulation 2.41 and MSI 368.

32. In the event that the Tribunal finds that a breach has occurred, it must then consider whether it is appropriate that the visa be cancelled.

33. The Tribunal has found that the review applicant breached section 101 of the Act, and the discretion to cancel the visa under section 109 of the Act accordingly arises for consideration.

34. In considering whether or not to exercise the discretion available to it to cancel the visa, the Tribunal has had regard to Regulation 2.41 which sets out the prescribed circumstances that are to be taken into account for the purposes of paragraph 109(1)(c) of the Act. These are discussed under the following headings:

The correct information

The Tribunal prefers the evidence presented by the Department to that of the review applicant. There has been no objective evidence to rebut the claims of the Department. Had the true situation been declared to the Department she would not have been successful in her application.

The content of the genuine document

The review applicant has sought to establish that the photo was not a wedding photo as initially claimed but was in fact an engagement photo. She could neither explain why her husband would be so confused as to use such an old photo not could she provide an satisfactory explanation for the way she was dressed in the photo. Her explanation for the clothes worn at the alleged engagement was that they had hired formal clothes and used what was supplied.

The likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document

Clearly the application for her initial spouse visa would have been unsuccessful had the Department been fully aware of her actual circumstances at the time.

The circumstances in which the non-compliance occurred

Both she and the application for the spouse visa held out the old photo as a current photo of a very recent event to support their claims that they had recently married. By her own evidence the review applicant confirmed that the documentation was completed and signed by them together in China. The review applicant did not make the claim that the photo was a photo of the alleged engagement until the second opportunity for her to explain her conduct.

In the review applicant's letter to the Department dated 22 January 2003 she makes no mention of an engagement to Hua. In fact she denies any relationship with him other than being friends who dated. She stated that they were no longer close friends in 1995.

That claim cannot stand against the subsequent claim by her that they were engaged and the photo was of the engagement.

15. On my first reading of this passage, I was concerned to identify how the Tribunal reached its conclusion on the "first" issue expressed in the first line of paragraph 33. However, no ground of review was argued that the Tribunal did not actually address that issue, and in my view a fair reading of its subsequent reasoning sufficiently indicates why the Tribunal found that the applicant had breached s.101. As I read the reasons, the Tribunal correctly recognised that the question whether the photo was of a wedding with Mr Hua in early 1995 went to the heart of both the issue of breach of s.101 and an assessment of culpability for the purposes of the discretion to cancel under s.109. It was reviewing a decision in which the delegate had firmly made an adverse finding based significantly on the appearance of the photo and how it had been presented to the Department. In the proceedings before the Tribunal the applicant had presented evidence seeking to persuade the Tribunal to reach a different conclusion. In these circumstances, I consider that it is appropriate (giving effect to what the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291) to find the Tribunal's reasoning on the first issue in its discussion in paragraph 34 which I have set out above. I did not understand either counsel to have argued against this.

16. Before me, counsel for the applicant made submissions in support of 7 "particulars" of a general allegation that "the Tribunal exceeded jurisdiction in making the decision to affirm the Respondent's decision to cancel the Applicant's visa". I shall set out each "particular" and deal with them below.

b) The Tribunal erroneously placed an onus of proof on the applicant to establish to the satisfaction of the Tribunal that she had not made incorrect statements in her application for a spouse visa lodged on 14 February 1996.

17. At the commencement of its reasons, the Tribunal said:

9. The power to cancel a visa is discretionary under section 109 of the Act. The Federal Court has ruled that the onus on proving a falsity of statements for the purpose of the migration legislation lies with the Minister and the standard of proof required in relation to such a breach, because of the serious nature of the consequences, involves a "high degree of satisfaction": Sing v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Sackville J, 6 December 1994).

18. The applicant's counsel submitted that "the authority of this decision must now be open to doubt", referring to High Court authority discussed by Sackville J in Minister for Immigration v Rajalingam (1999) 93 FCR 220 at 231-233 which discouraged reference to civil standards of proof when weighing evidence in refugee cases.

19. It is correct that the courts have generally preferred that conflicts of evidence should be resolved by administrative tribunals by reference to how the legislation frames the issue for decision rather than to a standard or onus of proof (c.f. McDonald v Director-General of Social Security (1984) 1 FCR 354 at 358, 365-6, 369). I do, however, note that Sackville J in Rajalingam at 239 [61] states: "Although the civil standard of proof is not irrelevant to the process [of fact-finding by the RRT], the RRT cannot simply apply that standard to all fact-finding." There are also opinions suggesting that reference to an onus of proof may be appropriate in administrative decisions on the imposition of penalties or disciplinary sanctions (c.f. Minister for Health v Thomson (1985) 8 FCR 213 per Beaumont J at 223 c.f. Fox J at 216).

20. In any event, the placing by the Tribunal of an "onus of proving a falsity" on the Department, would not have worked against the applicant in the present case, and the applicant did not submit this. Rather, the submission was that the Tribunal in fact did the opposite to how it instructed itself, and placed an onus on the applicant to show that the statements in her visa application were correct. This was said to be shown in several statements by the Tribunal member during the hearing, one of which was referred to by it in its reasons:

The Tribunal pointed out that the only evidence before it was her statements and a certificate from China to the effect that there had been no recording of a marriage between the review applicant and Hua. The Tribunal further pointed out that the onus of proof was on the review applicant to establish her case in response to the Department. The Tribunal pointed out that the statements made by her are not supported by any objective evidence to rebut the claims of the Department." (my emphasis)

21. The applicant's counsel also submitted that the error was shown in the reasoning extracted above, where the Tribunal said "The Tribunal prefers the evidence presented by the Department to that of the review applicant. There has been no objective evidence to rebut the claims of the Department." (my emphasis)

22. In my view it is important to assess the Tribunal's reasoning process as shown in the reasons it provided, and it is dangerous to try to interpret these by reference to the Tribunal member's statements during the hearing. His urging of the applicant at the hearing to "prove" her case, was in a context where, as is apparent from a full reading of the transcript, the member at all times was expressing dissatisfaction with answers (often unresponsive) to his questioning and was concerned that she should appreciate the weight of the evidence tending against her version of events. I am not persuaded that his reference to an "onus of proof" on the applicant was intended to do more than point out the evidentiary position she was in. In terms of adversarial litigation, an "evidentiary" onus of proof had been raised against her. His language may have been unfortunate at times, but I do not conclude that it establishes the jurisdictional error submitted.

23. I consider that the passage in the Tribunal's reasoning at [34] set out above does not show the adoption of an erroneous opinion that cancellation could occur unless the applicant proved that the visa application statements were correct. Rather, its reasoning shows that it was positively persuaded by the material gathered and presented against the applicant by the Department, and that it found this material more persuasive than the evidence presented by the applicant. I am unable to find jurisdictional error in this approach to the evidence.

c) In arriving at its conclusion that the applicant had been married to Mr Rong Hua in 1994 or 1995 and that the marriage had never been registered, the Tribunal failed to consider or to make a finding on the claim made by the applicant that in China a couple cannot live together unless they are in a registered marriage. The Tribunal also failed to make a finding on a certificate provided by the applicant from the Shanghai authorities that in January 1996 her registered status was "Never married", which was conclusive evidence that she could not have married Mr Hua in 1994 or 1995.

d) In arriving at its conclusion that the applicant was wearing a wedding dress in a photograph taken with Mr Hua in 1994 or 1995, the Tribunal failed to consider or to make a finding on the claim made by the applicant that in China it is the custom to celebrate an engagement by wearing what to Westerners might appear to be a wedding dress.

e) In arriving at its conclusion that the applicant had completed and signed documentation relating to Mr Hua's application for a spouse visa in January 1999 and therefore knew of the contents of the photograph provided with the documentation, the Tribunal failed to consider or to make a finding on the claim made by the applicant that she had only signed the form 28 sponsorship form and not the Form 47 application form, and that she had not been aware of the contents of the Form 47 or the accompanying photograph.

24. The applicant's counsel addressed these grounds together under a heading "failure to make findings'. He pointed to "primary pieces of evidence" provided by the applicant in relation to each of the points identified in these grounds, and submitted that each represented a "critical element of her claim" so that a failure to make an express finding on it was a jurisdictional error "of the type referred to in Dranichnikov v Minister for Immigration (2003) 197 ALR 389 per Gummow and Callinan JJ at [23-24] and Kirby J at [87-89] (see also NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [56] to [63]).

25. I am not persuaded that the Tribunal did not take into account any of these "pieces of evidence" when it decided to reject the explanations for the 1995 wedding photo put forward by the applicant. Moreover, and more significantly, I accept the submission of counsel for the Minister that any failure to address them would not amount to jurisdictional error. The task of the Tribunal in the present matter had no direct analogy with the situation of the RRT when identifying and assessing claims for refugee status. The matters raised by the applicant's counsel in this submission all went to one basic factual issue for the Tribunal's determination: which was whether the applicant had married Mr Hua in 1995. The Tribunal identified and addressed this issue. I am unable to characterise any of the pieces of evidence or arguments presented by the applicant in support of a negative answer to this factual question as being "claims" which the Tribunal's jurisdiction required it to address individually. I consider that the applicant's submissions on these grounds were no more than an invitation to explore the merits of the factual conclusion of the Tribunal on an issue which it correctly identified.

f) The Tribunal failed to accord natural justice to the applicant and it failed to comply with s 360 of the Act in the following manner:

i) During the hearing of the application the Tribunal undertook to obtain advice on the issue of dress custom at engagement ceremonies in China and allow the applicant to respond to any adverse information. The Tribunal did not obtain any such advice, nor did it notify the applicant that the issue of dress was still relevant, thereby depriving the applicant of the opportunity to make any further submission on the matter.

ii) During the hearing of the application the Tribunal undertook to obtain a copy of the file relating to the application for a spouse visa by Mr Hua in order to ascertain whether the applicant had signed the documentation. The Tribunal did not obtain the file, nor did it notify the applicant that the issue of her signature of the documentation was still relevant, thereby depriving the applicant of the opportunity to make any further submissions on the matter.

26. This ground of review has caused me the most concern. There was no real dispute between counsel that the transcript indeed shows the Tribunal clearly making these undertakings, albeit in informal language. It is not necessary for me to set out the passages in which they were made. Moreover, counsel for the Minister did not dispute that the Tribunal published its decision without obtaining the Department's file on the 1999 application, and without obtaining advice on "what people normally do" in China when dressing for engagement photography. It also appears not to have sent the copy of the Certificate tendered by the applicant for verification at Shanghai as it promised at the hearing - but this failure is not relied upon by the applicant.

27. Prior to Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Lam (2003) 214 CLR 1, I might have been prepared to infer that the Tribunal's failure either to follow the procedure undertaken, or to notify the applicant of an intention not to do so, resulted in a failure to accord procedural fairness, without evidence from the applicant explaining what unfairness had resulted. However, I consider that Lam is squarely comparable with the present situation and that it requires the present ground to be dismissed in the absence of any evidence from the applicant or her migration agent showing that they had relied upon the Tribunal's promises in some pertinent manner, or that the failure to warn that the additional material would not be obtained had resulted in some other tangible disadvantage in their presentation of the applicant's case to the Tribunal.

28. In Lam (supra) the applicant was told by a decision-maker contemplating the cancellation of his visa that the Department would contact the carer of his children when assessing their best interests, but an adverse decision was taken without doing this and without notifying the applicant that it would not do so. No evidence was led from the applicant as to his expectations arising from the representation as to procedure, nor as to what he would have done if he had been warned. Gleeson CJ said at 13:

[36] The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision-making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment.

[37] A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu [23] was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs [24] . A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

[38] No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant's children.

29. McHugh and Gummow JJ said at 34:

[106] The applicant by the statement in the letter to him of

7 November 2000 did not acquire any vested right to oblige the Department to act as it indicated, at peril of the ultimate decision by the Minister exceeding his jurisdiction under the Act. It was not suggested that in reliance upon that letter the applicant had failed to put to the Department any material he otherwise would have urged upon it. Nor was it suggested that, if contacted, the carers would have supplemented to any significant degree what had been put already in the letter of 17 October 2000. The submission that the applicant, before the making by the Minister of his decision, should have been told that the carers were not to be contacted, thus lacks any probative force for a conclusion that the procedures so miscarried as to occasion a denial of natural justice.

30. Hayne J said at 38

For present purposes, it is enough to say that even if the Department's letter engendered some relevant legitimate expectation, departure from it, where it is accepted that neither the expectation nor departure from it affected the course which the applicant pursued, gives no ground for relief. He was afforded a full opportunity to be heard. The Department's letter raised no new matter to be taken into account in making the impugned decision, and it did not divert attention in any way from the relevance of, or weight to be given to, the effect that cancellation of the applicant's visa would have on his children. Unlike Teoh, this was not a case where the course of decision-making could be said to have diverged from any announced policy to be taken to account in making the relevant decision.

31. Callinan J said at 48:

[149] I return now to the facts of this case. In my opinion, what is fatal to the applicant's claim here is that he was unable to demonstrate that there was any material that he could have put before the respondent which was either not already in the respondent's hands, or which might have influenced the respondent to decide his case differently. That he might have liked to have had a further opportunity to repeat what he had already said, or to advance the same argument differently or more emphatically is not to the point and cannot avail him.

32. I consider that these points are all applicable to the case before me. Although the applicant was on full notice that the respondent would be relying on this reasoning in Lam, she presented no evidence showing how the failure of the Tribunal to follow up its undertakings, or to warn when it decided not to, resulted in a "practical injustice". No evidence was led that there was reliance on the Tribunal's undertaking such that there was some step which she would have taken, or some additional evidence or submission which she would have presented if she had been warned that the Tribunal had decided that it was not necessary to make the further inquiries.

33. Counsel for the applicant attempted to answer this objection by taking me to Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298 at [91] and [97], where the Full Court rejected an argument that in all natural justice cases an applicant must demonstrate by evidence that some practical unfairness accrued to him as a result of the procedures which were adopted. However, I accept the submission of counsel for the respondent, that the Court in Dagli was rejecting this proposition only in relation to a case "of a very different kind" from Lam, where there was a failure to afford an applicant an opportunity to rebut adverse material put against him (see [88]). In effect, the Court was saying that where significant adverse material was taken into account without an opportunity to respond, then the unfairness will normally be apparent and will not need to be explained by evidence from the applicant. I do not read anything in Dagli as diminishing the applicability of the above passages from Lam to the matter now before me. In the present case the applicant had ample opportunity to respond to the adverse material put against her, and has not shown that she was disadvantaged by the Tribunal's failure to follow its undertaking to inquire further into that material.

34. Counsel for the applicant also submitted that evidence from the applicant was not needed, since I should conclude from the transcript itself that the giving of the undertakings by the Tribunal mislead the applicant into thinking that additional evidence or submissions would not be necessary, and that she would have left the hearing with the impression that her explanations had been accepted by the Tribunal unless it obtained adverse material in the course of its promised inquiries.

35. If I were satisfied that misleading statements were made as to what remained as "live" issues, then the case would be distinguishable from Lam (c.f. Callinan J at 214 CLR 48 [150] and [151], and Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S154/2002 (2003) 201 ALR 437 at [28-29]). The Tribunal would also have been in breach of its obligations under s 360(1) of the Act to give the applicant an opportunity to give evidence and present arguments on "issues arising in relation to the decision under review" (see NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456 at [83-87], also Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33-37], and Applicant VBAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 121 FCR 100 at [54], and [62].

36. However, I am unable to read the transcript as carrying this misleading suggestion. In my view, a full reading of the transcript suggests that at no time could the applicant have been under any doubt that the Tribunal considered that the evidence and reasoning accepted by the delegate presented a powerful case for a cancellation of her visa. Absent evidence from her that at the conclusion of the hearing she in fact believed that the Tribunal had accepted her explanation for the "wedding photo" and how it had been presented to the Department, I am not persuaded that she has suffered any practical injustice as a result of the Tribunal deciding that it did not need to conduct the additional inquiries nor warn the applicant that it had so decided.

37. I therefore reject all the grounds argued before me, and dismiss the application. I shall give the respondent liberty to apply for a costs order within 14 days.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 29 October 2004
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