Zhang v Minister for Immigration
[2013] FCCA 1302
•9 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZHANG & ORS v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1302 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Alsaket v Minister for Immigration & Anor [2012] FMCA 411 Minister for Immigration v Li (2013) 297 ALR 225 Minister for Immigration v SZFHC (2006) 150 FCR 439 Zaman v Minister for Immigration & Anor [2012] FMCA 620 |
| First Applicant: | RUIHUA ZHANG |
| Second Applicant: | MEIJIN WU |
| Third Applicant: | DEQIN ZHANG |
| Fourth Applicant: | DEQI ZHANG |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1317 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2013 |
REPRESENTATION
The First Applicant appeared in person
| Solicitors for the Respondents: | Ms A Carr DLA Piper |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicants are 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 OF AUSTRALIA AT SYDNEY |
SYG 1317 of 2013
| RUIHUA ZHANG |
First Applicant
MEIJIN WU
Second Applicant
DEQIN ZHANG
Third Applicant
DEQI ZHANG
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (Tribunal). The Tribunal decision is dated 22 May 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants Employer Nomination (Residence) visas. There are four applicants. The first applicant, Mr Ruihua Zhang was the principal visa applicant. The other applicants are his wife and adult children.
Background facts relating to the visa application and the Tribunal decision on it are set out in the Minister’s written submissions filed on 29 August 2013.
Mr Zhang and Ms Wu (the second named applicant) are husband and wife. Mr Zhang and Ms Wu are the parents of the third and fourth named applicants (who are adult children).[1] All of the applicants are citizens of the People's Republic of China.[2] The applicants arrived in Australia on 3 August 2006 at which time the applicant was a holder of a Business (Long Stay) Subclass 457 visa and the second, third and fourth named applicants were dependents of Mr Zhang.[3]
[1] Court Book (CB) 11.
[2] CB 35-42.
[3] Ibid.
Mr Zhang applied for an Employer Nomination (Residence) (Class BW) visa on 9 July 2010.[4] Mr Zhang indicated that he was nominated under the Employer Nomination Scheme by Meng Jing Luo & Hong Xia Wu to fill the nominated occupation of “cook”.[5]
[4] CB 1-21. The second, third and fourth named applicants applied as members of Mr Zhang’s family unit.
[5] CB 3.
The application was refused on 8 March 2011.[6] Consequently, the applicants applied to the Tribunal for review of the original decision on 18 March 2011.[7]
[6] CB 53-59.
[7] CB 60-67.
The Tribunal wrote to the applicants' advisor on 30 April 2013 inviting the applicants to attend a hearing on 22 May 2013.[8] The invitation highlighted that if the applicants did not attend the scheduled hearing then the Tribunal could proceed to make a decision without taking any further steps to enable another opportunity to them to appear before it.[9]
[8] CB 73-76.
[9] CB 75.
The Tribunal records that the applicants did not reply to the letter,[10] nor did the applicants attend the hearing.[11] The Tribunal confirmed that it had sent the hearing invitation to the (last) nominated facsimile address and noted that it had received confirmation of successful transmission. The Tribunal proceeded to make its decision on 22 May 2013,[12] without taking further action to enable the applicants to appear before it.[13]
[10] CB 92.
[11] CB 82-85.
[12] CB 89-94.
[13] Pursuant to s.362B of the Migration Act.
The issue before the Tribunal was whether Mr Zhang satisfied clause 856.221 to Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
The Tribunal was satisfied that, at the time of application, Mr Zhang had been nominated by an employer under the Employment Nomination Scheme for an appointment in the business of that employer and, consequently, Mr Zhang met the requirements of clause 856.213(a).[14] However, the Tribunal noted that Mr Zhang had not provided any evidence to it that that appointment had been approved.[15]
[14] See [18] at CB 93.
[15] See [19] at CB 93.
Consequently the Tribunal found that Mr Zhang did not satisfy the requirements of clause 856.221.[16] Further, as there was nothing before it to indicate that the other applicants were nominated by an employer at the time of application, the Tribunal found that the other applicants did not satisfy the requirements of clause 856.213(a).[17]
[16] See [20] at CB 93.
[17] See [21] at CB 93. Further, as no family member satisfied a primary criteria, it was found that none could satisfy an essential secondary criteria on the basis of being a member of the family unit.
These proceedings began with a show cause application filed on 13 June 2013. Mr Zhang continues to rely upon that application. It was supported by an affidavit which I received as a submission which set out the grounds of the application. The Minister’s submissions at [12] repeat those grounds:
1. Under 353 Tribunal's way of operating, The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. I had applied MRT review my application in 18 March 2011, and at that time, at that time my sponsor was willing to sponsor me and he need me to work for them as soon as possible. It took more than two years for MRT to allocate one member to my case. My job opportunity was expired after the extended delay of processing my case.
3. I found the MRT did not comply with its obligations under the ACT. The MRT invited me to give oral evidence and present arguments at a hearing. However, due in personal reasons I miss the hearing. I did send a letter to postpone my hearing on 20th May 2013, but I did not receive any letter other than the refuse letter.
4.Under these circumstances, section 362B(2) provides that sections 360(1), which requires the MRT to invite me to a hearing, the MRT has no fully exercise this section act.
5.I found there are some issues arising in this MRT decision which would lead to a finding of jurisdictional error.
I received as evidence the court book filed on 8 July 2013.
Mr Zhang relies upon an affidavit filed on 22 August 2013. The body of that affidavit repeats the grounds in support of the application and also seeks legal assistance. I received the affidavit for the purpose of introducing a letter annexed to it which was purportedly sent to the Tribunal seeking a postponement of the Tribunal hearing. Mr Zhang was cross-examined on his affidavit. Mr Zhang asserts that the Tribunal’s process was unfair because the Tribunal proceeded in his absence. He asserts that he sent a letter to the Tribunal on 20 May 2013 seeking a postponement of the Tribunal hearing due to his wife’s poor health.
Mr Zhang gave evidence that he wrote the letter on 19 May 2013 and sent it in the mail on 20 May 2013. He said that he obtained the Tribunal’s address from a person he described as his friend but that person, it transpired, was Mr Zhang’s migration agent, Mr Zhaohui Xu, who was appointed as Mr Zhang’s authorised recipient.[18] On further questioning from me, Mr Zhang said that Mr Xu prepared the letter and gave it to him to send. If that is right, it was apparently intended by Mr Xu that Mr Zhang would fax it to the Tribunal as the Tribunal’s fax number appears at the top of the letter. However, Mr Zhang conceded that the letter was not faxed. He maintains that he posted it in the mail. There is no evidence of the letter ever having been received by the Tribunal.
[18] CB 72
It is apparent from the Tribunal’s decision that the Tribunal was unaware of any request for an adjournment. At [17] of its reasons,[19] the Tribunal records that no response was received to the hearing invitation sent to Mr Zhang’s authorised recipient. Mr Zhang concedes that he was aware of the Tribunal hearing. I have real doubt whether any letter seeking an adjournment was sent to the Tribunal. Mr Zhang was very vague about his wife’s asserted illness. His evidence about who prepared the letter was internally inconsistent. It is difficult to believe that Mr Zhang would ignore the fax number provided by Mr Xu and send the letter in the mail when he must have known that a Tribunal decision was imminent.
[19] CB 92
It is, however, unnecessary for me to make any factual finding as to whether the letter was ever sent to the Tribunal. It is sufficient to find that the letter was never received. I see no arguable case of jurisdictional error based upon the purported letter.
The Minister’s submissions otherwise deal adequately with the grounds advanced in the affidavit accompanying Mr Zhang’s application. I agree with those submissions and adopt them with necessary amendments.
In regard to Ground 1, the applicants complains that the Tribunal breached s.353 of the Migration Act.
The High Court of Australia has found that this section does not import common law procedural fairness requirements and, consequently, does not give grounds for jurisdictional error.[20]
[20] Minister for Immigration v Li (2013) 297 ALR 225 at [16] per French CJ and at [52]-[53] per Hayne, Kiefel and Bell JJ agreeing.
Therefore, this ground does not raise an arguable case for the relief sought.
In regard to Ground 2, the applicants complain that the Tribunal should not have proceeded to make its decision in the absence of Mr Zhang as he had written to the Tribunal requesting an adjournment of the hearing.
Having regard to my factual findings, and the circumstances disclosed in the court book, pursuant to s.362B of the Migration Act, the Tribunal was entitled to proceed to make its decision without enabling the applicants another opportunity to appear before it.
The Tribunal’s hearing invitation complied with all of the statutory and regulatory requirements.[21] Specifically:
a)The hearing invitation clearly set out the hearing date and time at which the hearing would take place and, further, stated that if the applicants did not appear at the scheduled hearing that the Tribunal may proceed to make its decision without enabling the applicants another opportunity to appear before it.[22]
b)The hearing invitation was sent to Mr Zhang’s (last) nominated facsimile number for service.[23] The applicants were deemed to have received the hearing invitation at the end of the day on 30 April 2013[24] and, further, the Tribunal noted that it had received confirmation of successful transmission.
[21] Sections 360, 360A, 362B, 361, 379A, 379C of the Migration Act and regulation 4.21 of the Regulations.
[22] Sections 360A and 362B of the Migration Act. The Minister respectfully submits that the hearing date and time was a reasonable period as is prescribed in the Regulations.
[23] Sections 360A and 379A of the Act.
[24] Section 379C(5) of the Act.
I reject any contention that the Tribunal should have made inquiries into the applicants' absence.
As the Tribunal complied with ss.360(1) and 360A of the Migration Act, the Tribunal was entitled to proceed to make a decision pursuant to s.362B of the Migration Act.[25]
[25] NBBL v Minister for Immigration (2006) 152 FCR 592.
There is no obligation on the Tribunal to make inquiries into the application lodged and establish if there might have been another avenue of communicating with Mr Zhang.[26]
[26] See Minister for Immigration v SZFHC (2006) 150 FCR 439 at [39]; Zaman v Minister for Immigration & Anor [2012] FMCA 620 and Alsaket v Minister for Immigration & Anor [2012] FMCA 411.
I conclude that Mr Zhang has failed to advance an arguable case of jurisdictional error by the Tribunal. 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).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Mr Zhang indicated that he would work hard to pay the costs and also indicated his wish to seek leave to appeal. I will order that the applicants are 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.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 10 September 2013
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