Zhang v Minister for Immigration and Citizenship

[2009] FCA 1355

FEDERAL COURT OF AUSTRALIA

Zhang v Minister for Immigration and Citizenship [2009] FCA 1355

Education Services for Overseas Students Act 2000 (Cth) s 20
Migration Act 1958 (Cth) s 137J
Migration Regulations 1994 (Cth) Sch 2 cl 572.22, Sch 4 cll 4013(1), 4013(2A), Sch 8 cl 8202

Minister for Immigration and Citizenship v Brar (2009) 175 FCR 432

BO ZHANG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

NSD 1502 of 2008

BUCHANAN J
20 NOVEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1502 of 2008

BETWEEN:

BO ZHANG
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	20 NOVEMBER 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1502 of 2008

BETWEEN:

BO ZHANG
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	20 NOVEMBER 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. On 30 January 2007 the applicant applied for a Student (Temporary) (Class TU) visa.  On 14 March 2008 the Migration Review Tribunal (“the MRT”) constituted under the Migration Act 1958 (Cth) (“the Act”) handed down a decision which affirmed a decision on 10 May 2007 by a delegate of the predecessor to the Minister for Immigration and Citizenship (“the Minister”) to refuse the application.

2. On 3 April 2008 the applicant made an application for judicial review of the decision of the MRT to the Federal Magistrates Court of Australia (“the FMCA”).  That application was initially dismissed when the applicant failed to appear at the listed hearing of his application on 30 June 2008.  However the proceedings were subsequently reinstated and on 3 September 2008 were transferred by the FMCA to this Court.  That occurred because it was thought that the proceedings might concern a matter of some general importance which was also before a Full Court in another matter.  The other matter has since been decided (Minister for Immigration and Citizenship v Brar (2009) 175 FCR 432) but, as it happens, the issues which were there decided do not require consideration in the present proceedings.

3. The background against which the decision of the MRT was made requires further elucidation but it is as well to make the point immediately that judicial review of that decision is only available on the ground that the decision or processes of the MRT were affected by jurisdictional error.  It is not open to the Court to deal with the merits of the application for a student visa.  If jurisdictional error was found it would be necessary for the case to be considered again by the MRT.

4. The decision of the MRT recorded that the applicant is a citizen of the People’s Republic of China who first entered Australia on 9 November 2003 as the holder of a Subclass 573 (Student) visa valid to 1 July 2004.  On that day, the MRT said, the visa was extended until 14 March 2007.  However, a copy of the visa is in the papers before the Court and it appears it was valid to 15 March 2007.  The applicant completed English studies and then in June 2004 commenced and later completed a Diploma of Business and Commerce course at the University of Technology, Sydney (“UTS”).  He was awarded the Diploma on 17 March 2006.  He then enrolled in a Bachelor of Business course at UTS but withdrew from the course on 3 January 2007 after failing all his subjects.  His initial student visa was cancelled on 14 March 2007.  The circumstances will be further explained shortly.

5. Before the cancellation was effected, on 30 January 2007, the application for a further visa, with which the decision of the MRT was concerned, was lodged.  That application for a further student visa was submitted on the applicant’s behalf by a migration agent.  The application was supported by reference to the fact that the applicant had enrolled in a Certificate III in hairdressing at LKJ College and wished to go on to commence a Diploma of Business Management at Southern Cross International College from February 2008.  It appears from the material which was before the MRT that the applicant successfully completed the Certificate III course in hairdressing and was awarded that Certificate on 14 December 2007.  However, as will be seen, the applicant’s desire to change the focus of his studies and his apparent success thereafter, does not affect the legal consequences which potentially, and actually, arose from his subject failures at UTS in the Bachelor of Business course.

6. Section 20 of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”) provides for a notice to be sent by an education provider to a visa holder if visa conditions (including, in this case, attendance or academic requirements) have not been met. If, within 28 days, the visa holder does not either comply with the notice or take steps to attend at an office of Immigration to explain the position, s 137J of the Act provides that the visa is automatically cancelled, even if the notice was not received (neither the reasonableness or validity of this provision are in issue in the present case).

7. It appears that UTS sent the applicant a s 20 notice on 13 February 2007. The decision of the MRT recorded:

   He said he received a letter from UTS advising him that he had been reported but this arrived long after he had transferred.  He had not changed any details of his address.  He said that by the time he received the letter it was past the twenty-eight day period in which he was meant to attend a meeting with the Department.  He confirmed that his Subclass 573 visa was cancelled on 14 March 2007.

8. The applicant repeated this explanation, in substance, at the hearing before me.  However, even if accepted at face value it cannot assist him for a number of reasons.  First, in a letter to his migration agent dated 1 March 2007 she was told:

   Please also be advised that the applicant is subject to a s20 Notice issued by their previous provider on 13 February 2007. The applicant will need to report to NSW Student Compliance within the given timeframe stated on that letter and have the matter resolved before any further decision can be made on the extension of the visa.

   and:

   Please contact the NSW Student Centre by email if you have any problems in meeting this deadline.

9. It was not suggested this letter was not received. The applicant was required to report by 14 March 2007. He did not do so. Secondly, as already pointed out, if the conditions which s 137J requires to be met are not met, s 137J has the effect of automatic cancellation despite the fact that the s 20 notice was not received. The result was that the earlier visa was cancelled, by operation of the Act, on 14 March 2007, before its expiry on 15 March 2007.

10. Notwithstanding that the application for the second visa was made before the first visa was automatically cancelled, both the delegate and the MRT were required to assess that application by reference to a number of specified criteria in existence at the time of their respective decisions.  That requirement arose from cl 572.22 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The applicant was required to satisfy the criteria in cll 572.222 to 572.234 inclusive. Amongst those criteria to be satisfied were certain “public interest criteria” stated in Sch 4 to the Regulations. Clause 4013(2A) of Sch 4 to the Regulations provides:

    (2A) A person is affected by a risk factor if a visa previously held by the person was cancelled under section 137J of the Act.

11. That “risk factor” activated the provisions of cl 4013(1).  If the application for the visa under consideration was made less than three years after the cancellation of the cancelled visa (i.e. before 14 March 2010 in the present case) the applicant was required to point to:

    (i)        compelling circumstances that affect the interests of Australia; or

    (ii)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen

    to justify the granting of a visa.  As I have said, the requirements were ones to be satisfied at the time of decision, not at the time the application was lodged.

12. The decision of the delegate referred to the fact that the original visa was cancelled under s 137J of the Act. The applicant therefore knew, when he made his application to the MRT for review of the delegate’s decision, that cancellation of his earlier visa represented a fundamental obstacle to the success of the application lodged on 30 January 2007.

13. Before the MRT, the applicant, who was represented by his registered migration agent, did not challenge the cancellation of his earlier visa but relied upon various medical certificates to the effect that he was physically incapable of adequately preparing for his exams and also that he had been unable to cope academically with the requirements of the course due to his limited comprehension of the lectures. 

14. The MRT took the view that the matters relied upon by the applicant did not satisfy the requirements which followed from the cancellation of the earlier visa.  The MRT said, in that connection:

    The only evidence the applicant has provided in this regard is that he intends to establish a beauty salon in Australia once he has completed his studies, and would be unable to do so if not granted a visa.

15. Although the MRT accepted the applicant’s medical evidence it concluded that it was obliged to affirm the decision of the delegate as the applicant had not established any of the matters which might permit a decision in his favour.  No jurisdictional issue arises from the assessment by the MRT that the matters advanced by and on behalf of the applicant did not satisfy the requirements for the grant of a further visa within three years of the cancellation of the earlier one.

16. In his application for judicial review, which was originally commenced in the FMCA, the grounds relied upon to displace the decision of the MRT were stated simply in the following way:

    1.I disagree the [sic] decision made by the member of MRT;

    2.The situation happened to me was beyong [sic] my control.

    Those grounds do not raise any jurisdictional issue for consideration.

17. At the hearing of the present application the applicant complained that the issue of the s 20 notice was contrary to an understanding he had that UTS had no difficulty with him commencing a different course of study. However, that is not to the point. The applicant’s initial visa was subject to a number of conditions endorsed upon it. One of them (condition 8202 – see Sch 8 of the Regulations) required him to achieve an academic result for each term or semester certified by his education provider (UTS) to be satisfactory. UTS, for its part, was required by s 20 of the ESOS Act to issue a notice to the applicant under that provision if a prescribed visa condition was breached, as it was in the applicant’s case.

18. The applicant failed to take the necessary steps to address the s 20 notice. The resulting consequences followed inevitably from that failure. There was no jurisdictional error committed by the MRT. There is no foundation upon which this Court might grant any relief. The application for judicial review must be dismissed.

19. The Minister has asked for costs.  There is no reason in principle why costs should not follow the result.  However, any assessment of costs should take into account that the proceedings were delayed as a result of inquiries by the Court itself.  It was initially proposed that the applicant be assisted by pro bono counsel.  In part that arose from matters raised by the Court and in part because the case was said to raise questions of more general importance.  In the end that has not proven to be so but the additional costs, if any, which may have arisen from any such circumstance, or a view that the case might have been one of general importance, may not be fairly laid at the door of the applicant. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        20 November 2009

The Applicant appeared in person.
Counsel for the First Respondent:	S Lloyd SC with A Mitchelmore
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	13 November 2009
Date of Judgment:	20 November 2009