Zhang v Minister for Immigration and Citizenship

[2008] FCA 805

FEDERAL COURT OF AUSTRALIA

Zhang v Minister for Immigration and Citizenship [2008] FCA 805

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

NSD 413 OF 2008

STONE J
28 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 413 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: FENGQIN ZHANG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	28 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs fixed in the amount of $1800.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 413 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: FENGQIN ZHANG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE:	28 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate dismissing an application for judicial review of a decision of the Migration Review Tribunal; [2008] FMCA 351. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to cancel the appellant’s Student Guardian Subclass 580 visa.

2. The appellant is a citizen of the People’s Republic of China who came to Australia on a student guardian visa to provide care and make general welfare arrangements for her son who was of school age and was attending an English course. The conditions of her visa included:

   ·condition 8101, which provides that the visa holder must not engage in work in Australia; and

   ·condition 8537, which provides that the holder of the 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.

3. On 30 April 2007, the appellant received from the Department of Immigration and Multicultural Affairs a notice of intention to consider cancellation of her visa.  Following a brief interview at the Department’s offices on the same day the decision to cancel her visa was made.  On 8 May 2007 the appellant applied to the Migration Review Tribunal challenging the decision to cancel her visa. 

4. The Tribunal accepted the evidence of Department officers that the appellant had been found working on 30 April 2007 and accordingly found the appellant had failed to comply with condition 8101 of her visa.  It did not accept the appellant’s evidence to the contrary.  In relation to condition 8537, the Tribunal did not make any finding.  This may have been because the Tribunal tacitly accepted the evidence provided by the appellant after the hearing.  This evidence consisted of statutory declarations provided by the appellant’s son, by his friend and by a neighbour to the effect that the appellant was living with her son.  

5. The Tribunal also noted that, as the appellant’s son is now over 18 years of age, even if her visa had not been cancelled, it would have expired on 31 July 2007.  Ultimately, the Tribunal was satisfied the reasons for not cancelling her visa did not outweigh the reasons for cancelling her visa. 

6. Before the Federal Magistrate the appellant raised three grounds of review which are identical to those raised in the notice of appeal filed in this Court. The first ground is that the Tribunal failed to notify the appellant in writing of the reasons for affirming the decision under review and, in breach of s 359A of the Migration Act 1958 (Cth), had not afforded her the opportunity to comment upon those reasons. His Honour found that there was no breach of s 359A of the Act, as the Tribunal had, by letter dated 25 May 2007, invited the appellant to comment on information set out in the letter. The letter contained information it considered relevant to the decision whether to affirm the cancellation of the appellant’s visa, namely the alleged breaches of conditions 8101 and 8537. The appellant responded to this letter on 31 May 2007 by submitting further information to the Tribunal. In addition, at the hearing on 7 August 2007 the Tribunal noted several matters relevant to its determination, gave the appellant an opportunity to comment on them, and also allowed her a further week to submit additional written evidence. The appellant provided the statutory declarations referred to in [4] above.

7. Given that the Tribunal is not required to notify the appellant of the existence of doubts as to her evidence, I can detect no error in the Federal Magistrate’s finding on this point.  At the hearing of the appeal before me the only submission made by the appellant was to the effect that the Tribunal’s findings were erroneous and that this was unfair.  I accept the first respondent’s submission that the Tribunal provided the appellant with sufficient, indeed in my view, ample opportunity to address it in relation to matters that were determinative of its ultimate decision. This ground of appeal must be rejected. 

8. The second ground of appeal claims that the Tribunal’s decision was not based on a rational and logical foundation.  This claim has not been particularised.  I respectfully agree with the Federal Magistrate that no irrationality or illogicality is apparent in the Tribunal’s decision. As his Honour stated at [23]:

   …
   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…

9. The final ground of appeal alleges bias on the part of the Tribunal.  An allegation of bias is very serious.  It must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531. The appellant has not done so and the Tribunal’s reasons do not disclose any indication of apprehended or actual bias. This ground must also be rejected.

10. In my opinion, the Federal Magistrate was correct in concluding that the Tribunal did not make a jurisdictional error.  As such, the appeal should be dismissed with costs fixed in the amount of $1,800.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:       28 May 2008

The Appellant appeared in person.
Counsel for the Respondents:	Mr Y. Shariff
Solicitor for the Respondents:	Clayton Utz

Date of Hearing:	28 May 2008
Date of Judgment:	28 May 2008