Chen v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 330
•11 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chen v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 330
File number(s): SYG 2140 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 11 March 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether applicant was included as member of family unit of partner’s student visa application - no jurisdictional error established – application dismissed. Legislation: Migration Regulations 1994 (Cth) reg 2.07AF, Sch 2 cl 500.311 Cases cited: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 24 February 2025 Place: Parramatta Applicant: Self-represented litigant via Webex Solicitor for the Respondents: Mr M. Vethecan of Clayton Utz ORDERS
SYG 2140 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MEI-YU CHEN
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
11 MARCH 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs in the sum of $7,467.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 14 September 2020, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 19 August 2020. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Student (Temporary) (class TU) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
LEGISLATION
In 2020, cl 500.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) provided:
The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:
(a)the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:
(i)the primary person’s application under subregulation 2.07AF(3); or
(ii)information provided in relation to the primary persons application under subregulation 2.07AF(4); or
(b)the applicant became a member of the family unit of the primary person:
(i) after the grant of the student visa to the primary person; and
(ii) before the application was made.
In 2020, reg 2.07AF of the Regulations provided:
(1)This regulation applies in respect of an application for a Student (Temporary) (Class TU) visa.
(2)Despite anything in regulation 2.07, an application may be made on behalf of an applicant.
(3)An application by a person who seeks to satisfy the primary criteria (the primary applicant) must include:
(a) the name, date of birth and citizenship of each person who is a member of the family unit of the applicant at the time of the application; and
(b) the relationship between the person and the applicant.
(4)If a person becomes a member of the family unit of the primary applicant after the time of application and before the time of decision, the primary applicant must inform the Minister, in writing, of:
(a) the name, date of birth and citizenship of the person and
(b) the relationship between the person and the primary applicant.
(5) Subregulations (3) and (4) apply:
(a)whether or not the member of the family unit is an applicant for a Student (Temporary) (Class TU) visa; and
(b)if the member of the family unit is not an applicant for a Student (Temporary) (Class TU) visa — whether or not the member of the family unit intends to become an applicant for a Student (Temporary) (Class TU) visa.
FACTUAL BACKGROUND
On 5 August 2016, the applicant first arrived in Australia on a working holiday visa.
On 4 September 2018, the applicant applied for a Student (Temporary) (class TU) (subclass 500) visa. The applicant stated in the application form that she wanted “to join the student visa of Rui Zhang, my de facto partner”, and that she and Mr Zhang commenced a formal relationship in October 2016.
Mr Zhang had lodged a student visa application, and was granted a student visa, in January 2018. Mr Zhang did not declare the applicant as a member of his family unit in his student visa application.
On 10 October 2018, a delegate of the first respondent refused to grant the applicant a student visa on the basis that she did not satisfy cl 500.311 of Schedule 2 to the Regulations.
On 23 October 2018, the applicant applied to the Tribunal for review of the delegate’s decision.
On 13 July 2020, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments on 28 July 2020.
On 28 July 2020, the applicant attended the hearing before the Tribunal with the assistance of a Mandarin interpreter.
On 19 August 2020, the Tribunal made a decision affirming the delegate’s decision not to grant the visa.
TRIBUNAL’S DECISION
The issue identified by the Tribunal was whether the applicant satisfied cl 500.311 of Schedule 2 to the Regulations.
The Tribunal discussed with the applicant her relationship with Mr Zhang. The applicant stated that she became the girlfriend of Mr Zhang, and their relationship commenced, before Mr Zhang applied for a student visa in January 2018.
The applicant acknowledged that she was not included as a member of the family unit in Mr Zhang’s student visa application in January 2018. She stated this was the fault of her representative. The applicant added that she continued to be in a relationship with Mr Zhang and they planned to marry.
The Tribunal, after considering the evidence before it, was not satisfied the applicant met cl 500.311. Accordingly, the Tribunal affirmed the delegate’s decision.
PROCEEDINGS IN THIS COURT
Application and steps up to 23 February 2025
On 14 September 2020, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. The application included one ground as follows (as written):
1.DIBP AND AAT OFFICERS ARE NOT SATISFIED THAT CLAUSE 500.311 IN SCHEDULE 2 OF THE MIGRATION REGULATIONS IS SATISFIED.
On 8 October 2020, a registrar made procedural orders, including that the applicant file and serve any amended application and a written submission by 7 January 2021. The applicant did not file or serve any documents in response to this order.
On 5 September 2024, a registrar made procedural orders, including that upon the matter being listed for hearing the applicant file and serve any amended application, written submission and further evidence at least 28 days before the hearing.
On 12 December 2024, the Court notified the parties that the matter was listed for hearing on 24 February 2025. The applicant did not file or serve any further materials prior to the hearing on 24 February 2025.
On 16 December 2024, the applicant notified the Court that she was in Taiwan. She asked if she could attend the hearing by video link. I granted the applicant permission to appear at the hearing by video link.
Hearing on 24 February 2025
At the hearing on 24 February 2025, the applicant appeared before the Court via Webex, assisted by an interpreter in the Mandarin language. Marcus Vethecan from Clayton Utz appeared for the first respondent.
At the commencement of the hearing, I explained to the applicant that the Court’s role was limited to considering whether there was a jurisdictional error, which I described as a significant error or mistake, in the decision of the Tribunal dated 19 August 2020. I explained the main categories of jurisdictional error. I explained that, if the applicant wants to win the Court case, she must persuade the Court there is a significant mistake or error in the Tribunal’s decision.
The applicant recalled the Tribunal’s decision and her application to the Court to challenge the Tribunal’s decision. The applicant did not have with her either:
(a)a copy of the Tribunal’s decision; or
(b)the Court Book filed by the first respondent in October 2020.
This was despite the fact that, according to Mr Vethecan, the first respondent posted a physical copy of the Court Book to the applicant on the day it was filed, and emailed an electronic copy to the applicant shortly after a call-over in September 2024. I discussed with the applicant whether she had access to the email address to which the first respondent emailed an electronic copy of the Court Book in September 2024. The applicant responded that her agent operated the email address, the applicant did not have access to the email address, and the agent had not forwarded to the applicant the email attaching the Court Book.
I invited the applicant to explain to me why there was a significant mistake or error in the Tribunal’s decision. The applicant explained that she and her boyfriend came to Australia in 2016, they asked an agent to lodge a student visa application with the boyfriend as the primary applicant and the applicant as a member of the family unit, but the agent did not include the applicant in the application. The applicant said they were let down by the agent.
It appeared to me that, even if there was a jurisdictional error in the Tribunal’s decision, a remittal of the matter to the Tribunal would be futile since the boyfriend’s student visa granted in January 2018 probably ended a few years ago. In this context, I asked the applicant what she wanted to achieve from this Court proceeding. The applicant stated that she should not bear the consequences. This answer did not make clear to me what the applicant wanted to achieve from the Court proceeding.
CONSIDERATION
The ground in the application is not sufficiently particularised to be the subject of a meaningful response and, for that reason alone, should be dismissed: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
Because the applicant did not have legal representation in the Court proceeding, I have read the Tribunal’s decision to consider whether the Tribunal made an obvious error.
In light of the applicant’s evidence to the Tribunal, the applicant could not satisfy cl 500.311(a) of Schedule 2 since she was not “included in …the primary person’s application” under reg 2.07AF(3) or in “information provided in relation to the primary person’s application” under reg 2.07AF(4): cl 500.311(a). There was no error by the Tribunal in not being satisfied that the applicant met cl 500.311(a).
Although the Tribunal did not make a finding as to whether the applicant satisfied cl 500.311(b), as stated in the first respondent’s written submission, cl 500.311(a) and (b) are mutually exclusive. An applicant cannot satisfy both sub-clauses. The applicant claimed she satisfied cl 500.311(a). She never claimed she satisfied cl 500.311(b). Therefore, it was not necessary for the Tribunal to consider whether the applicant satisfied cl 500.311(b).
If there was a jurisdictional error in the Tribunal’s decision, a question may arise as to whether relief should be refused on discretionary grounds because a remittal of the matter appears futile in circumstances where the visa to which the applicant wanted to be joined as a member of the family unit probably expired several years ago. Since there is no jurisdictional error in the Tribunal’s decision, it is not necessary to consider whether relief should be refused on grounds of futility.
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs. Mr Vethecan sought an order that the applicant pay the first respondent’s costs in the sum of $7,467. This was the scale amount at the time the applicant commenced the Court proceeding in March 2021. The applicant did not oppose this amount. It is appropriate to make an order in this amount.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 11 March 2025
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