Zhang v Minister for Immigration
[2008] FMCA 351
•6 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZHANG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 351 |
| MIGRATION – Visa – Student Guardian (Class TU, Subclass 580) visa – applicant failed to comply with condition of visa – allegation of bias – no evidence of bias – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.359A – no reviewable error. |
| Migration Act 1958 (Cth), ss.116(1), 116(3), 359A, 474 |
| Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | FENGQIN ZHANG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3285 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 March 2008 |
| Date of Last Submission: | 6 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Shariff |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,290.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3285 of 2007
| FENGQIN ZHANG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant in this case asks the Court to review a decision of the Migration Review Tribunal. The Tribunal had affirmed a decision by a delegate of the Minister to cancel the applicant's Subclass 580 Student Guardian visa. The applicant asks the Court to set aside the decision of the Migration Review Tribunal and make an order that her application should be reconsidered. I note that in the application she refers to the RRT rather than the MRT, but that is a minor slip and nothing arises from it. It is quite clear that the applicant means the Migration Review Tribunal.
The applicant says that the Tribunal's decision should be set aside for three reasons:
a)That the Tribunal did not notify her in writing about information that would be the reason or part of the reason for affirming the decision to cancel her visa. She says that the Tribunal did not comply with the Migration Act and give her an opportunity to comment on that information.
b)The applicant says that the Tribunal's finding that her visa should be cancelled was not based on a rational or logical foundation.
c)The applicant says that the Tribunal was biased against her and did not accept any of her evidence or explanations.
The background to this matter is that the applicant had a student guardian visa because she was in Australia to provide care and welfare arrangements for her son who was of school age and was attending an English course. The conditions on the visa so far as they are relevant are:
(1)under condition 8101 the holder of a Subclass 580 Student Guardian visa must not engage in work in Australia, and
(2)Condition 8537 provides that whilst the student is in Australia, the holder of the Student Guardian visa must live in Australia and stay with the student, provide accommodation and support for the student and provide for the general welfare of the student.
The applicant came under notice when officers from the Department of Immigration & Citizenship visited premises in the Sydney suburb of Jamisontown which were being used as a brothel. I understand that the departmental officers were visiting the premises in the course of their duties. They found the applicant there and she was identified by the owner of the brothel as one of the two girls who worked at the brothel and worked at the brothel under the assumed name of Nancy.
The officers examined the register book which showed that the applicant, under the name of Nancy, had serviced a customer from 12:15 to 12:45 pm on that day. The officers said that the applicant changed from her working dress to her street clothes in her own room at the brothel and then took her belongings with her when she left. When interviewed by departmental officers, the applicant was recorded as having said that her son was no longer living with her but living with friends.
When the applicant was interviewed by departmental officers, she was recorded as having said that her son was no longer living with her but living with friends. Consequently, the Department of Immigration & Citizenship took steps to cancel the applicant's visa because they claimed that she had breached condition 8101, the condition that did not allow her to work, and condition 8537, the condition that she had to live with her son. The decision to cancel the applicant's visa was made on 30th April 2007.
On 8th May 2007 the applicant applied to the Migration Review Tribunal for a review of that decision. She had the assistance of a migration agent and nominated the migration agent to act on her behalf for the purpose of the proceedings. Along with a copy of the Department's decision to cancel her visa, the applicant submitted a typed statement to the Migration Review Tribunal with her application. That statement was also dated 8th May 2007. In that statement the applicant denied that she worked at the brothel. She said that she went there to see a friend of hers. She said that before she went to see the friend she walked through the shops and bought something at a shop. She then explained:
We had lunch together and after that she said she would give me a dress because it was too small for other friends. I have just put on the dress and was going to have a look on the mirror. I was just going through the toilet door when two migration officers coming in. When the officer asked me if I was working there I said I was not working there, I was just visiting a friend, and she totally misunderstood what I mean and saying I was having fun.
The statement went on to say:
I did not know it was a brothel and have never imagined it was a brothel because it is in a factory area and just look like a factory. I was curious about the look on this building but did not think too much. Secondly, I was still living with my son. When I was asked if I had lived with my son, I told them my son was going to move out with his friend. He has started to stay with a friend overnight since March. It was because I was going back to China soon.
I would like him to learn to live independently and he would like to stay with a friend too. But I still cook for him and wash clothes for him every day and help him with his daily living and give him emotional support. I was not leaving my son unattended. I just started to let him learn to live independently. When the migration officer followed me home later that afternoon to see my passport, my son was at home. It proved what I said was true and I was an honest person.[1]
The applicant provided a copy of her passport which contained her visa.
[1] See Court Book page 27.
The Tribunal wrote to the applicant on 25th May 2007. The letter is headed "Invitation to Comment on Information". The letter referred to the provisions of s.359A of the Migration Act. The letter set out two pieces of information which the Tribunal considered was relevant.
The first piece of information related to the applicant having been located at a brothel and being identified as a working girl at the brothel. The letter told the applicant that the information was relevant because it indicated she was working at the brothel in breach of condition 8101 attached to her visa, which states:
The holder must not engage in work in Australia.
The other piece of information related to a statement made to departmental officers that she had not lived with her son since March 2007. The letter told the applicant that this information was relevant because it indicates she was not staying with her son, who was the nominating student, in breach of condition 8537 attached to her visa. That condition provides that the holder of the visa must reside in Australia with the student and stay with him and provide appropriate accommodation and provide for the student's general welfare.
The letter invited the applicant to comment in writing on that information by 1st June 2007.
The applicant's migration agent forwarded a statement to the Tribunal on 31st May 2007 in which the applicant commented on those pieces of information. In the statement the applicant stated that her son is still living with her but stays with a classmate on some occasions.
The applicant also said that it was a misunderstanding by the immigration officers that her visit to a friend was interpreted as working at the brothel. She denied that she knew that it was a brothel and that she did not work there. A copy of the statement can be found at page 40 of the Court Book.
The Tribunal wrote to the applicant on 4th June 2007 inviting her to appear at a hearing of the Tribunal on 25th June 2007. The applicant's migration agent forwarded a response to hearing invitation indicating that the applicant wished to attend the hearing and required an interpreter in the Mandarin language. She also indicated that she wished the Tribunal to hear evidence from the owner of the brothel. The Tribunal wrote to the applicant on 20th June 2007 and rescheduled the hearing till 7th August 2007. The applicant acknowledged that hearing invitation and indicated that she wished to attend the hearing. She provided a mobile telephone number for two people whom she said she wished the Tribunal to take evidence from, one of them being the lady she said owned the brothel. The applicant provided statutory declarations, one from her son, one from her neighbour and one from another student. The applicant attended the hearing and gave evidence. The Tribunal was unwilling to take telephone evidence from the people whom the applicant nominated on the basis that it had no way of ascertaining their identity but allowed the applicant an extension of time to provide further information. The Tribunal signed its decision on 5th October and handed the decision down on 9th October 2007.
A copy of the Tribunal decision record can be found at pages 84 through to 93 of the Court Book. In that decision the Tribunal referred to the provisions of s.116(1) of the Migration Act which sets out grounds for cancellation of a visa. It also refers to mandatory circumstances for cancelling a visa set out in reg 2.43 of the Migration Regulations and noted that the Tribunal was satisfied that such circumstances existed, that s.116(3) of the Act meant that the Tribunal must cancel the visa. The Tribunal also referred to the exercise of a discretion to cancel a visa in other circumstances. The Tribunal set out the claims and evidence considered at pages 86 through to 90 of the Court Book. As far as evidence from other people by telephone was concerned, the Tribunal had this to say:
The Tribunal indicated that rather than taking evidence by telephone from an unknown person, it would give the applicant additional time to submit any further evidence, including evidence by way of statutory declaration.[2]
[2] See Court Book page 89
The Tribunal noted that after the hearing the applicant did submit additional evidence, including a statutory declaration from her son and statutory declarations from a neighbour and a friend of the applicant's son which stated that the applicant and her son lived together.
The Tribunal's Findings and Reasons are set out on pages 90 through to 91 of the Court Book. The Tribunal was satisfied that the applicant had failed to comply with condition 8101, which is the condition that said that the holder of the visa must not engage in work in Australia.
The Tribunal accepted the evidence of the departmental officers of having located the applicant in the brothel and the evidence of the owner of the brothel admitting that the applicant was one of the two women who worked there. The Tribunal noted the evidence of the register book showing that the applicant, under her work name, had serviced a customer during that day. The Tribunal noted the applicant's evidence that she was not working at the brothel, did not know it was a brothel and was just visiting a friend. The Tribunal did not accept that evidence and did not find it plausible that the applicant was visiting a friend at a brothel or that she would not know it was a brothel.
The Tribunal found it particularly significant that the owner of the brothel confirmed to the departmental officers that the applicant was one of the two people who were working for her on the day.
The Tribunal also relied on evidence from the departmental officers that the applicant had changed her working dress in her own room and collected her belongings in the brothel and found the applicant's explanation for that implausible. The Tribunal found that the applicant was working at the brothel in breach of condition 8101 and went on to say:
For the reasons given above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As the Tribunal has decided that a ground for cancellation exists and that ground does not involve circumstances that require cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel a visa should be exercised.
The Tribunal then set out the reasons for exercising its discretion to cancel or not to cancel the applicant's visa. The Tribunal accepted that the applicant had lived with her son but went on to find:
However, the applicant indicated in her statement to the Tribunal dated 8 May 2007 that her son had started to stay overnight with friends since March to make him more independent because the applicant was going back to China soon. The Tribunal also notes that the applicant's son is now over 18 years of age.
The Tribunal further noted:
The applicant has indicated that she wanted to stay in Australia to be with her son until her visa expired. The Tribunal notes that if it had not been cancelled, her visa would have ceased on 31 July 2007.[3]
[3] See Court Book page 91.
The Tribunal stated that having considered all the circumstances, it was satisfied that the reasons for not cancelling did not outweigh the reasons for cancelling the visa and concluded that the visa should be cancelled.
The applicant commenced proceedings for review in this Court by filing an application and an affidavit on 23rd October 2007.
The application sets out three grounds, as I have said:
a)an allegation of a breach of s.359A of the Migration Act;
b)a claim that the Tribunal finding was not based on a rational and logical foundation; and
c)that the Tribunal had bias against her.
The applicant did not file any written submissions but attended Court and made oral submissions in support of her case. I have had the opportunity of reading the comprehensive and, if I may say so with respect, well-prepared submissions prepared by counsel for the Minister, Mr Shariff, and I have heard brief oral submissions from him. Counsel for the Minister submitted that each of the applicant's grounds for review must fail.
As far as the first ground, a breach of s.359A of the Act, was concerned, he submitted that the claim was factually incorrect. As for the second ground, a claim the decision was not based on a rational and logical foundation, he submitted that:
a)the ground was not particularised and appeared to be meaningless; and
b)that the Tribunal's decision did not appear to be based on either an irrational or illogical foundation.
c)In respect of the ground of bias, Mr Shariff submitted that the only matter in support of that ground raised by the applicant is that the Tribunal did not accept her evidence. He submitted that that did not establish that the Tribunal was biased and referred to the decisions of Minister for Immigration & Multicultural Affairs v Jia Legeng[4] and also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[5]. Mr Shariff submitted that there was nothing in the Tribunal's decision that remotely suggested actual or apprehended bias.
[4] (2001) 205 CLR 507 at [69]
[5] (2002) 194 ALR 749 at [56]-[59]
In considering the applicant's grounds, I note that the Tribunal did indeed write to the applicant care of her migration agent in a letter written to comply with the requirements of s.359A of the Migration Act. The letter set out the information that went towards the alleged breach of (1) condition 8101, and (2) condition 8537. The applicant was invited to comment in writing on that information, and the relevance of the information was explained in the letter. The applicant did comment in writing within time and the Tribunal considered the explanations.
In respect of condition 8101, however, the condition that forbade the applicant from working, the Tribunal did not accept the explanation. The applicant was not able to point to any other information upon which the Tribunal had relied to her detriment that was not covered by the s.359A letter. I am of the view that no breach of s.359A of the Act has been shown and ground (1) must fail.
As to the claim that the Tribunal's satisfaction that the visa should be cancelled was not based on a rational or logical foundation, even if irrationality or logicality was a ground for jurisdictional error, I am not satisfied that the Tribunal's decision is in any way irrational or illogical. The Tribunal considered the evidence relating to the Department's claim that the applicant was working in the brothel and considered the applicant's explanations that she was not. The Tribunal preferred the evidence of the departmental officers over that of the applicant. It was quite open to the Tribunal to take that course and the finding made by the Tribunal was one which was open to the Tribunal on the evidence. There is nothing illogical or irrational in assessing and then accepting or rejecting evidence and it does not enliven jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia)[6]. The applicant's ground (2) fails.
[6] (2003) 211 CLR 476
The third ground is an allegation of bias. Bias is a serious allegation. It must be strictly alleged and proved. It is not the case that bias can be proved merely on the basis that the Tribunal did not accept the applicant's evidence but accepted the evidence of the Department.
That does not establish bias. As I said, there was evidence upon which it was open to the Tribunal to make the findings that it did.
I note that the Tribunal did not find that there was a breach of condition 8537, the allegation that the applicant was not living with her son. The applicant had produced evidence by way of statutory declarations and her own evidence that she was still living with her son and caring for him and it appears that the Tribunal accepted this evidence. The Tribunal did not make a finding that there was a breach of condition 8537. It only made a finding that there was a breach of condition 8101, which was the condition relating to the applicant not working in Australia.
Having made that finding, the Tribunal then considered whether it should exercise its discretion in the circumstances of cancelling the applicant's visa. It is clear from the Tribunal decision record that the Tribunal considered the appropriate factors and gave weight in particular to these factors:
a)the applicant had said that her son had started to stay overnight with friends since March 2007 to make him more independent because she was going back to China soon;
b)the applicant's son was over the age of 18 years at the time of the hearing; and
c)if it had not been cancelled, the applicant's visa would have ceased on 31st July 2007 in any event.
That of course was a date prior to the Tribunal hearing on 7th August 2007. The Tribunal gave weight to those factors and was satisfied that the reasons for not cancelling the visa did not outweigh the reasons for cancelling the visa. No error is demonstrated in the way in which the Tribunal exercised its discretion.
The applicant is not legally represented. She has said in her own documentation that she does not have an extensive education and these proceedings have not been easy for her. The Minister of course is represented by a barrister and a solicitor. I have read through the Tribunal decision independently of the Minister's submissions and the applicant's application in order to ascertain whether any other jurisdictional error can be identified. I cannot identify any arguable case of jurisdictional error. Accordingly, the Tribunal decision is a privative clause decision as set out in s.474 of the Migration Act. It is final and conclusive and not subject to orders in the nature of certiorari or mandamus. It follows that the application will be dismissed.
There is an application for costs on behalf of the Minister in the sum of $4,290.00. As the applicant has not been successful, a costs order is appropriate. The amount sought is within the range set out in the Federal Magistrates Court scale and is an appropriate figure.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 17 March 2008
3
1