Jiang v Minister for Immigration and Multicultural Affairs (No 2)
[2024] FedCFamC2G 1230
•6 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jiang v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 1230
File number(s): SYG 576 of 2024 Judgment of: JUDGE STREET Date of judgment: 6 November 2024 Catchwords: MIGRATION – visa cancellation – obtaining an updated course of enrolment is not a useful result - no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 8 Date of hearing: 6 November 2024 Place: Sydney Counsel for the Applicant: Mr I Leong Solicitor for the Applicant: Juris Cor Legal Counsel for the Respondent: Mr N Swan Solicitor for the Respondent: Australian Government Solicitor ORDERS
SYG 576 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHENGUANG JIANG
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
6 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The amended application filed 5 April 2024 is dismissed.
2.The Applicant pay the Respondent’s costs fixed in the amount of $8,371.30.
3.The name of the Respondent be amended to “Minister for Immigration and Multicultural Affairs”
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These proceedings were fixed for a final hearing on 12 April 2024. An application for adjournment was filed on 23 October 2024, which has been refused. The applicant seeks to rely upon the affidavits that have been filed in the proceedings, and the court book has been marked exhibit A. No submissions are advanced by the applicant in support of the ground identified in the amended application that was filed on 5 April 2024. That ground appears to reflect a disagreement with the adverse decision of the delegate, albeit asserting a denial of fairness at one level in relation to a request to postpone the decision-making to the following day.
The applicant's course of enrolment was cancelled in July 2023. In those circumstances there was a proper basis for the issue of the notice of intention to cancel that was issued to the applicant. Given the substantial period of time between the leaving of Australia and return of the applicant to Australia, the refusal to postpone the decision-making, given the applicant's arrival at the airport, cannot be said to lack an intelligent and evident justification, given the substantial period of time in which he had been on notice of the cancellation of his course of enrolment.
Further, obtaining a current course of enrolment did not overcome the grounds for cancellation that had been made out. An adjournment to obtain the current course of enrolment, which is supported by the affidavit evidence that has been filed, as being possibly able to be obtained does not overcome the substantial period of time over which the applicant did not hold a current course of enrolment. The Court does not regard the decision of the delegate, on the material before it, not to postpone the decision and to proceed to determine the decision as either being legally unreasonable or procedurally unfair.
The Court has also taken into account in this regard that these are proceedings in respect of which the visa held by the applicant was one of a limited kind until 19 July 2024, and in these circumstances the Court accepts the Minister's submissions that the proceedings are futile and cannot give rise to any entitlement for the applicant to return to Australia.
Further, the Court does not accept that the decision of 3 April 2024 is affected by any jurisdictional error, as alleged. The grounds in the amended application are not made out. The Court accepts the Minister's submissions that even if there was relevant error, the visa in issue in these proceedings would not permit the applicant to return. Further, the applicant does not suffer from some bar under s 48 of the Migration Act 1958 (Cth) (“the Act”) by reason of delegate's decision because that bar only relates to a non-citizen who is in Australia.
The Court accepts the Minister's submission that the proceedings cannot give rise to any useful result to the applicant and on that separate ground, taking in account s 190 of the Act, should be dismissed. To the extent that it was advanced that the opportunity for an adjournment might have given rise to some useful result, the obtaining of an updated course of enrolment is not a useful result that overcomes a substantial period of time that was the subject of the applicant being aware of his cancelled course of enrolment; it does not overcome the making out of the ground for cancellation. Even if a request was made by the applicant, as alleged in his affidavit, the decision to proceed with the cancellation cannot be said to be legally unreasonable or procedurally unfair.
For these reasons the Court finds the amended application filed on 5 April 2024 fails to make out any jurisdictional error.
It is for these reasons the Court makes the above orders.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 6 November 2024
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