Xu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 3320
•11 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
Xu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3320
File number(s): SYG 1726 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 11 December 2020 Catchwords: MIGRATION – Application to extend time for applying for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision made by the Administrative Appeals Tribunal affirming decision to cancel Subclass 573 Higher Education Sector visa – whether extension of time necessary in the interests of the administration of justice – whether adequate explanation given for delay in applying for judicial review – whether there is any merit in grounds of substantive application – application for extension of time dismissed. Legislation: Federal Circuit Court Rules 2001 (Cth), Part 3, Schedule 1
Migration Act 1958 (Cth), ss.116(1), 119, 124(1), 189, 198, 476, 477(1), 477(2)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202
Cases cited: COT15 v Minister for Immigration and Border Protection (No 1) [2015] FCAFC 190
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
Number of paragraphs: 21 Date of hearing: 3 December 2020 Place: Sydney Applicant: Appeared in person, by telephone, assisted by an interpreter Solicitor for the First Respondent: Ms S Wright of Mills Oakley Lawyers, by telephone ORDERS
SYG 1726 of 2017 BETWEEN: ZHENGRONG XU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
11 DECEMBER 2020
THE COURT ORDERS THAT:
1.The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act in relation to the decision made by the second respondent on 26 April 2017 is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $3,606.
REASONS FOR JUDGMENT
INTRODUCTION
The applicant applies for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the second respondent (Tribunal). By that decision the Tribunal affirmed the decision of a delegate of the first respondent (Minister) to cancel the applicant’s Subclass 573 Higher Education Sector visa (573 visa).
BACKGROUND
Applicant granted 573 visa
On 19 July 2013 the applicant was granted a 573 visa. The visa was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations), paragraph (2)(a) of which relevantly provided that the “holder meets the requirements of this subclause if . . . the holder is enrolled in a registered course”.
Cancellation of visa
On 2 June 2016 a delegate of the Minister sent by mail to the applicant a notice of intention to consider cancellation of the 573 visa on the ground that the applicant was not enrolled in a registered course and, for that reason, the applicant had not complied with paragraph (2)(a) of condition 8202 (Notice). Paragraph (b) of s.116(1) of the Act provides that, subject to immaterial exceptions, the Minister may cancel a visa if the Minister is satisfied that “its holder has not complied with a condition of the visa”. The delegate issued the Notice pursuant to s.119 of the Act and, consistently with that section’s requirement, the delegate invited the applicant to comment on the ground of cancellation identified in the Notice, and to give reasons why the 573 visa should not be cancelled.
The Notice stated the applicant had to give his response within 5 working days after he is taken to have received the Notice. The applicant, however, did not respond to the Notice. Under s.124(1) of the Act the Minister became entitled to cancel the 573 visa after the time for responding to the Notice had passed. On 20 June 2016 the delegate decided to cancel the 573 visa; and by letter dated 20 June 2016 sent to the applicant by mail the delegate notified the applicant of his decision to cancel the 573 visa.
Before the Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision to cancel the 573 visa and, on 26 April 2017, he appeared before the Tribunal to give evidence and present arguments. The applicant accepted he had not been enrolled in a registered course of study since September 2014. The applicant also gave the following evidence before the Tribunal:
(a)When he arrived in Australia the applicant attempted an English language course, but he did not successfully complete that course, and he did not attempt any other course.
(b)The applicant’s parents, who operated a business in China, supported the applicant financially but, because the business had a lot of debt, the business could no longer support the applicant.
(c)The applicant chose to breach his visa condition to support his parents by working and remitting to China money he earns in Australia.
(d)The applicant now wished to complete his studies.
(e)The applicant was now a Christian, but not when he was in China. He was sure he wanted to become a Christian. He was baptised in October 2016.
Tribunal’s reasons
The Tribunal found the applicant had not been enrolled in a registered course since September 2014 and, for that reason, the applicant had not complied with condition 8202(2). The Tribunal then considered a number of matters relevant to whether in the exercise of its discretion it should cancel the 573 visa. The Tribunal made the following findings:
(a)The Tribunal was not satisfied the applicant’s present intention in remaining in Australia is for the purpose of study.
(b)The length of the applicant’s failure to maintain his enrolment in a registered course of study was significant; and the applicant would have been aware he needed to maintain his enrolment for the duration of the 573 visa.
(c)The Tribunal accepted the applicant may be subject to some financial hardship if the 573 visa were cancelled; he may not be allowed to work in Australia and thus be in a position to remit money to his parents; and the applicant would become an unlawful non-citizen liable to be detained under s.189 of the Act and removed from Australia under s.198 of the Act.
(d)There is no evidence that any family member in Australia would be impacted by the cancellation of the 573 visa.
(e)The circumstances in which the ground for cancellation arose were the applicant’s failure to maintain his enrolment in a registered course of study as he chose to allegedly work to remit money to his parents in China.
(f)It did not appear the applicant had done anything in the past two and half years that would indicate he had any interest in studying in Australia; and the Tribunal was not satisfied the applicant wishes to continue his studies in Australia.
(g)Any claims for protection the applicant may have arising from his claim to be a Christian could be canvassed in an alternative visa application.
The Tribunal concluded that, considering all of the circumstances, the 573 visa should be cancelled.
PRINCIPLES
Under s.477(2) of the Act the Court may order the extension of the 35 day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.
In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a)Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b)Whether there is any prejudice to the Minister;
(c)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
[1] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, at [47]
The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[2] Further:[3]
If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[2] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [63] (references omitted)
[3] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [62] (references omitted)
EXPLANATION FOR DELAY
In the form of application the applicant filed in this Court the applicant says he received the Tribunal’s decision on 27 April 2017 and he believed 1 June 2017 was the “due date”; but he filed on 2 June 2017 because he was not aware that he had to file an affidavit with the application. At the hearing before me the applicant suggested there was some miscommunication between the Tribunal and his migration agent. These explanations are not satisfactory. The applicant does not appear to have engaged an agent to assist him before the Tribunal; and in the email by which the Tribunal informed the applicant of its decision, the Tribunal attached an information sheet titled “Information about decisions – MR Division” which stated that applicants “can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decision”, and that “you must do so within 35 days of the date of our decision”.[4]
[4] CB48
APPARENT MERITS
The application contains the following two grounds (errors in original):
1.The decision maker did not consider the compassionate and compelling circumstances of the applicant, nor the impacts received from family
2.The decision maker also did not consider the financial hardship and depress [sic] the applicant suffered
As framed, ground 1 does not identify the matters that were before the Tribunal which the applicant claims were compassionate and compelling circumstances which the Tribunal did not consider. For that reason alone, ground 1 does not disclose any arguable case of jurisdictional error. In any event, the Tribunal did consider the consequences to the applicant if the 573 visa were cancelled, which included some financial hardship, not being allowed to work in Australia and thus remit money to his parents in China; and his becoming an unlawful non-citizen.
At the hearing the applicant, who is not legally represented, made submissions in relation to ground 1. He said he is the only member of his family who is in Australia; and he endeavours to help his family in China. These submissions do not disclose any arguable case of jurisdictional error because they are an appeal to the merits of the applicant’s case that the 573 visa should not be cancelled.
Ground 2, as framed, is also not reasonably arguable. It is beyond argument the Tribunal considered the financial consequences to the applicant if the 573 visa were to be cancelled. It is true the Tribunal did not refer to the applicant having claimed to be depressed; but there is nothing in the material before me that could reasonably suggest the applicant had claimed before the Tribunal that he suffers from depression, or will suffer from depression if the 573 visa were cancelled; and there is nothing before me that suggests the applicant had submitted to the Tribunal any evidence that could suggest depression. For these reasons, ground 2 does not disclose any arguable case of jurisdictional error.
At the hearing the applicant made submissions in relation to ground 2. He said what he wished to say in relation to ground 2 overlapped with what he had said in relation to ground 1. The applicant said that, because of their financial difficulties, the applicant’s parents could not help the applicant sustain his studies. The applicant also said there were more opportunities in Australia than in China, and he was hoping to make a contribution to the Australian construction industry. None of these submissions disclose any arguable case of jurisdictional error.
OTHER GROUNDS
At the hearing the applicant submitted that he is a Christian, and he will be unable to practice his religion in China. I take this to be a claim that the Tribunal made a jurisdictional error in the manner in which it dealt with the applicant’s evidence that he is a Christian. The Tribunal recognised that this was a claim the applicant could make if he applied for a protection visa. The Tribunal referred to the Full Federal Court judgment in COT15 v Minister for Immigration and Border Protection (No 1),[5] noting that the Full Federal Court upheld a Tribunal decision that affirmed the cancellation of a visa by referring to the fact that such claims could be canvassed in an application for a protection visa. While accepting that each case may need to be considered according to its merits, the Tribunal said it believed that any relevant claims the applicant might have based on his being a Christian “could be canvassed in an alternate visa application”.
[5] COT15 v Minister for Immigration and Border Protection (No 1) [2015] FCAFC 190
It is not reasonably arguable that it was not open to the Tribunal to deal with the applicant’s claim that he had become a Christian by finding that the applicant could make such claims by making “an alternate visa application”, particularly in light of the Tribunal’s adverting to the applicant’s need to ensure “his evidence was provided in full” which implied that the applicant may not have provided all relevant evidence on which he might wish to rely in support of his claim that he is a Christian.
The applicant made a number of other submissions – he has been in Australia for seven years and has therefore adapted to the Australian way of life; he would find it difficult to adapt to life in China, and he would like to pursue a career in building in Australia. These are matters that could only relate to the merits of the 573 visa not being cancelled and, for that reason, raise no arguable case of jurisdictional error.
CONCLUSION, DISPOSITION, AND COSTS
The applicant has not provided an adequate explanation for his delay in applying to this Court, and there is no arguable merit in any of the grounds on which he intends to rely if an order extending time were made. I am therefore not satisfied it is necessary in the interests of the administration of justice that an order be made under s.477(2) of the Act extending the 35 day period provided for by s.477(1) of the Act. I propose, therefore, to dismiss the application for an order under s.477(2) of the Act.
The Minister applies for costs, and that those costs be set in the amount of $3,606, which is less than the amount provided for in Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). I explained to the applicant that the usual order relating to costs is that the successful party is entitled to an order that the losing party pay the successful party’s costs. The applicant said he would not be able to pay such costs, and that the costs appeared to be on the high side. That the applicant may not be able to pay the costs the Minister seeks is not a matter that leads me to exercise my discretion against awarding costs. I am also satisfied that $3,606 is a fair measure of the Minister’s costs which in justice the applicant should be ordered to pay. I also propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $3,606.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 11 December 2020
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