Xing v Minister for Immigration
[2011] FMCA 647
•2 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| XING v MINISTER FOR IMMIGRATION | [2011] FMCA 647 |
| MIGRATION – Visa – Student Visa – No further stay condition – whether “compelling and compassionate circumstances” demonstrated – merits review – no jurisdictional error. |
| Migration Act 1958 (Cth) ss.41, 476 Migration Regulations 1994 (Cth) Reg.2.05, Sch 8 |
| Thongpraphai v Minister for Immigration & Multicultural Affairs [2000] FCA 1590 Cheema v Minister for Immigration and Citizenship [2011] FCA 121 Kaur v Minister for Immigration [2011] FMCA 367 Hager v Minister for Immigration & Anor [2010] FMCA 942 SZGBR v Minister for Immigration [2005] FMCA 942 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | XICHAO XING |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 1298 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 August 2011 |
| Date of Last Submission: | 19 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 2 September 2011 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor on the record |
| Solicitor for the Respondent: | Mr Wood |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 22 June 2011 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1298 of 2011
| XICHAO XING |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of a delegate of the Minister for Immigration and Citizenship not to waive a “No Further Stay” on the Applicant’s Student visa.
The Applicant seeks an order that the decision should be quashed.
He relies on the following grounds:
1. I’m genuine student for studying.
2. I have enough financial support for my studying.
3. I need study more English in Australia.
The Minister filed a Response on 30th June 2011 seeking that the Application should be dismissed with costs on the ground that it is not admitted that there is any jurisdictional error in the decision.
Background
The Applicant is a citizen of China who arrived in Australia on
12th December 2010 on a Subclass 570 student visa to which a condition 8534 (No further stay) was attached. The visa was issued to allow him to undergo a 20 week General English course. The visa was due to expire on 20th June 2011.
The Applicant wished to study for another English course, lasting 30 weeks, and 31st May 2011 he applied through his migration agent for waiver of the No Further Stay condition. The Applicant gave these reasons:
1. I am genuine student as I kept studying all the time…
2. I have sufficient fund to study in Australia under the support of my mum.
On 3rd June 2011 the Minister’s Department wrote to the Applicant’s migration agent to advise that the request to waive the No Further Stay condition was not successful. The letter said:
Mr Xing’s request was assessed against the requirements of Regulations 2.05(4), (5), (5A) and (6). These Regulations prescribe the criteria that must be met before the 8534 visa condition can be waived. Based on the information presented, a delegate of the Minister has determined that Mr Xing does not satisfy Regulations 2.05(4), (5), (5A) and (6).
The decision is not one that is reviewable by the Migration Review Tribunal.
The Applicant filed his Application and affidavit in support on
22nd June 2011. The Application was listed for final hearing on
19th August 2011.
The Applicant has not filed any written outline of submissions but he ended Court on the day of the hearing and made an oral submission.
Submissions
The Applicant told the Court he was not aware of the No Further Stay condition when he came to Australia. He said that he felt that it would be quite a complicated and cumbersome process if he had to return to China in order to make a further application for a visa. It would be easier to apply in Australia. He thought that it could take another one or two years to obtain a visa if he were to apply from China.
It was submitted on behalf of the Minister that the Applicant did not comply with any of the applicable sub-regulations in that he did not show that compelling and compassionate circumstances had developed since he was granted his visa, nor had he been granted one of the visas referred to in sub-regulation (5), nor had he shown a genuine intention to apply for a General Skilled Migration visa, nor was he a registered nurse or able to satisfy the requirements for registration as a registered nurse.
It was further submitted that the expression “compelling and compassionate” set a high standard (see Thongpraphai v Minister for Immigration & Multicultural Affairs[1] per O’Loughlin J at [21]).
[1] [2000] FCA 1590
Again, Mr Wood who appeared for the Minister submitted that:
a)This Court has power under s.476 of the Migration Act 1958 to review the decision in judicial review proceedings (Cheema v Minister for Immigration and Citizenship[2] at [13]; Kaur v Minister for Immigration[3] );
b)There is no obligation on the delegate to provide reasons for the decision (Hager v Minister for Immigration & Anor[4] at [10]; Kaur v Minister for Immigration[5] at [10]-[14]);
c)The decision notification should not be scrutinised as though it constituted or contained the whole of the delegate’s decision (SZGBR v Minister for Immigration[6]);
d)Merits review is not available (Minister for Immigration and Ethnic Affairs v Wu Shan Liang[7]); and
e)The Applicant was seeking merits review of the delegate’s decision.
[2] [2011] FCA 121
[3] [2011] FMCA 367
[4] [2010] FMCA 942
[5] supra
[6] [2005] FMCA at [10]-[14]
[7] (1996) 185 CLR 259
Conclusions
The Applicant sought a waiver of the Condition 8534 (No Further Stay) condition on his visa for the purpose of applying for another visa to permit him to undertake another English course in Australia.
His application for a waiver was refused because he did not satisfy the requirements of Regulation 2.05.
Condition 8534, set out in Schedule 8 to the Migration Regulations, provides:
The holder will not be entitled to be granted a substantive visa, other than:
(a) a protection visa; or
(b)a student visa the application for which must be made on form 157P or 157P (Internet); or
(c) a Subclass 497 (Graduate – Skilled) visa; or
(d) a Subclass 580 (Student Guardian) visa.
The power to waive condition 8534 comes from s.41(2A) of the Migration Act.
Sub-regulations 2.05(4), (5), (5A) and (6) prescribe the circumstances in which the Minister may waive condition 8534 (inter alia), which are (summarised):
(4) …
(a)since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:
(i) over which the person had no control; and
(ii) that resulted in a major change to the person’s circumstances; and
(b)if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and
(c)if the person asks the minister to waive the condition, the request is in writing.
(5) …that the holder of the visa:
(a)has, after holding a student visa to which condition 8534 applies, been granted:
(i) a Subclass 497 (Graduate – Skilled) visa; or
(ii)a Subclass 010 (Bridging A) visa or a Subclass 020 (Bridging B) visa associated with the Subclass 497 (Graduate – Skilled) visa application; and
(b)has not, after holding a student visa to which condition 8534 applies, been granted a protection visa.
(5A) …that the holder of the visa:
(a)has completed the course for which the visa was granted; and
(b)has a genuine intention to apply for a General Skilled Migration visa.
(6) …that the holder of the visa is a registered nurse, or satisfies the requirements for registration as a registered nurse, in Australia.
The Applicant’s grounds for seeking a waiver of the No Further Stay condition are that he wishes to undertake a further English course, for which he has the financial support of his mother. He has a good academic record in the English course which he has recently completed. It would be more convenient for him to apply for the visa in Australia rather than return to China and go through a cumbersome and lengthy process to apply for a further visa.
Quite clearly, these are not “compelling and compassionate” reasons. The phrase was defined by O’Loughlin J in Thongpraphai v Minister for Immigration & Multicultural Affairs[8] at [21]:
The circumstances that must fit the description of ‘compelling and compassionate’ must have developed since the grant of the visa…There is little doubt that both words call for the occurrence of an event or events that are far-reaching and most heavily persuasive.
[8] supra
The delegate did not fall into jurisdictional error in deciding that the Applicant’s reasons for seeking a waiver of the No Further Stay condition did not meet the test for “compelling and compassionate circumstances”. Consequently, the delegate did not fall into error when deciding that the Applicant had not met the requirement of Sub-regulation 2.05(4).
The Applicant did not set out in his application for a waiver any circumstances that came within the requirements of Sub-regulations 2.05(5), (5A) or (6). Accordingly, the delegate did not fall into jurisdictional error when deciding that the Applicant did not meet the requirements of any of those Sub-regulations.
The Minister’s solicitor was correct in submitting that the Applicant was merely seeking merits review of the delegate’s decision.
The Applicant has not shown that the delegate misapplied any of the relevant Sub-regulations.
In the absence of jurisdictional error, the delegate’s decision is a privative clause decision. As such, it is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called in question in any court (s.474(1)).
It follows that the Application must be dismissed.
The Court will hear submissions on costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 22 August 2011
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