Zhang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 2030

FEDERAL CIRCUIT COURT OF AUSTRALIA

Zhang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2030

File number(s):

BRG 379 of 2020

Judgment of:

JUDGE JARRETT

Date of judgment:

27 August 2021

Catchwords:

MIGRATION – Migration –– Student (Temporary) (Class TU) (Subclass 500) visa – extension of time – dismissed with costs.

Legislation:

Migration Act 1958 (Cth), s 477(2)

Migration Regulations 1994 (Cth), cl 500.212

Number of paragraphs:

31

Date of last submission/s:

18 March, 2021

Date of hearing:

18 March, 2021

Place:

Brisbane

The Applicants:

In person

Solicitor for the Respondents:

Sparke Helmore

ORDERS

BRG 379 of 2020

BETWEEN:

SUQI ZHANG

First Applicant

YUEYING WANG

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE JARRETT
DATE OF ORDER:	27 AUGUST 2021

THE COURT ORDERS THAT:

1.The application for an extension of time filed on 28 May, 2020 is dismissed.

2.The second applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,737.

REASONS FOR JUDGMENT

JUDGE JARRETT:

1. By their application filed on 2 July, 2020 the applicants seek an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) within which they seek judicial review of a decision of the second respondent made on 12 March, 2020. That decision affirmed a decision of a delegate of the first respondent to refuse to grant the applicants Student (Temporary) (Class TU) (Subclass 500) visas.

2. The second applicant was the primary applicant for the visa and the first applicant applied for a visa on that basis of his membership of the second applicant’s family group. 

3. The first respondent submits that the application for an extension of time should be refused with costs because the proposed application for judicial review is not sufficiently arguable to make it necessary in the interests of the administration of justice to extend time.

   BACKGROUND

4. The second applicant is a citizen of China.  She arrived in Australia on 4 August, 2018 as a dependant on her husband’s Temporary Skill (Subclass GK) (Subclass 482) visa.

5. On 29 March, 2019 she applied for a Student (Temporary) (Class TU) (Subclass 500) visa based on her enrolment in a Diploma of Leadership and Management that was due to commence on 15 April, 2019 and conclude on 12 April, 2020.  Her husband, the first applicant, was included in the application as a dependant.

6. On 3 June, 2019 a delegate of the first respondent refused to grant the applicant her visa on the basis that she did not meet cl.500.212 of the Migration Regulations 1994 (Cth). The delegate was not satisfied that the second applicant intended genuinely to stay temporarily in Australia.

7. On 22 June, 2019 the applicants applied to the second respondent for review of the delegate’s decision.  On 27 November, 2019 the second respondent invited the second applicant to provide certain information concerning her application.  The second applicant responded to that request by submitting a completed “Request for Student Visa Information” form.

8. Because the second respondent could not make a decision favourable to the applicants on the review application on the papers, on 11 February, 2020 it invited the applicants to attend a hearing scheduled for 12 March, 2020.  On that day the applicants appeared before the second respondent to give evidence and present arguments.  They were assisted by an interpreter in the Mandarin and English languages.  At the conclusion of the hearing, the second respondent gave an oral decision and affirmed the delegate’s decision not to grant the applicants the visa.

9. On 16 July, 2020 the second respondent published written reasons for its decision.  In those reasons the second respondent recorded that the issue before it was whether the second applicant intended genuinely to stay in Australia temporarily.  It recorded that it put to the second applicant the contents of the Provider Registration International Student Management System record database concerning the second applicant’s study. 

10. The second respondent expressed concerns about the fact that the second applicant was absent for at least a two-month period during term time, for which, on her own evidence, she did not have a leave of absence.  When the second applicant was asked to explain the details of her studies, she was unable to answer accurately the number of units she needed to complete so as to finish her degree or the number of face-to-face hours per week she undertook.  While the second applicant was able to nominate the nature of one subject relating to customer service, she was unable to nominate the name of any of the courses or units she was undertaking other than to say they related to leadership and management, which was self-evident from the title of the course.  The second respondent put to the second applicant that it appeared that the second applicant had left her studies to attend to her grandmother in China and that, in circumstances where she had not been granted a greater leave of absence, she merely returned to Australia, did not resume her studies and awaited the outcome of the second respondent’s decision.  The second respondent put to the second applicant that her conduct was indicative of an intention to remain in Australia.  The second applicant was unable to offer any contrary argument to that other than to say that her husband was still working and that was the reason why they were staying in Australia.

11. The second respondent put to the second applicant that as her course was due to finish in April, perhaps it was reasonable for the second respondent to think that arrangements had been made to return to China.  But the second applicant indicated that no such plans had yet been made, suggesting that the issue of the COVID-19 pandemic, which has caused great consternation around the world, delayed her plans to return.  In that regard, the second respondent suggested that as Chinese citizens, if it was their intention to return to China, they could indeed travel home and would be subject to a quarantine period.  But they could return home.  The second applicant told the second respondent that the situation was that her husband was still working and for that reason plans had not yet been made.

12. The second respondent had regard to the matters set out in “Direction 69”, the material put before it by the applicants and the things said by the applicants in the hearing and found that:

    (a)there was advantage to the second applicant in studying in an English-speaking country.  However, in circumstances where she was undertaking her classes in Mandarin and was unable to explain the content of such classes, the second applicant’s reasons for studying attracted little weight;

    (b)the second applicant was unable to describe her studies in any detail;

    (c)nor was the second applicant able to provide any sufficient or significant detail concerning her intended course of study;

    (d)the second applicant had not returned to China on the cessation of her previous visa;

    (e)the second applicant had ties in Australia by way of her husband.  While it accepted that the second applicant had initially come to Australia to support her husband, it considered that if it had really been their intention to return to China, they would have done so on the cessation of the previous visa;

    (f)the second applicant’s conduct in remaining in Australia where her husband continued to work did not manifest her intention to return to China; and

    (g)there was no significant incentive for the second applicant to return to China.

13. Further, the second respondent recorded that the reasons stated in the application for the second applicant’s studies no longer appeared to be valid.  In circumstances where the second applicant’s evidence was that she was likely to seek employment with her father, where it was unnecessary to have the Diploma for which she was enrolled, the second respondent considered that the undertaking of the studies was not to aid the second applicant to obtain employment or improve employment prospects in China.  For similar reasons, the second respondent considered that the course was not relevant to her past employment as a preschool teacher or her proposed future employment.

14. The second respondent recorded that the second applicant had been in Australia for approximately one year and seven months, during which she had been absent for 13 weeks.  It recorded that she had previously been refused a visitor visa, but that there was no evidence to suggest that any previous visas had been cancelled or that she had failed to comply with her visa conditions.

15. The second respondent concluded that:

    (a)the second applicant’s studies were not being undertaken for genuine purposes but rather, so that the applicants could remain in Australia;

    (b)the visa application was for reasons other than genuine student purposes;

    (c)the reason for the visa application was to extend the applicants’ time in Australia;

    (d)the applicants’ use of the visa was to circumvent the intentions of the migration program; and

    (e)the visa was being used to maintain ongoing residence in Australia.

16. Consequently, the second respondent was not satisfied that the second applicant was a genuine applicant for entry and stay as a student, as required by cl.500.212 of the Regulations.

    THE APPLICATION FOR REVIEW

17. The applicants need an extension of time to pursue their applications for review.  They make application for that extension.  The application ordinarily needs to be made within 35 days of the decision being made.  The court might extend that period if it is satisfied that it is necessary in the interests of the administration of justice to do so.

18. As the first respondent submits, it is well-settled that the factors to be taken into account when considering whether an extension of time should be granted include: the extent of the delay; the explanation for the delay; any prejudice a respondent might suffer because of the delay; and, the merits of the proposed grounds.  To that list I would add the prejudice likely to be suffered by the applicants if the extension was refused.  The proposed substantive application should have such prospects of success as not to render the extension of time an exercise in futility.  If an application has no prospect of success, an extension of time, even for a short period, may be refused.

19. Here, the delay is 77 days.  I accept that is a significant delay.  In their application, the applicants state that the delay was “caused by Coronavirus”.  The second applicant has filed an affidavit in support of her application.  But it does not contain any explanation for the delay or why it is necessary in the interests of the administration of justice to extend time.  She does not expand upon the delay “caused by Coronavirus”.  She did not expand upon that in oral submissions before me.

20. Without more, I cannot be satisfied that any delay was “caused by Coronavirus”.  As the first respondent submits, it is unclear how the COVID-19 pandemic prevented the applicants from seeking judicial review within the prescribed period.

21. The second matter said to be a ground for the extension of time is “I believe this could help the administration of justice could have more time to make an informed decision”, but this really has no meaning.  The second applicant did not expand upon it in the hearing before me.

22. The first respondent properly concedes that there is no and would not be any specific prejudice to the first respondent, beyond the public interest in the finality of administrative decision making if the extension was granted.

23. The proposed ground of review that the second respondent wishes to pursue is in these terms (faithfully reproduced):

    1.There are other evidences that the tribunal did not take into consideration.

    2.We are unable to travel back to China due to the limited flights cause by the coronavirus.

    3.Our family needs me to return to China after I finish my study in Australia.

24. Even at an impressionistic level, none of these grounds are capable of demonstrating jurisdictional error by the second respondent on the facts of this matter.

25. As it recorded at [13] of its reasons, the second respondent specifically had regard to “all the information supplied to the Department of Home Affairs with the visa application and all the information supplied to the second respondent by the second applicant”.  It had regard to the matters put by the applicants at the hearing before the second respondent.  At the hearing before me, the second applicant did not identify anything in particular that the second respondent had not considered.  The matters considered by the second respondent were plainly relevant to the issue at hand.

26. The second ground is not a ground which, even if made out on the evidence, demonstrates jurisdictional error by the second respondent.  In any event, the second respondent considered the second applicant’s claim that she had not yet made plans to return to China by reason of the COVID-19 pandemic.  The second applicant accepted that, as Chinese citizens, she and her husband could return to China and quarantine for the relevant period.

27. The third ground proposed by the applicants is also incapable in my view of establishing error on the part of the second respondent. 

28. The second respondent’s findings that I have set out above were clearly open to it.  The conclusions that it reached based upon those findings were reasonable (in the legal sense) and the way in which it reached those conclusions is clearly expressed in the reasons delivered by the second respondent.

    CONCLUSION

29. At the hearing before me, the second applicant was unable to articulate any error in the second respondent’s decision.  Her submissions to me confirmed that she was simply interested in remaining in Australia. 

30. I am not satisfied that it is in the interests of the administration of justice for there to be an extension of time within which the applicants might apply to review the second respondent’s decision in this case.  The proposed grounds of review do not disclose sufficient merit, even at an impressionistic level, to warrant an extension of time.  Moreover, the delay in commencing this application for an extension of time and the lack of any explanation for that delay militates against an exercise of the relevant discretion in favour of the applicants.

31. Accordingly, the application for an extension of time is dismissed with costs fixed in the amount sought by the first respondent.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 27 August, 2021.

Associate:

Dated:       27 August 2021