Zhang v Minister for Immigration

[2016] FCCA 298

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHANG v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 298

Catchwords:
MIGRATION – Review of decision of the former Migration Review Tribunal – cancellation of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.116, 477
Migration Regulations 1994 (Cth)

Applicant: CHICHENG ZHANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3108 of 2014

Judgment of: Judge Driver

Hearing date: 15 February 2016

Delivered at: Sydney

Delivered on: 15 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr T Galvin of Minter Ellison

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to “Administrative Appeals Tribunal”.

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

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 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
OF AUSTRALIA
AT SYDNEY

SYG 3108 of 2014

CHICHENG ZHANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review the decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 1 October 2014.  The Tribunal affirmed a decision of a delegate of the minister to cancel the applicant, Mr Zhang’s, class TU student visa.  Background facts relating to the cancellation decision and the review by the Tribunal of it are set out in the minister’s outline of legal submissions filed on 5 February 2016.

2. Mr Zhang is a citizen of China who arrived in Australia on a student visa[1]. 

   [1] Court Book (CB) CB 61

3. Mr Zhang's most recent subclass 573 visa was granted on 2 April 2013[2].  That visa was granted on the basis, amongst other things, that Mr Zhang was enrolled in a Bachelor of Arts course at the University of Sydney, which was deemed to be his principal course of study[3].  One of the conditions on Mr Zhang’s subclass 573 visa was condition 8516, which relevantly stated that[4]:

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

   [2] CB 3, 27

   [3] CB 4

   [4] CB 3

4. On 4 June 2014, the Minister’s Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) of his subclass 573 visa[5]. 

   [5] CB 3-6

5. In the NOICC, a delegate of the Minister (delegate) notified Mr Zhang that it appeared that he did not comply with condition 8516 of his visa, which enlivened the discretion to cancel Mr Zhang's subclass 573 visa under s.116(1)(b) of the Migration Act 1958 (Cth) (Migration Act)[6].  This was because the Department had evidence that Mr Zhang had ceased to be enrolled in his principal course of study.  That evidence showed that Mr Zhang’s enrolment in the Bachelor of Arts course at the University of Sydney had been cancelled on 16 August 2013[7].  It was a primary criterion of Mr Zhang’s subclass 573 visa[8] that he be enrolled, or be the subject of a current offer of enrolment, in a principal course of a type that was specified for subclass 573 visas by the Minister in an instrument[9]. 

   [6] CB 3

   [7] CB 4

   [8] regulation 573.231 of the Migration Regulations 1994 (Cth) (Regulations)

   [9] CB 4

6. Mr Zhang provided a response to the NOICC on 6 June 2014[10].  He stated that he had failed all four of his subjects in semester one of 2013 because he found the courses too difficult and that he did not intentionally breach condition 8516[11].  Mr Zhang also stated that he transferred to a Diploma of Management course at the Sydney College of Business and IT and that he now plans on finding a university in Australia where he can successfully complete a bachelor degree[12].

   [10] CB 7-9

   [11] CB 8

   [12] CB 9

7. On 7 June 2014, Mr Zhang provided a copy of his academic record from the University of Sydney[13].  That academic record confirmed that Mr Zhang failed all four subjects he attempted in semester one of 2013[14].

   [13] CB 10-12

   [14] CB 11

8. By letter dated 8 July 2014, sent to Mr Zhang by email, the delegate notified Mr Zhang that his subclass 573 visa had been cancelled on 8 July 2014 under s.116(1)(b) of the Migration Act because he had breached condition 8516[15].

   [15] CB 14-31

9. On 11 July 2014, Mr Zhang applied the Tribunal for review of the delegate's decision[16].  On 1 October 2014, Mr Zhang appeared at a hearing before the Tribunal to give evidence and present arguments[17].

   [16] CB 32-33

   [17] CB 53-55

Tribunal decision

1. By decision dated 1 October 2014, the Tribunal affirmed the decision under review[18].

   [18] CB 60-63

2. The Tribunal found that courses specified for subclass 573 visas were, relevantly, higher education sector courses[19].  The evidence before the delegate, which was confirmed by Mr Zhang in his oral evidence before the Tribunal, was that he had ceased to be enrolled in a bachelor degree at the University of Sydney and had instead enrolled in a diploma course at the Sydney College of Business and IT[20].  The Tribunal therefore found that Mr Zhang no longer continued to be a person who satisfied the primary criteria of a subclass 573 visa, namely, regulation 573.231, because he was no longer enrolled, nor was he the subject of an offer of enrolment, in an eligible course and he was not an eligible higher degree student[21].  There was also no evidence that Mr Zhang satisfied the secondary criteria for a subclass 573 visa[22].  The Tribunal therefore found that Mr Zhang breached condition 8516[23].

   [19] at [9]

   [20] at [9]

   [21] at [9]

   [22] at [9]

   [23] at [9]

3. The Tribunal then considered whether to exercise its discretion to cancel Mr Zhang’s visa[24].  In considering that issue, the Tribunal had regard to the matters raised by Mr Zhang as well as government policy guidelines[25].  The Tribunal noted that Mr Zhang had given evidence that, after completing high school, he initially enrolled in a Bachelor of Business course at the University of Western Sydney, but he found this too difficult and transferred to a diploma course[26].  Mr Zhang did not complete that course because his parents insisted that he should undertake a bachelor degree, and he subsequently enrolled in a Bachelor of Arts course at the University of Sydney[27].  Mr Zhang also found this course too difficult and did not complete it, and again transferred to undertaking a diploma course (but did not provide evidence to demonstrate this)[28].  Mr Zhang therefore had not successfully completed any course of study in Australia since he completed high school in 2009[29].

   [24] at [10]

   [25] at [10]

   [26] at [12]

   [27] at [12]

   [28] at [12]

   [29] at [12]

4. The Tribunal therefore found that Mr Zhang had not been fulfilling the purpose of his travel to and stay in Australia because he had not completed any course of study for several years and also because he was not undertaking a higher education course for which his visa was granted[30].  The Tribunal also found that Mr Zhang did not have a commitment to studying in Australia because he had not been successful in completing any course of study in the previous five years[31].

   [30] at [12]

   [31] at [13]

5. The Tribunal accepted that Mr Zhang may have found the Bachelor of Arts course difficult, but this did not justify the decision to engage in a course that was not appropriate for the type of visa held[32].  If Mr Zhang had transferred to a diploma course, it was his responsibility to obtain a visa appropriate for the type of course he was enrolled in[33].

   [32] at [13]

   [33] at [13]

6. The Tribunal did not find there to be circumstances beyond Mr Zhang’s control, or extenuating or compassionate circumstances[34].  The Tribunal also considered Mr Zhang’s claim that he was in a relationship with an Australian resident and the purported advice of his agent that “unless he holds a visa, he cannot apply for a partner visa”[35].  The Tribunal did not consider it appropriate for Mr Zhang to hold a student visa for the purpose of enabling him to apply for another visa for another purpose[36].  Nevertheless, the Tribunal did accept that some hardship would be caused by the cancellation of Mr Zhang’s visa because he would be separated from this girlfriend and also because he will not be able to pursue further study in Australia[37]. 

   [34] at [14]

   [35] at [15]

   [36] at [15]

   [37] at [15]

7. Despite this, and after considering the circumstances as a whole, the Tribunal concluded that Mr Zhang’s subclass 573 visa should be cancelled[38].

   [38] at [16]-[18]

The present proceedings

1. These proceedings began with a show cause application filed on 10 November 2014.  Mr Zhang continues to rely upon that application which raises the following ground of review:

   I am a genuine student who has been studying in Australia from high school.  I have provided the relevant documents to the tribunal.  However, the MRT tribunal did not treat me with fairness and justice and did not consider those information are reliable.  The tribunal would not accept that I am genuine student in the first place. (errors in original)

2. The application was filed after the expiration of the 35 day time limit prescribed in s.477(1) of the Migration Act. On 3 December 2014, I ordered by consent that the time for making the application be extended to 10 November 2014, pursuant to s.477(2) of the Migration Act.

3. I also provided Mr Zhang with the opportunity to file and serve an amended application and additional evidence.  He has not taken up that opportunity.  He relies upon his affidavit filed with his application on 10 November 2014. 

4. I also have before me as evidence the court book filed on 12 December 2014. 

5. Mr Zhang denied receipt of the court book.  Exhibit R1 is a letter dated 15 December 2014 from the Minister’s solicitors to Mr Zhang at the address for service nominated in his application.  The letter provided a copy of the court book.  Mr Zhang told me that in November 2014, he changed his address from an address in Ultimo to an address in Cabramatta.  Mr Zhang filed a Notice of Address for Service disclosing the Cabramatta address on 12 January 2016.  There was, therefore, unfortunately, a delay of over 12 months in Mr Zhang notifying his change of address.  I accept in the circumstances that Mr Zhang may not have received the court book.  I provided Mr Zhang with the original of the court book from the court file for the purposes of today’s hearing.  I am satisfied that he has not been prejudiced by the late provision of the court book. 

6. Only the Minister filed written submissions in accordance with the procedural orders I made.  I invited oral submissions from Mr Zhang this afternoon.  He declined to make any submissions in chief. 

7. I raised with the solicitor for the Minister the question of whether it is clear that Mr Zhang had breached a relevant condition on his visa.  This is dealt with somewhat generally at [9] of the Tribunal’s reasons[39].

   [39] CB 62

8. The Minister’s solicitor helpfully provided an extract of clause 573 of the Regulations which establishes that an eligible higher degree student in relation to a subclause 573 visa is a person who is enrolled in a principal course of study for the award of either a bachelor’s degree or a master’s degree by coursework. 

9. Subclause 573.223 provides that if the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, because the Minister is satisfied that the applicant intends to genuinely study in Australia, having regard to the applicant’s circumstances, the applicant’s immigration history and other relevant matters, the applicant meets the requirements of subclause (1A ) or (2).  

10. Subclause 573.231 provides that if subclause 573.223(1A) does not apply, the applicant must be enrolled in, or the subject or a current offer of enrolment in a course of study that is a principal course, and the principal course is of a type that was specified for class 573 visas by the Minister in an instrument made under regulation 1.40A and was in force at the time the application was made. 

11. The Minister’s solicitor handed up an instrument made by the Assistant Minister for Immigration and Border Protection on 16 March 2014.  That instrument establishes that a class 573 Higher Education Sector visa can include a higher education diploma or a higher education advanced diploma. 

12. Mr Zhang had told the Tribunal that he was no longer enrolled in a bachelor course at the University of Sydney and that he had enrolled in a Diploma of Management course at the Sydney College of Business and IT, known as SCBIT.  It does not appear that Mr Zhang provided any documentary support for that assertion.  Hypothetically, it might nevertheless have been possible for Mr Zhang to have satisfied a decision maker that the diploma course he had enrolled in was a qualifying diploma course for the purposes of the ministerial instrument. 

13. However, it appears that Mr Zhang faced another problem.  The Minister’s solicitor also handed up an extract from regulation 1.40 of the Regulations.  Regulation 1.40(2) relevantly provides that if an applicant for a student visa proposes to undertake a course of study that is a registered course, the course is the principal course.  That is a defined term.

14. In Mr Zhang’s case, his bachelor degree had been accepted as his principal course.  It appears that in order to avoid breaching the condition on his visa, he needed to continue to be enrolled in that course or, possibly, to obtain the agreement of the Minister’s Department to a change of course and a change of principal course.  He had not done either. 

15. I conclude that the Tribunal was correct in its assessment that Mr Zhang had breached condition 8516 of his visa.  Mr Zhang was not able to advance anything persuasive in relation to the question of whether the Tribunal should exercise its discretion not to cancel the visa in his favour. 

16. In my opinion, on the basis of my own examination of the material, there is no arguable case of jurisdictional error by the Tribunal.  The Minister’s submissions otherwise deal with the matter as best as could be done, given the generality of the ground in the application.  I agree with those submissions.

Consideration of the ground of review

1. The Minister submits that Mr Zhang’s sole ground of review is misconceived and seeks to engage the Court in impermissible merits review of the Tribunal's decision.  I agree.

2. Contrary to Mr Zhang’s assertion that he is “a genuine student”, the Tribunal did not accept that Mr Zhang had a genuine commitment to studying in Australia because, on Mr Zhang’s own evidence, he was not enrolled in a higher education sector course for which the visa was granted and had not successfully completed any course of study in the five years after completing high school in 2009.  This conclusion was open to the Tribunal on the material before it and for the reasons it gave. 

3. In coming to its conclusion, there is no evidence that the Tribunal did not treat Mr Zhang “with fairness or justice” as alleged by Mr Zhang. In particular, there is no evidence to support a contention that the Tribunal did not comply with its statutory procedural fairness obligations, which are exhaustively set out in Division 5, Part 5 of the Migration Act.

4. Furthermore, to the extent that Mr Zhang contends that the Tribunal “did not consider the information are reliable”, it is not clear what Mr Zhang is referring to.  The Tribunal did not find any of Mr Zhang’s evidence to be unreliable, but instead found that on Mr Zhang’s own evidence the circumstances in favour of cancelling the visa outweighed the circumstances against.

5. In his submissions in reply, Mr Zhang, queried some aspects of the oral exchange between me and the Minister’s solicitor, but otherwise did not make any submissions. 

6. I conclude that Mr Zhang is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.

7. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

8. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Mr Zhang did not wish to be heard on costs.

9. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  18 February 2016