Niu v Minister for Immigration

[2014] FCCA 1646

FEDERAL CIRCUIT COURT OF AUSTRALIA

NIU v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1646

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – dismissal of show cause application on account of the applicant’s non appearance.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth)

Applicant: ZILI NIU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 69 of 2014

Judgment of: Judge Driver

Hearing date: 23 July 2014

Delivered at: Sydney

Delivered on: 23 July 2014

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents:

Ms N Blake

Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

3. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 69 of 2014

ZILI NIU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 10 January 2014, seeking review of a decision of the Migration Review Tribunal (Tribunal) made on 17 December 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant (Mr Niu) a temporary student visa. 

2. Background facts relating to the visa application, and the Tribunal’s decision on it, is contained in the Minister’s outline of submissions filed on 16 July 2014.   

3. Mr Niu, a citizen of China, arrived in Australia on a business visa and lodged an application for a student visa on 31 October 2012.

4. At the time of Mr Niu’s application, the Student (Temporary) Class TU Visa comprised of a number of subclasses.  The applicable subclass varied according to the type of course in which an applicant wished to enrol in. In the present case, the applicant sought a Subclass 573 visa.

5. The primary criteria for a Subclass 573 visa are set out in Part 573 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). In addition, where the application for a student visa is made in Australia, and the applicant has not previously held a student visa, the applicant must satisfy clause 573.227 of Schedule 2 to the Regulations. Clause 573.227, relevantly provides:

   (a)     If …the application was made in Australia; and

   (b) subject to clause 573.227A,^[[1]] the applicant is subject to the highest assessment level for the relevant course of study; and

   (c) at the time of application, the applicant met the requirements of clause 573.211:

   (i)    as the holder of a visa of one of the following classes … (N) Temporary Business Entry (Class UC)…  the applicant establishes exceptional reasons for the grant of a Subclass 573 visa. 

   [1] Clause 573.227A  provided as follows: “For paragraph 573.227(b), the highest assessment level does not include assessment level 1”.

6. There are two limbs to the criteria in clause 573.227.  The first limb requires that the applicant is subject to the “highest assessment level” in the relevant course of study.  Regulation 1.03 defines “highest assessment level” to be the highest number (from 1 to 5) of the assessment level for an applicant's proposed courses.  Relevantly, by IMMI 12/005, the Minister specified “Assessment Level 3” for holders of a Chinese passport who applied for a Subclass 573 visa on or after 24 March 2012.  

7. The second limb of clause 573.227 requires that the applicant establish that there are exceptional reasons for the grant of a student visa.  It is this requirement that formed the basis for the decisions of the Delegate and the Tribunal, and is the criterion in issue in the current proceedings.

8. The Tribunal found that Mr Niu had not established that there were “exceptional reasons” for the grant of the student visa.  Mr Niu provided a written statement to the Department in which he indicated that he had applied for the visa because he had an interest in business and most of his business and personal contacts were now in Australia[2].  At the Tribunal hearing, Mr Niu added that he had been pressed for time regarding enrolment in a bachelor program, and did not have time to leave Australia[3].  The Tribunal found that this issue no longer existed as he had not enrolled in any course and therefore had time to consider his position and make an appropriate application from outside Australia.  Although the Tribunal accepted Mr Niu’s submission that he may have personal and business contacts in Australia, it did not consider that Mr Niu had sufficiently explained why returning to his home country to make the application would present problems for him.  In respect of the inconvenience and costs of leaving Australia, the Tribunal considered that such issues apply to all applicants[4]. Similarly, the desire of Mr Niu and his family for him to study in Australia was not unusual.  Mr Niu further submitted that China was now Australia's largest trading partner.  However, the Tribunal did not accept that this constituted an exceptional reason within the meaning of clause 573.227 and found the reasons put forward by Mr Niu on this point to be “not specific and not convincing”[5]. 

   [2] CB 20.

   [3] CB 95 [5].

   [4] CB 95 [4].

   [5] CB 95 [8].

9. In light of the foregoing, the Tribunal did not accept that Mr Niu’s claims amounted to “exceptional reasons” for the purposes of clause 573.227. Accordingly, Mr Niu was unable to meet one of the essential prescribed criterion for the grant of the student visa.  One that basis, the Tribunal affirmed the Delegate's decision.

10. There was no first court date hearing in this matter for the reason that the parties agreed to consent orders which were approved by me on 12 February 2014.  Exhibit C1 is an email from my associate to the Minister’s solicitors and Mr Niu at his nominated email address, providing the consent orders as approved. 

11. The Minister’s solicitors wrote to Mr Niu at his nominated address for service by letter dated 16 July 2014[6], providing the Minister’s written submissions.  The letter noted the matter was listed for hearing on 23 July 2014 at 2.30pm in this Court here at John Madison Tower, and cautioned Mr Niu that if he did not attend in person or by legal representative, the Minister’s solicitors were instructed to seek to have the matter dismissed with costs. 

    [6] Exhibit R1.

12. Mr Niu has not appeared at today’s show cause hearing.  The matter has been called twice, and on each occasion there was no answer to the call.  There is no explanation for Mr Niu’s non-attendance. 

13. Before I came on the bench, my deputy associate attempted to telephone Mr Niu at his nominated mobile telephone number, with the assistance of a Mandarin interpreter.  That attempt was unsuccessful, as the phone had been turned off.

14. In the circumstances, I have decided that the appropriate course is to dismiss the application on account of Mr Niu’s non-attendance.  I will so order.

15. In consequence of the dismissal, the Minister seeks an order for costs in accordance with the Court scale.  I will order that applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

16. I will further direct that the Minister arrange to have the orders made today entered, and that the Minister cause a sealed copy of those orders to be served on the applicant by ordinary pre-paid post at his last known address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  25 July 2014