Zhang v Minister for Immigration
[2011] FMCA 941
•10 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZHANG v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 941 |
| MIGRATION – Review of decision of the Migration Review Tribunal – request for impermissible merits review – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.476, Pt.5 Migration Regulations1994 (Cth), Sch.2 Federal Magistrates Court Rules 2001 (Cth), r.11.11 |
| Minister for Immigration and Ethnic Affairs vWu Shan Liang& Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 237 ALR 64 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441; (2003) 195 ALR 1 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1 |
| Applicant: | SHUANGLEI ZHANG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1465 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 10 October 2011 |
| Date of Last Submission: | 10 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 10 October 2011 |
REPRESENTATION
| The Applicant: | By her litigation guardian. |
| Appearing for the Respondent: | Mr O Jones |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Pursuant to Rule 11.11(3) of Federal Magistrates Court Rules 2001 (Cth) the applicant’s litigation guardian Alei Zhang, at her request, is removed as the applicant’s litigation guardian for the purpose of these proceedings.
The applicant’s mother, Wu Xinghua, is appointed as the applicant’s litigation guardian pursuant to Rule 11.11 of the Federal Magistrates Court Rules2001 (Cth).
The application made on 12 July 2011 is dismissed.
The applicant’s litigation guardian, Wu Xinghua, pay the first respondents costs set in the amount of $3,230.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1465 of 2011
| SHUANGLEI ZHANG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me today an application made on 12 July 2011 under s.476 of the Migration Act1958 (Cth) (“the Act”) seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 15 June 2011, which affirmed the decision of a delegate of the respondent Minister to refuse the applicant a Student (Temporary) (Class TU) Visa.
Background
The applicant is a national of the People’s Republic of China (“China”). Relevantly, I note from the bundle of relevant documents that has been put before the Court (the “Court Book” – “CB”) that the applicant did hold a subclass 457 business long stay visa, which expired on 7 February 2010. I note for reasons which will become very clear in a moment, on 16 June 2010, more than 28 days after this visa ceased, the applicant applied for a student visa (see CB 1 to CB 32).
The Delegate
The applicant was born in 1997 (now therefore aged 14 years), and it appears that during her time in Australia the applicant was a school student. The material before the Court also reveals that the application for the student visa was refused by the Minister’s delegate on 13 October 2010 (CB 33 to CB 38).
The delegate found that the applicant did not meet the prescribed criteria for any subclass of visa relevant to the Student (Temporary) (Class TU) class of visa (CB 35 to CB 36). This decision was reached on the basis that the applicant did not, at the relevant times, hold a substantive visa, and therefore did not meet the criteria under cl.571.211 of Sch.2 of the Migration Regulations1994 (Cth) (“the Regulations”), which applied to the class of visa for which the applicant had applied (CB 36). Further, the delegate found that the last substantive visa held by the applicant, that is the business visa, was not one of the visas enumerated in cl.571.211(3)(b), also a requisite for the visa that she had subsequently applied for (CB 36).
The Tribunal
On 27 October 2010 the applicant applied to the Tribunal for review of the delegate’s decision (CB 39 to CB 45). I note in this application the applicant was represented by a migration agent, Wei Wei Wang (CB 43). A different agent appears to have represented the applicant before the Minister’s department. In any event, the applicant was invited to appear before the Tribunal and attended a hearing on 14 June 2011 (CB 47 to CB 48). As she was a minor at law, the applicant’s elder sister assisted her and spoke on her behalf.
The Tribunal found that, at the relevant time, the applicant did not hold a substantive visa, and was therefore not eligible to be granted the student visa for which she had applied (cl.571.211(2), (4) and (6) and Sch.2 of the Regulations). In these circumstances, the issue then before the Tribunal was whether the applicant met the requirements of cl.571.211(3) ([18] at CB 54). The Tribunal in this regard found, on the material before it, that the last substantive visa held by the applicant was a business visa, which did not meet the requirements of cl.571.211(3)(b) ([19] at CB 54).
What must be noted is that that finding alone, which was open to the Tribunal to make on what was before it, was a sufficient basis for it to affirm the decision made by the delegate to refuse the grant of the student visa to the applicant.
But the Tribunal also further found that, even if the business visa had been one of the types or subclasses of visas enumerated in cl.571.211(3)(b) of the Regulations, the applicant still did not meet cl.571.211(3)(c), as the application made was lodged more than 28 days after the last substantive visa had ceased ([20] at CB 54). Given the nature of the Tribunal’s first finding, it was not strictly necessary for the Tribunal to go on and consider this second element, but there is no error at law in it having done so.
Neither finding is attendant with any doubt such as to question the certainty of the Tribunal’s factual findings. Both findings, on their own, stand as the basis for the affirmation of the delegate’s decision. What must be understood, for the benefit of the applicant and those who have assisted her, is that the Regulations in this regard are very clear and in a sense contain little, if any, flexibility.
In the particular circumstances presented by the applicant’s application, it is clear that the Tribunal took into account submissions made on the applicant’s behalf, in particular that the applicant’s situation was compelling because of disruption to her studies, and claims that they (the applicant, her sister and mother) had been victims of a previous agent’s actions.
But as the Tribunal explained, under the regulatory scheme that applied to the applicant the Tribunal had no discretion to waive the relevant criterion in the applicant’s case. On what was before it, I cannot see any legal error in any of the findings made by the Tribunal.
Before the Court
By way of application to the Court, which it appears (and was confirmed) was made by the applicant’s mother on her behalf, the applicant has put as the grounds of the application as follows:
“1. I am a Chinese citizen and have been a genuine student since I arrived in Australia. I was cheated by my previous migration agent who assisted with my student visa and caused my visa being refused.
2. I always obey my visa condition and never have breached it. Currently I have been studying very hard to complete my course.
3. It is not fair for me not to be granted student visa and continue my study in Australia.”
The applicant also, under the heading of “Orders Sought by the Applicant”, put forward the following:
“1. I disagree with Immigration and MRT’s decision. They did not consider that I have been a genuine student and had not breached my visa condition.
2. MRT did not consider the fact that I have been cheated by my previous migration agent who assisted with my student visa and caused my visa being refused.
3. MRT should granted my student visa based on my compelling and compassionate reasons.”
For reasons of clarity, I note that I will refer to these last three as complaints rather than orders sought, because they are clearly not expressed as seeking orders from the Court.
When the matter first came before the Court at the first Court date, on 10 August 2011, the applicant appeared in person and was assisted by her adult sister. An interpreter in the Mandarin language was also present. At that time the applicant’s sister, with her consent, was made the applicant’s litigation guardian for the purposes of these proceedings.
When the matter was called before the Court today, the applicant’s sister requested that she be removed as the applicant’s litigation guardian on the basis that their mother was in Court today, and was better placed to represent the applicant’s interests. In particular, that it was the applicant’s mother who had made the application to the Court on behalf of her younger daughter.
I made orders removing the adult sister as the litigation guardian and, after explaining her obligations to her, appointed the applicant’s mother as her litigation guardian. I note again that an interpreter in the Mandarin language assisted both the applicant and her litigation guardian. Mr O Jones appeared for the first respondent.
I granted leave for the respondent’s written submissions to be filed in Court and adjourned for the purpose of enabling those submissions to be translated for the litigation guardian. I note in particular that, despite opportunities provided by orders made at the first Court date, nothing further has been filed on the applicant’s behalf, nor by the applicant, in these proceedings.
When given the opportunity to make submissions, the applicant’s mother, as her litigation guardian, submitted that the Court should assist her daughter because there were compelling and compassionate grounds for doing so. I understood that what was meant by that was that the Court should intervene to ensure that the visa that had been applied for was granted to the applicant.
Consideration: The Oral Complaints
It is quite clear that the applicant’s litigation guardian has misunderstood the nature of the proceedings before this Court. In the circumstances, what her submissions amounted to was nothing more than a challenge to the factual findings made to the Tribunal, and a request to this Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs vWu Shan Liang& Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481).
I can only agree with the Minister’s written submissions that the grounds as pleaded, and indeed the additional complaints, are, in the circumstances of this case, not sustainable. It is the case, as I have already said, that the Tribunal clearly and correctly applied the criteria that were relevant to the visa applied for. It is clear that the applicant did not meet the criteria in at least two important and essential ways that I have already identified. While the Tribunal did note submissions made on behalf of the applicant, the Tribunal was correct in finding that it had no discretion to proceed other than the way that it did given the nature of the relevant criteria it was required to address.
Consideration: The Complaints in the Application
It is the case, in light of those circumstances, when regard is had to the grounds of the application and the complaints made in the application, that there are no reasonable prospects of success in anything that is said in that application.
In this regard, I note that the applicant’s mother told the Court that she had relied on the advice and assistance of a migration agent who had drafted these grounds of the application, and to whom she had paid money for that purpose. It is of concern to this Court that persons such as the applicant and her mother, who, when it comes to matters of migration laws and regulations, are in a vulnerable position, pay money to migration agents, who, at least in this case, have demonstrated no understanding or knowledge of relevant laws and the relevant regulatory scheme, and have pressed this litigation in light of such inadequate advice.
Ground One and Complaint Two
In any event, dealing with each of the matters as put before the Court, the first ground, and what I will describe as the second complaint, are of such nature that they can be dealt with together. In effect, the complaint is that the migration agent who previously assisted in the preparation of the application (I understand this to be the application made to the Minister’s Department for the student visa) “cheated” the applicant and caused the application to be refused by the delegate. An additional element is found in the orders sought, the complaint, which is that the Tribunal did not consider this information when making its decision.
First, neither the material before the Court nor, despite opportunity offered to the litigation guardian today, was any substantiation made of the complaint that the applicant was “cheated” by the migration agent. On its face, that alone would not reveal jurisdictional error on the part of the Tribunal.
It may be that the agent who drafted this application to the Court for the applicant and her mother may have had in mind some attempt to assert some sort of fraudulent action or conduct on the part of the first migration agent. But even if that were the case, despite opportunity, no amended application has been put before the Court to press any such claim, nor to explain it. Nor, importantly, has any evidence been provided to the Court in relation to any complaint that even asserts fraud, let alone is sufficient to sustain any such charge.
Of course, it is the case that fraud committed by a third party, such as a migration agent, can in certain circumstances vitiate the process before the Tribunal (SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 237 ALR 64). But in the present case the applicant has not brought anything to even suggest that the alleged conduct by the first migration agent amounted to any fraud, let alone any evidence that any such conduct was committed in the course of the conduct of the review by the Tribunal, or that it vitiated the process before the Tribunal.
Rather, from the circumstances presented and the way the complaint has been drafted, it appears that this was meant as some attack on the conduct of the first migration agent in relation to the application for the visa before the Minister’s department. In such circumstances, this Court has no power to review the delegate’s decision. That decision is a “primary decision” within the meaning of s.476 of the Act. It is not only reviewable, but has been reviewed by the Tribunal under Pt.5 of the Act. Therefore there is no error that can be discerned arising from any such conduct vitiating the Tribunal’s conduct of the review.
The applicant’s complaint that the Tribunal did not consider that she had been cheated by her previous agent does not succeed. It is clear that the Tribunal took into account the applicant’s bare assertion (see [22] at CB 55). But, as I said earlier, in circumstances where the Tribunal found that it was only empowered to apply the relevant statutory criterion and that no discretion was granted to the Tribunal to waive the legislative requirements, no error is revealed in this regard.
It may be that the applicant and her mother feel that they were cheated by the first migration agent. But nothing that they put to the Tribunal, from the material that is before the Court, nor indeed anything that they have put to the Court, reveals that any such conduct was such as to then subsequently vitiate the process before the Tribunal.
There is, of course, a difference between an agent acting negligently, and even recklessly, and establishing the kind of fraudulent conduct that may have assisted the applicant. Although noting of course that it is the process before the Tribunal, and not the delegate in that regard that is of central importance in the context of the proceedings currently before this Court.
Ground one, in the circumstances, reveals no prospects of success and ultimately does not assist the applicant.
Ground Two
The second ground of the application asserts that the applicant never breached her visa conditions. Presumably, this includes a previous visa held by the applicant. This simply, again, is misconceived, with no reasonable prospect of success. The reason is that it does not assert any jurisdictional error on the part of the Tribunal. As I said before, cl.571.21 of Sch.2 to the Regulations requires the applicant to hold a current substantive visa, that is current at the relevant time before the Tribunal, of the type set out in cl.571.21(2)(a), (4)(a) or (6)(a).
This applicant was not the holder of any such substantive visa. As I said earlier, in the alternative, the last substantive visa to have been held must have been one of the five visas set out in cl.571.21(3)(a) of the Regulations. Again, the business visa previously held by the applicant does not fall within what was set out in that subclause. It is the case, therefore, that the applicant’s devotion to her studies, whether it was diligent or lax, was not a relevant consideration in determining whether to grant a student visa under cl.571.21(3).
Similarly, that subclause does not require the Tribunal to consider the applicant’s previous compliance with visa conditions. Had the Tribunal found that the applicant met the requirements of cl.571.21(3) of the Regulations, then compliance with any previous visa conditions may have been a matter that should have been considered in those circumstances. However, it is the case, as I have repeatedly said, that the applicant’s application did not satisfy that criterion, and therefore there was no error in the Tribunal then not proceeding to consider any previous adherence to visa conditions.
I should just also note that in deciding whether an applicant is eligible for a student visa, the Tribunal must apply the appropriate statutory regime set out in cl.571.21 of the Regulations. In this regard I note and agree with the Minister’s submission that the Tribunal was not required to consider whether the applicant fulfilled the criteria for any other visa (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441; (2003) 195 ALR 1 per Gleeson CJ, Gummow, Hayne and Callinan JJ).
Ground two, in all, again reveals no reasonable prospects of success. It is not made out.
Ground Three
In ground three, in effect, the applicant asserts that it was unfair, or not fair, that the Tribunal did not grant her a student visa. The difficulty for the applicant in this regard is, as was said in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1, that what is required is a fair process, not necessarily a fair outcome.
In essence, therefore, ground three again reveals no reasonable prospects of success for the applicant, as really it seeks impermissible merits review from this Court (Wu Shan Liang).
Complaints One and Three
In relation to complaints one and three, complaint one asserts that both “Immigration” (the Minister’s department) and the Tribunal failed to consider that the applicant was a “genuine” student who had not breached any previous visa. If what is meant by the reference to “Immigration” is the delegate’s decision, then, as I said earlier, this Court has no jurisdiction to review the delegate’s decision given the provisions of s.476 of the Act. This complaint therefore, in that regard, cannot assist the applicant now.
Second, and in relation to the Tribunal, the Tribunal is not required to consider the study behaviour of an applicant, nor their previous compliance with visa conditions, when deciding whether an applicant is eligible for a student visa under cl.571.21(3) of the Regulations, as I have already said.
The third complaint was the sole complaint raised by the applicant’s mother, her litigation guardian before the Court today. That is, that the Tribunal should have granted the application for the student visa based on compelling and compassionate grounds.
As I have already said, such consideration was not engaged in the circumstances of the applicant’s case because, as I have already said in finding no error in what the Tribunal relevantly said, the consideration of compassionate and compelling grounds did not arise as a relevant consideration, and was not engaged in any way, as the applicant failed to satisfy the requirements of cl.571.21 of the Regulations.
As the Tribunal made clear to the applicant and her sister at the time of the hearing, it had no discretion to consider these other elements, be they compassionate, compelling, or otherwise, given its initial findings which, as I said, were open to it on what was before it, and for which it gave reasons.
Conclusion
As I sought to explain to the applicant’s mother, her litigation guardian today, for the applicant to succeed before the Court, the Court would need to find some legal error, indeed, some jurisdictional error on the part of the Tribunal. No such error arises from the grounds as pleaded, nor from the complaints put before the Court. Grounds and complaints which I have already described as raising no reasonable prospect of success, let alone making out any jurisdictional error on the part of the Tribunal. Nor can I otherwise discern any such error on the part of the Tribunal. The application, therefore, is to be dismissed. I will make an order accordingly.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 16 December 2011
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