ZHANG v Minister for Immigration

[2016] FCCA 1666

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHANG v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1666

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Child Migrant (Class AH) visa – application for extension of time – whether the Tribunal erred in making adverse credibility findings against the applicant – whether the Tribunal took irrelevant considerations into account – invitation for impermissible merits review – no adequate explanation for delay – no arguable jurisdictional error identified – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477

Migration Regulations 1994, reg.1.03, sch.2, cl.101.213

Applicant: LAZI ZHANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 883 of 2016

Judgment of: Judge Street

Hearing date: 5 July 2016

Date of Last Submission: 5 July 2016

Delivered at: Sydney

Delivered on: 5 July 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the First Respondent: Ms A Lucchese
Sparke Helmore

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 883 of 2016

LAZI ZHANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision that the Tribunal made on 19 January 2016, affirming the decision of the delegate not to grant the visa applicant a Child Migrant (Class AH) visa. The review applicant lodged the application to this Court on 14 April 2016 and accordingly, an extension of time is required under s.477 of the Migration Act 1958.

2. At the commencement of the hearing, the Court explained to the applicant that the matter was listed for the hearing of the application for an extension of time under s.477. The Court explained to the applicant that the issues under s.477 involved whether there was a satisfactory explanation for the delay in the commencing of proceedings, after being notified of the Tribunal’s decision and whether the grounds identified a case of sufficient merit to warrant an extension of time in the interests of the administration of justice.

3. The Court explained to the applicant that the question of whether there was a sufficiently arguable case in relation to the grounds depended upon whether it could be said there was a sufficient argument that the Tribunal’s decision was affected by relevant legal error.  The Court explained to the applicant that the relevant legal error had to be either an excess of statutory power, or a denial of procedural fairness to the review applicant or to the visa applicant.

4. The Court explained that this meant, in summary, that there had to be an argument that the decision of the Tribunal was either not lawful or was not fair. The Court explained that if satisfied there was an adequate explanation for the delay, and an arguable case of jurisdictional error, the matter would be the subject of an extension of time and fixed for hearing on a further occasion.  The Court explained that if not satisfied that there was an adequate explanation for the delay in filing of the application and a sufficiently arguable case, the application for an extension of time would be dismissed.

5. The applicant confirmed that he understood what had been said by the Court.  The Court explained to the applicant that if he wished, he could give oral evidence to explain the delay and that if he did so, that would be the subject of cross-examination by the first respondent. The Court also explained that having identified the evidence, the Court would then hear submissions from the applicant and then submissions from the solicitor for the first respondent and hear the applicant in reply.

6. The applicant confirmed he understood the nature of the hearing as explained by the Court.  The applicant indicated he wished to give oral evidence.  In the application, the applicant identified in support of the grounds for an extension of time that his migration agent went overseas and did not return until 15 February 2016.  That date of the return of the migration agent was still in time for the filing of the application in this Court.  The applicant made a reference in the application to not writing or reading English, alleged that he was dependent on other people to help him, that he had tried two times to lodge the application, and that this was the third time.

7. In the oral evidence by the applicant, he said he had attended the registry before time had expired, and that he had understood that there was a need for him to file the material before the expiry of time, because he was able to read a little bit.  The applicant asserted that he was told by an officer of the registry that there was a missing document.  The applicant then gave evidence that he had only ever attended the registry on one occasion prior to the filing of the document on 14 April 2016 with the assistance of his migration agent.

8. The applicant gave no satisfactory explanation as to why he did not lodge the documents within time.  The applicant’s reference to having attended upon the registry within time and being told that there was a further document that was required to be provided was raised with the applicant, and the applicant maintained that he had to await the return of his agent.  The applicant’s oral evidence as to when his agent returned was also one in which the applicant did not recall the date on which the agent returned.

9. The applicant was an unsatisfactory witness and I do not accept his explanation for the delay.  I find that there is no satisfactory explanation for the delay that occurred in the present case.  However, the material issue is whether or not the application discloses sufficiently arguable grounds to warrant an extension of time.  The visa applicant is a national of China and is the daughter of the review applicant.  On 23 January 2015, the visa applicant applied to the department for a grant of visa, as she was by that time over the age of 18.

10. The Tribunal identified that the delegate refused to grant the visa on the basis that cl.101.213 was not met because the delegate was not satisfied the applicant met the study requirement. The Tribunal noted that the review applicant appeared before the Tribunal on 19 January 2015 to give evidence and present arguments, and that the visa applicant also gave oral evidence to the Tribunal. The Tribunal noted that the applicant was represented by a migration agent, who did not attend the hearing.

11. The Tribunal identified the requirements of cl.101.213(1)(c). Clause 101.213 relevantly provides as follows:

    101.213 

    (1)  If the applicant has turned 18:

    (a)  the applicant:

    (i)  is not engaged to be married; and

    (ii)  does not have a spouse or de facto partner; and

    (iii)  has never had a spouse or de facto partner; and

    (b)  the applicant is not engaged in full-time work; and

    (c)  subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

    (2)  Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child . 

12. The Tribunal identified that in the present case, the visa applicant had to satisfy cl.101.213(1)(c). The Tribunal found that the applicant was not, at the time of the making of the application, a dependent within the definition in reg.1.03 of the Migration Regulations 1994, as the applicant had turned 18, and that there is no evidence that the applicant was incapacitated for work due to total or partial loss of the child’s bodily or mental functions.

13. In the course of the hearing, the review applicant raised that the visa applicant had not commenced university and had continued her HSC because of appendicitis.  That explanation was not one that had been advanced before the delegate.  Before the delegate, the visa applicant told the delegate that she would continue to remain at school until she was granted a visa in Australia, and would not, until then, pursue any university course.

14. The Tribunal found that the visa applicant completed high school in June 2013 and received a formal qualification upon completion of that course. The Tribunal was not satisfied that the visa applicant could not have then entered university.  The Tribunal found that the visa applicant could have enrolled at a TAFE equivalent course.  The Tribunal was of the view that the visa applicant had ample study options after June 2013, when she completed high school, to engage in full-time study leading to a formal qualification.

15. The Tribunal found that the visa applicant could have enrolled in a full-time course leading to a formal qualification from the time she completed high school in 2013.  It was in those circumstances that the Tribunal found that it was not convinced that there were good reasons for the visa applicant not to pursue full-time enrolment leading to a formal qualification from the time she completed high school in June 2013 and before late 2015, when she commenced her current course.

16. The Tribunal found it was not satisfied that the visa applicant’s desire to enrol in a more prestigious institution since 2013 is a reasonable excuse for her not having engaged in study leading to a formal qualification. It was in those circumstances the Tribunal found that the study the visa applicant undertook since June 2013 did not lead to the award of any formal qualification. The Tribunal found that the period of study that the applicant had not been engaged in formal study was not a reasonable one. The Tribunal was not satisfied that the visa applicant met the requirements of cl.101.213 and cl.101.213(1)(c) in particular.

17. It was in these circumstances that the Tribunal found that the criteria for the grant of the subclass 101 visa was not met and affirmed the decision of the delegate. 

18. The grounds in the application are as follows:

    1. The DIBP visa officer refused the visa applicant because she did not undertake the chinese university selection test despite the application expressed willingness of continuing study in university in Australia

    2. It's common practise that a student repeat the last year of high school to gain entry to university. The DIBP or AAT refused to acknowledge the fact

    3. There are counterfeit documents all over the world, in australia and in china. The AAT based on the unconfirmed fact that china had issues with counterfeit document, therefore all documents provided by the plaintiff were fake.

    4. Both DIPB and AAT did not make their decision on FACT. They made their decision on speculation.

19. The review applicant submitted that the Tribunal made its decision without any grounds and relied upon speculation.  It is apparent that the Tribunal provided orthodox reasons in support of its adverse finding.  Those adverse reasons were open on the material before the Tribunal.

20. I do not accept the submission that there was speculation by the Tribunal.  In the material before the Court, the findings by the Tribunal cannot be said to lack an evident and intelligible justification.  Nothing said by the review applicant from the bar table identified any arguable jurisdictional error by the Tribunal. 

21. In relation to ground 1 of the application, an error by the delegate is not capable of establishing any jurisdictional error by the Tribunal. Even if ground 1 were read as referring to the Tribunal it was a matter for the Tribunal to determine the study that the visa applicant had undertaken and to make findings in relation to the criteria under cl.101.213. Nothing in ground 1 identifies any arguable case of jurisdictional error.

22. In relation to ground 2, the assertion of a common practice does not identify any jurisdictional error by the Tribunal but is rather an invitation for this Court to engage in impermissible merits review.  Nothing in ground 2 identifies any arguable jurisdictional error. 

23. In relation to ground 3, the adverse findings by the Tribunal in relation to the medical documents were open and ground 3 fails to identify any arguable jurisdictional error.

24. In relation to ground 4, the assertion that the Tribunal’s decision was not based on fact is without substance and, as earlier indicated, the proposition that the decision was speculative is also without substance.  Nothing in ground 4 identifies any arguable jurisdictional error. 

25. I am not satisfied that there is an adequate explanation for the delay and on that ground alone the application for extension of time should be dismissed.  Taking into account the merits of the application, I am not satisfied that there is a sufficiently arguable case to warrant an extension of time in the interest of the administration of justice. 

26. The application for an extension of time under s.477 of the Migration Act 1958 is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 13 July 2016