Jiang v Minister for Immigration
[2020] FCCA 2696
•25 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JIANG v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2696 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant found not to be enrolled at the time of the Tribunal decision – whether the decision was unreasonable considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.65, 248, 349, 359AA |
| Cases cited: ANA18 v Minister for Home Affairs [2018] FCA 1854 Minster for Immigration and v Sharma [1999] FCA 31 Singh v Minister for Immigration [2019] FCA 1350 SZBEL v Minister for Immigration (2006) 228 CLR 152 WZAVW v Minister for Immigration [2016] FCA 760 |
| Applicant: | ZEHUA JIANG |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3124 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 September 2020 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr A. Moss of Clayton Utz |
ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application filed on 9 October 2017 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3124 of 2017
| ZEHUA JIANG |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction
The applicant, Mr Jiang, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 4 September 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Jiang a temporary student visa. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 18 September 2019, which I adopt.
Background
On 7 March 2017, Mr Jiang applied for the student visa on the basis of his enrolment in an Advanced Diploma of Translating.[1]
[1] CB 1 to 18 and see 6.
On 4 April 2017, the delegate refused the application as she was not satisfied Mr Jiang satisfied the genuine entry and stay as a student criteria.[2]
[2] CB 20 to 27.
On 18 April 2017, Mr Jiang applied to the Tribunal for review of the delegate's decision.[3]
[3] CB 28 and 29.
On 30 August 2017, Mr Jiang appeared before the Tribunal to give evidence and present arguments. At the hearing, the Tribunal raised with Mr Jiang, pursuant to s.359AA of the Migration Act 1958 (Cth) (Migration Act), that:
a)"PRISMS records" indicated that Mr Jiang was not currently enrolled in a course;
b)the PRISMS records and Mr Jiang's certificate of enrolment for his course in Diploma of Advanced Translating both recorded that he ceased being enrolled in that course on 20 August 2017; and
c)the relevance of the above matters was that it may lead the Tribunal to find that Mr Jiang did not meet the enrolment criteria and therefore that he was not entitled to the grant of a student visa.[4]
[4] CB 47 to 51 and 82 at DR [8].
In response to the matters raised by the Tribunal, Mr Jiang indicated that he wanted to enrol in a finance course. The Tribunal raised a number of concerns with Mr Jiang as to whether he was a genuine student for entry and stay regarding his wish to now enrol and study a finance course after 9 years in Australia.[5]
[5] CB 82 at [9].
By email dated 1 September 2017 from Mr Jiang's representative to the Tribunal, attaching a statement of Mr Jiang, he explained why he wanted to enrol in a Bachelor of Finance.[6]
[6] CB 74 to 76.
As noted above on 4 September 2017, the Tribunal affirmed the delegate's decision.[7]
[7] CB 77 to 83.
Tribunal decision
The Tribunal noted that:
a)the issue before the delegate was whether Mr Jiang met the criterion in clause 500.212 of Schedule 2 to the Migration Regulations 1999 (Cth) (Migration Regulations), the genuine student requirement but that the issue then before the Tribunal was whether Mr Jiang met the enrolment requirements for a student visa;[8]
b)clause 500.211(a) of Schedule 2 to the Migration Regulations requires that at the time of decision an applicant is enrolled in a course of study. Mr Jiang did not claim to meet any of the other criteria in clause 500.11;[9]
c)Mr Jiang provided a certificate of enrolment to study an Advanced Diploma of Translating (Certificate) which ceased on 20 August 2017;[10]
d)prior to the hearing before the Tribunal, Mr Jiang was invited to provide evidence of current enrolment but did not do so other than the Certificate;[11]
e)at the hearing, it advised Mr Jiang that a current certificate of enrolment was required for the grant of a student visa and that he could "enrol on his student visa". The Tribunal provided Mr Jiang until 1 September 2017 to respond;[12] and
f)Mr Jiang did not provide a further certificate of enrolment in a course of study.[13]
[8] CB 82 at DR [13].
[9] CB 82 at DR [14].
[10] CB 82 and 83 at DR [16] and see CB 71.
[11] CB 82 and 83 at DR [5] and [16].
[12] CB 82 at DR [8] to [10] and [16].
[13] CB 82 and 83 at DR [10] and [16].
As Mr Jiang did not have a have a current certificate of enrolment, the Tribunal found that he did not satisfy the criteria for the grant of the student visa and affirmed the delegate's decision.[14]
[14] CB 83 at DR [18].
The current proceedings
These proceedings began with a show cause application filed on 9 October 2017. Mr Jiang continues to rely upon that application. There are two grounds in it:
1. The manifest unreasonableness is the Tribunal accepts "the applicant was a genuine applicant for entry and stay as a student while studying the Bachelor of Commerce and Advance Diploma of translating" which is totally against the major reason for immi refusal decision. However, the Tribunal still insist on affirming the decision under review.
2. Another manifest unreasonableness is the Tribunal should focus on whether the applicant met criterion in cl.500.212, of Schedule 2 to the Migration Regulation 1994 when the applicant applied for the students visa rather than other regulations." (Ground Two)
(errors in original)
The application is supported by a short affidavit filed with it. I also have before me as evidence the court book lodged on 4 December 2017. This matter was originally docketed to Judge Barnes, however, at a callover on 14 March 2019, her Honour transferred the matter to me for hearing today.
Only the Minister filed prehearing submissions in accordance with procedural orders made by a Registrar. I invited oral submissions from Mr Jiang this afternoon. He expressed concern that what he describes as his benefits were not protected by the Tribunal. He was particularly concerned with the decision of the delegate that he was not a genuine student. He expressed concern about his reputation. While he appreciated that the Tribunal made a decision on a different basis, he was concerned that he had not been, in his view, exonerated.
I explained to Mr Jiang that the Tribunal was required to apply the relevant visa criteria. In his case, the Tribunal could not grant him a student visa without there being a current enrolment to study. The significance of that should have been apparent to Mr Jiang from the Tribunal’s invitation dated 25 July 2017. At the hearing conducted by the Tribunal, it put its concerns to Mr Jiang orally under s.359AA of the Migration Act. Mr Jiang was given the opportunity to respond after the Tribunal hearing. He took advantage of that opportunity. Nevertheless, because Mr Jiang was not enrolled in a course of study at the time of the Tribunal decision, the Tribunal was unable to grant him the visa he sought.
In his submissions in reply, Mr Jiang and I engaged in an interesting debate over various theoretical principles. That debate, however, could not alter the basic facts relating to the Tribunal decision. Mr Jiang sought, and was granted, the opportunity to make a final oral statement to me. In that statement Mr Jiang emphasised, once again, his concern about the findings by the delegate. He expressed his frustration that the merits review before the Tribunal did not result in the expungement of those findings. Mr Jiang appealed to basic principles of fairness and justice. He sought an outcome that was human rights focused.
It was apparent to me that Mr Jiang may have misapprehended the nature of merits review before the Tribunal. The Tribunal was not confined to the issue upon which the delegate made her decision. Further, the Tribunal was obliged to apply the relevant visa criteria, which, in this case, inevitably led to the same decision as the delegate but for a different reason. That left Mr Jiang frustrated, but there is no legal basis upon which the Court can intervene.
Nothing in Mr Jiang’s oral submissions supported an argument of jurisdictional error by the Tribunal. The Minister’s written submissions deal with the grounds of review advanced. I agree with those submissions and adopt them.
Ground 1
Ground 1 is misconceived and must fail. The Tribunal was not obliged to affirm the delegate's decision on the same basis as was determined by the delegate. The Tribunal, in reviewing the delegate’s decision under s.348 of the Migration Act, was obliged by s.349(1) of the Migration Act to form its own conclusion on the material before it as to the proper performance of the duty imposed on the Minister by s.65 of the Migration Act. The Tribunal’s own conclusion as to the proper performance of the duty imposed on the Minister by s.65 is then to be reflected in a decision made by the Tribunal under s.349(2), relevantly, either to affirm the delegate's decision or vary the decision or set aside the delegate's decision and to substitute its own decision, which would then be taken, by force of s.349(3) of the Migration Act, to be a decision of the Minister.[15]
[15] Hossain v Minister for Immigration [2018] HCA 34 at [32] and Minster for Immigration v Sharma [1999] FCA 31 at [36].
Nor, was the decision of the Tribunal "manifestly unreasonable" because the Tribunal affirmed the delegate's decision on a different basis to that of the delegate:
a)first, the Tribunal is not confined to whatever may have been the issues considered by the delegate. The issues that arise in relation to the delegate's decision are to be identified by the Tribunal;[16]
b)secondly, Mr Jiang was on notice of the dispositive issues to the decision under review.[17] The Tribunal identified the dispositive issues to Mr Jiang at the hearing before it on 30 August 2017 in accordance with s.359AA of the Migration Act. It also provided Mr Jiang with an opportunity to obtain a current certificate of enrolment and to explain why he was a genuine student. Mr Jiang took up the opportunity to explain why he was a genuine student but failed to provide to the Tribunal evidence of current enrolment in a course of study; and
c)thirdly, the Tribunal had no option but to affirm the delegate's decision where Mr Jiang did not meet the mandatory criteria of clause 500.211(a) of Schedule 2 to the Migration Regulations - in those circumstances questions of "legal unreasonableness" cannot arise.[18]
[16] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [35] (SZBEL).
[17] See and cf SZBEL at [35].
[18] Singh v Minister for Immigration [2019] FCA 1350 at [31].
Ground 2
Ground 2 is unparticularised and fails to identify any error in the decision record. In the absence of particulars, it is difficult to meaningfully engage with Ground 2 and unhelpful for this Court to attempt to surmise what the error could be. These deficiencies alone are sufficient to dismiss Ground 2.[19]
[19] WZAVW v Minister for Immigration [2016] FCA 760 at [35]; SZNXA v Minister for Immigration [2010] FCA 775 at [21]; ANA18 v Minister for Home Affairs [2018] FCA 1854 at [59] (see also BQN16 v Minister for Immigration [2019] FCCA 481 at [4] and cases cited therein).
In any event, to the extent Mr Jiang asserts the decision of the Tribunal was manifestly unreasonable because it affirmed the delegate's decision on the basis Mr Jiang could not meet the requirements of clause 500.211(a) of Schedule 2 to the Migration Regulations, the reasons for rejecting the first ground are equally applicable.
Conclusion
I conclude that Mr Jiang is unable to demonstrate that the decision of the Tribunal is affected by a jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
I will therefore order that the application filed on 9 October 2017 is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale at the time the application was filed. The relevant amount is $7,328. Mr Jiang queried the amount, noting that he had received some information about a lower figure, apparently relating to interlocutory hearings. I explained the difference between an interlocutory and a final decision.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,328.
I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 29 September 2020
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