Jiang v Minister for Immigration - [2020] FCCA 2696

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
BQN16 v Minister for Immigration [2019] FCCA 481
Hossain v Minister for Immigration [2018] HCA 34

Minster for Immigration and v Sharma [1999] FCA 31

Singh v Minister for Immigration [2019] FCA 1350
SZNXA v Minister for Immigration [2010] FCA 775

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 2696
Decision Date: 25 September 2020

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision made by the Administrative Appeals Tribunal (AAT) regarding the refusal of a student visa for the applicant, Ms. Jiang. The Minister for Immigration was the respondent.

The primary legal issue before the Federal Circuit Court was whether the AAT's decision to refuse the student visa was unreasonable, and if so, whether this unreasonableness constituted a jurisdictional error. Specifically, the court had to consider the implications of the applicant not being enrolled in a course at the time the AAT made its decision.

Judge Driver found that the AAT's decision was not unreasonable in a manner that would amount to jurisdictional error. The court reasoned that the AAT was entitled to consider the applicant's circumstances as they stood at the time of its own decision-making process. The applicant's failure to be enrolled at that point was a relevant factor for the AAT to assess in determining whether the criteria for the student visa were met. The court concluded that the AAT had properly exercised its jurisdiction and had not made any errors of law.

The application for judicial review was dismissed.

Orders