Wang v Minister for Immigration

[2018] FCCA 899

FEDERAL CIRCUIT COURT OF AUSTRALIA

WANG v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 899

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.360

Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

Kaur v Minister for Immigration [2013] FCA 275

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Applicant: YAN WANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2084 of 2017

Judgment of: Judge Driver

Hearing date: 12 April 2018

Delivered at: Sydney

Delivered on: 12 April 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Evans of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2084 of 2017

YAN WANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant, Ms Wang, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), made on 8 June 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Wang a student visa.

2. Background facts relating to this matter are set out in the Minister’s outline of submissions, filed on 5 April 2018. 

3. Ms Wang is a female citizen of China, who on 21 April 2016, applied for a student visa on the basis of her proposed enrolment in a Bachelor of Arts and Business at the University of NSW.[1]

   [1] Court Book (CB) 1-26

4. The relevant criteria for the visa were set out in clause 573 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). It was a requirement for the grant of the visa that where an application has been made in Australia and an applicant does not hold a substantive visa at the time of the application, and the last substantive visa held by the applicant was of a particular kind, the application must be made within 28 days from the date the applicant’s last substantive visa ceased to be in effect. Clause 573.211(3) stated:

   (3)     An applicant meets the requirements of this subclause if:

   (a)the applicant is not the holder of a substantive visa; and

   (b)     the last substantive visa held by the applicant was:

   (i)     a student visa; or

   (ii)     a special purpose visa; or

   (iii)   a Subclass 303 (Emergency (Temporary Visa Applicant)) visa; or

   (iv)    a Diplomatic (Temporary) (Class TF) visa granted to the holder as the spouse, de facto partner or a dependent relative, of a diplomatic or consular representative of a foreign country; or

   (v)     a Subclass 497 (Graduate — Skilled) visa; and

   (c)the application is made within 28 days (or within such period specified in a legislative instrument made by the Minister) after:

   (i)     the day when that last substantive visa ceased to be in effect; or

   (ii)     if that last substantive visa was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

   (A)the day when that last substantive visa ceased to be in effect; and

   (B)the day when the applicant is taken, under sections 368D and 379C of the Act, to have been notified of the Tribunal's decision; and

   (d)     the applicant satisfies Schedule 3 criterion 3005.

5. On 11 May 2016, the delegate refused to grant the visa.[2] The delegate found that Ms Wang did not hold a substantive visa at the time of the visa application, that she last held a substantive visa on 15 March 2016, and therefore her student visa application was lodged more than 28 days from the day her last substantive visa ceased. Accordingly, she did not satisfy clause 573.211(3)(c).

   [2] CB 30-38

6. On 24 May 2016, Ms Wang applied to the Tribunal for review of the delegate’s decision.[3]  Ms Wang was invited to[4] and attended a hearing before the Tribunal on 31 May 2017.[5]

   [3] CB 39-40

   [4] CB 44-50

   [5] CB 51-53

The Tribunal’s decision

1. The Tribunal affirmed the delegate’s decision on 8 June 2017.[6]

   [6] CB 56-58

2. The Tribunal identified that as the visa application had been made in Australia and Ms Wang did not hold a substantive visa at the time of her application, it would assess Ms Wang against clause 573.211(3) in Schedule 2 to the Regulations.[7]  The Tribunal identified that Ms Wang was required to have made her visa application within 28 days of the last substantive visa ceasing.[8] As Ms Wang’s last substantive visa ceased on 15 March 2016 and the student visa application was not lodged until 22 April 2016, 38 days after her last substantive visa ceased, the Tribunal found she did not satisfy clause 573.211(3)(c).[9]

   [7] CB 57, [13]

   [8] CB 57-58, [14]-[16]

   [9] CB 58, [17]-[18]

The present proceedings

1. These proceedings began with a show cause application, filed on 3 July 2017.  As was pointed out by the solicitor for the Minister, the application was on its face defective, in that it failed to seek a writ of mandamus in addition to a writ of certiorari.  I corrected that oversight with the consent of Ms Wang.

2. The grounds in the application are faithfully reproduced at [10] of the Minister’s submissions:

   1.I am a Chinese citizen and have been a genuine student since I arrived in Australia. I did not extend my student visa on time due to situation beyond my control.

   2.I always obey my visa condition and never breached it.

   3.It is not fair to refuse my visa, I hope I can continue my study in Australia.

3. The application is supported by a short affidavit filed with it, which I received as a submission. 

4. I have before me as evidence the court book, filed on 20 September 2017, and the affidavit of Xiangling He, made on 16 January 2018.  Attached to that affidavit are screenshots confirming the date of expiry of Ms Wang’s last substantive visa.

5. I invited oral submissions from Ms Wang this afternoon.  It is apparent that she has a grievance against her former migration agent, who she entrusted with the task of applying for a further student visa, so that she could complete her chosen studies.  It appears that the agent was not diligent in that task, which led to Ms Wang’s difficulty.  Ms Wang is also upset that her family, including her sick father, have invested heavily in her studies, and she seeks the opportunity to complete them.

6. These are matters which the Minister could take into account if he were so minded.  They are, however, beyond the scope of this proceeding.  More particularly, they were beyond the scope of the Tribunal decision, given that the Tribunal lacked the power to take into account exceptional or compelling circumstances to waive the criterion for the grant of a visa that required that the application be made within 28 days of the expiry of the last substantive visa.

7. This is, to my mind, a confusing situation for visa applicants, in that, in relation to some classes of visa, the Tribunal has the discretion to waive the requirement, and in relation to other classes of visa, it does not.  The class of visa sought by Ms Wang fell into the latter category.

8. Unfortunately for Ms Wang, it does not appear that there is any available argument of legal error by the Tribunal.  I otherwise agree with the submissions of the Minister.

9. None of Ms Wang’s grounds are capable of giving rise to an arguable case of jurisdictional error as the grounds fail to comprehend the statutory test applied by the Tribunal. The sole issue for the Tribunal was whether Ms Wang met clause 573.211(3)(c) in Schedule 2 to the Regulations, in respect of which the only germane fact was whether Ms Wang lodged her visa application within 28 days since her last substantive visa ceased. The Tribunal was correct to find on the evidence before it, that Ms Wang did not hold a substantive visa at the time of her visa application on 21 April 2016, that her last substantive visa ceased on 15 March 2016, and accordingly her student visa application was made more than 28 days from the date her last substantive visa ceased (38 days). These factual findings are corroborated by the affidavit of Xiangling He. None of these critical factual findings were disputed by Ms Wang either before the Tribunal or on the present material before the Court.

10. Accordingly, in application of the statutory test, the Tribunal had no discretion other than to find Ms Wang did not meet clause 573.211(3)(c) for the grant of the visa. The Tribunal did not at the time of its decision have any discretion to extend the 28-day period prescribed by clause 573.211(3)(c)(i) of Schedule 2 to the Regulations.[10]

    [10] Kaur v Minister for Immigration [2013] FCA 275 at [15] per Cowdroy J applied in

11. Ms Wang’s arguments in Grounds 1 and 2 of the application that she is a genuine student and she complied with her visa conditions while she was on an earlier student visa are therefore not relevant to the Tribunal’s decision.  These grounds do no more than dispute the merits of the Tribunal decision.[11]

    [11] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272

12. In so far as Ground 3 is capable of asserting the Tribunal failed to comply with its procedural fairness obligations, Ms Wang has not particularised how the Tribunal has erred in this regard. The material before the Court suggests that the Tribunal complied with its procedural fairness obligations in Division 5 of Part 5 of the Migration Act 1958 (Cth) (Migration Act). In compliance with its obligations under s.360 of the Migration Act, it invited her to appear at a hearing, where she was afforded an opportunity to provide evidence and present arguments, and where the dipositive issue of whether she made her application within 28 days of the cessation of her last substantive visa, was discussed.

Conclusion

1. I conclude that Ms Wang is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Ms Wang did not wish to make any submissions on costs.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       13 April 2018