Zhang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 195
•10 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Zhang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 195
File number(s): SYG 1314 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 10 February 2021 Catchwords: MIGRATION – PRACTICE AND PROCEDURE – application to set aside orders made in the absence of the applicant – whether applicant has given adequate explanation for non-appearance – whether application would have merits if the orders were set aside – application dismissed. Legislation: Federal Circuit Court Rules 2001 (Cth) rr 13.03C(1)(c), 16.05(2)(a)
Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth), regs 1.03, 1.40(1), 1.41(1), 1.41(4), Schedule 2, cll 572.227, 572.227A, 573.111, 573.223(1A), 573.227, 573.227A
Cases cited: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Shrestha v Minister for Immigration & Anor [2016] FCCA 828
Number of paragraphs: 33 Date of hearing: 2 February 2021 Place: Sydney Applicant: Applicant in person, by telephone, assisted by an interpreter Solicitor for the First Respondent: Ms A Zinn of Mills Oakley Lawyers, by telephone ORDERS
SYG 1314 of 2017 BETWEEN: ZONGYING ZHANG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
10 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The application in a case filed by the applicant on 14 December 2020 is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $700.
REASONS FOR JUDGMENT
INTRODUCTION
On 18 November 2020 I made an order pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) dismissing an application filed on 2 May 2017 for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made on 6 April 2017 by the second respondent (Tribunal). By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) Subclass 573 visa (Higher Education visa).[1]
[1] As will become apparent, the applicant in fact applied for a Student (Temporary) (Class TU) Subclass 572 visa, and the delegate refused to grant the applicant such visa. By the time the Tribunal came to consider the applicant’s application for review, the Tribunal treated the applicant as applying for a Higher Education visa.
BACKGROUND
The applicant applied for a Student (Temporary) (Class TU) Subclass 572 visa (Vocational Education visa) on 16 March 2016. At the time he applied for that visa the applicant was the holder of a visa that was dependent on his father’s Temporary Business Entry (Class UC) visa (457 visa). When the 457 visa was due to expire on 8 April 2016 the applicant’s parents, but not the applicant, applied for protection visas.
To have been entitled to the grant of a Vocational Education visa the applicant had to meet the requirements of subclass 572 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[2] Relevant to the application before me is cl 572.227 of Schedule 2 to the Regulations which relevantly provides:
[2] As these stood at the time the applicant applied for the Vocational Education visa. For ease of expression, however, I will refer to the Regulations in the present tense.
Criteria to be satisfied at time of decision
. . . .
If:
(a)the application was made in Australia; and
(b)subject to clause 572.227A, the applicant is subject to the highest assessment level for the relevant course of study; and
(c)at the time of application, the applicant met the requirements of clause 572.211:
(i)as the holder of a visa of one of the following classes or subclasses:
(N)Temporary Business Entry (Class UC)
. . . .
the applicant establishes exceptional reasons for the grant of a Subclass 572 visa.
The expression “assessment level” in cl 572.227(b), when used in relation to any subclass of student visa, is defined in reg 1.03 of the Regulations to mean “the level of assessment specified for a kind of eligible passport for the student visa under regulation 1.41”. Subregulation 1.41(1) provides:
The Minister must specify, by instrument in writing, an assessment level for a kind of eligible passport, in relation to each subclass of student visa, to which an applicant for a student visa who seeks to satisfy the primary criteria will be subject.
Subregulation 1.41(4) provides that the assessment level the Minister must specify must be a number from 1 to 3. The Minister made an instrument under reg 1.41(1) which specified an “[a]ssessment level 3” in relation to Vocational Education visas (and Higher Education visas) in relation to an “eligible passport” issued by the People’s Republic of China (among other countries).[3] The expression “eligible passport” is defined in reg 1.40(1) of the Regulations to mean a passport that is a “valid passport of a kind specified by the Minister in an instrument in writing for this subregulation”, and if “the conditions (if any) specified by the Minister in an instrument in writing for passports of that kind are satisfied”. The Minister has made an instrument under reg 1.40(1) which includes the People’s Republic of China.[4]
[3] IMMI 14/104, Student Visa Assessment Levels
[4] IMMI 12/089, Specification of Passports
Also relevant is cl 572.227A of Schedule 2 to the Regulations which provides that, for the purposes of cl 572.227(b), the highest assessment level does not include assessment level 1. The effect of this clause is that a person who is assessed at level 1 does not need to show there were exceptional reasons for the grant of a Vocational Education visa.
In his form of application for the Vocational Education visa the applicant listed three intended courses with IAA Education Pty Ltd, these being a Certificate IV in New Small Business, a Diploma of Leadership and Management, and an Advanced Diploma of Leadership and Management.[5] The applicant supported his application with documents evidencing his enrolment in these courses.[6] These were for the periods 23 February 2016 to 15 November 2016; 13 December 2016 to 31 October 2017; and 28 November 2017 to 28 August 2018. The applicant also supported his application with a “Study Plan”,[7] and a statement.[8]
[5] CB5
[6] CB51-53
[7] CB28-30
[8] CB71-73
On 1 June 2016 the delegate refused to grant the applicant a Vocational Education visa because the delegate was not satisfied there were “exceptional reasons” to grant the Vocational Education visa to the applicant.
On 22 March 2017 the applicant’s migration agent provided to the Tribunal a submission and supporting material. The applicant’s agent submitted the applicant’s circumstances could be considered to be exceptional; the applicant was the dependent of a departing temporary resident; and the applicant wished to undertake further study, and he had been studying for the past 12 months. The agent also provided three decisions by the Migration Review Tribunal (MRT decisions).
The applicant appeared before the Tribunal by telephone on 28 March 2017. On that day the applicant’s agent sent to the Tribunal an email attaching a letter of offer dated 28 March 2017 from the South Australian Institute of Business and Technology (SAIBT) to study a number of courses including a Diploma of Business.[9] It appears that the SAIBT is part of or associated with the University of South Australia. The letter of offer related to a Diploma of Business with the SAIBT that was scheduled to run from 26 June 2017 to 30 June 2019, and a Bachelor of Business (Management) with the University of South Australia that was scheduled to run from 29 July 2019 to 31 July 2021. In his email the applicant’s agent said the applicant expected to study the courses referred to in the letter of offer. The agent also submitted that “[a]s University of South Australia was a SVP provider and is at assessment Level 1, therefore, I contend that the applicant meets r.573.227A”.
[9] CB165
Clause 573.227A is identical to cl 572.227A except it forms part of the subclass that relates to the granting of a Higher Education visa. Clause 573.227 is relevantly the same as cl 572.227:
Criteria to be satisfied at time of decision
. . . .
If:
(a)the application was made in Australia; and
(b)subject to clause 573.227A, the applicant is subject to the highest assessment level for the relevant course of study; and
(c)at the time of application, the applicant met the requirements of clause 573.211:
(i)as the holder of a visa of one of the following classes or subclasses:
(N)Temporary Business Entry (Class UC)
. . . .
the applicant establishes exceptional reasons for the grant of a Subclass 573 visa.
Thus, by the time the Tribunal came to determine the application for review the applicant’s case was not that he satisfied the criteria for the grant of a Vocational Education visa; the applicant claimed he satisfied the criteria for the grant of a Higher Education visa. The question before the Tribunal, therefore, was whether the applicant satisfied the criteria for the grant of a Higher Education visa.
TRIBUNAL’S REASONS
The Tribunal first considered whether the applicant was required to satisfy cl 573.227; that is, whether the applicant was required to establish there were exceptional reasons for the grant of a Higher Education visa. The Tribunal considered that the determination of this question turned on whether the applicant satisfied what the Tribunal referred to as “the SVP requirements”;[10] and that is because the Tribunal was of the view that a person who “does not satisfy the SVP requirements” cannot be “assessed as Assessment Level 1”;[11] and cl 572.227A (by which the Tribunal presumably intended to refer or also to refer to cl 573.227A) “effectively means that Assessment Level 1 applicants do not need to establish exceptional reasons for the grant of a student visa”.[12]
[10] CB188, [29]
[11] CB188, [32]
[12] CB187, [28]
“SVP” stands for “Streamlined Visa Processing”. That expression is not used or defined in the Regulations or the Act; it is a short hand expression to describe the policy and effect of cl 573.223(1A) of Schedule 2 to the Regulations. That is apparent from the following passage from the judgment of Judge Driver in Shrestha v Minister for Immigration & Anor as follows:[13]
Clauses 573.223(1A) and 573.223(2) establish “alternative pathways” for obtaining a subclass 573 student visa; one pathway for those who are “eligible higher degree students” (under clauses 573.223(1A) and 573.111), and another pathway for those who are not an “eligible higher degree student” (under clause 573.223(2)). The pathway under clause 573.223(1A) is described as the Streamlined Visa Processing pathway (the SVP), and the pathway under clause 573.223(2) is the conventional pathway. The difference between the two is that if a person is an “eligible higher degree student” within clauses 573.111 and 573.223(1A), they are not required to produce the onerous evidence required under Schedule 5A to the Regulations as to their skills in the English language, their financial capacity, and their educational pre-requisites. An incident of the requirement to comply with Schedule 5A is considerably delayed processing times.
[13] Shrestha v Minister for Immigration & Anor [2016] FCCA 828, at [19]
Thus, the Tribunal proceeded on the view that to satisfy the “SVP requirements” the applicant had to show that cl 573.223(1A) applied to him. That is, the applicant had to show that “at the time of application” the applicant was “an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student”. The expression “eligible higher degree student” is defined in cl 573.111 to be “an applicant for a Subclass 573 visa in relation to whom” a number of things apply, including the applicant’s being “enrolled in a principal course of study for the award of . . . an advanced diploma in the higher education sector”, or a “bachelor’s degree”, or a “masters degree by coursework”; and that “the principal course of study is provided by an eligible education provider”. The Tribunal found that the letter of offer from the SAIBT “does not provide evidence that” the applicant “satisfies the requirements as an Eligible Higher degree student” and, for that reason, he “does not satisfy the SVP requirements and cannot be assessed as Assessment Level 1”.[14] That meant the applicant had to establish there are exceptional reasons for the grant of a Higher Education visa.
[14] CB188, [31], [32]
The Tribunal then addressed the applicant’s agent’s submissions. First, the Tribunal referred to the applicant’s agent’s submission there were exceptional reasons for the grant of a Higher Education visa because the applicant was a dependent of a departing temporary resident. The Tribunal did not accept that submission because the agent’s submission stated that the applicant’s parents were in Australia, and they had lodged protection visa applications for which they were awaiting the outcome. The Tribunal did not believe that in those circumstances the applicant’s parents could be classified as “departing temporary residents”.[15] Next, the Tribunal referred to, but did not accept, the agent’s submission that the applicant was a “former student visa holder or temporary visa holder”.[16] That appears to be a reference to the submission the Tribunal referred to earlier in its reasons that the applicant held a temporary residence visa and wished to change to a student visa.[17] Finally, the Tribunal referred to the MRT decisions, but found those decisions were different from the issues in the case before it. The Tribunal, therefore, did not consider the MRT decisions relevant.[18]
[15] CB188, [36]
[16] CB188, [37]
[17] CB187, [17]
[18] CB188, [38]
PRINCIPLES FOR SETTING ASIDE ORDERS MADE IN ABSENCE OF PARTY
The principles that govern the Court’s exercise of the power under r 16.05(2)(a) of the FCC Rules were considered by Ryan J in MZYEZ v Minister for Immigration and Citizenship where his Honour said:[19]
In circumstances where . . . a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a) whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c) whether the applicant has a reasonably arguable prospect of success on the substantive application.
[19] [2010] FCA 530, at [7] (cases cited omitted)
REASONS FOR NON-APPEARANCE AT HEARING AND DELAY
The applicant, who is not legally represented, but was assisted by an interpreter, relied on an affidavit in which he deposes he did not receive notice of the hearing of 18 November 2020. The Court notified the applicant of the hearing by sending an email on 8 September 2020 to the email address the applicant specified in the application he filed. The applicant said that the email address was set up by his agent, and the applicant could only get access to the email address by use of a code that was not available to him.
The applicant, however, gave inconsistent and unclear answers to my question about how he became aware of the orders I made on 18 November 2020. In one of his answers the applicant said he first became aware of those orders on 19 December 2020, being some ten days after the applicant made an affidavit to which he attached the orders I made on 18 November 2020. The applicant also stated he obtained a copy of my orders from the Court. That might be a reference to the email attaching the orders of 18 November 2020 the Court Registry sent on 18 November 2020 to the email address stated in the applicant’s application. The applicant further said he had informed the Court that he had changed his email details; but, there is nothing on the Court file that suggests the applicant did so before 14 December 2020 when he filed his application in a case to set aside the orders of 18 November 2020.
I am not satisfied the applicant has given an adequate explanation for his not appearing at the hearing on 18 November 2020. It is likely the applicant failed to appear at the hearing of 18 November 2020 through some misadventure the applicant was either unable or unwilling to articulate. I do not, however, propose to place any weight on my finding that the applicant has not provided a reasonable explanation for not appearing at the hearing on 18 November 2020. The fate of his application to set aside the orders I made on 18 November 2020 turns on whether there are any arguable grounds for setting aside the Tribunal’s decision.
APPARENT MERITS
The application contains three grounds of application. At the hearing before me the applicant made a number of submissions in support of those grounds, and the applicant addressed two paragraphs of the Minister’s written submissions. I will consider in turn the grounds contained in the application, and the submissions the applicant made at the hearing.
Grounds of application
The application contains the following three grounds (errors in original):
1.Tribunal refused my 572 student visa because my parents applied the Protection visa, which did not make any sense to me. I do not understand why I cannot pursue my dream in Australia, and just because my parents applied the Protection visa? I do need this opportunity to get high-level education in Australia.
2.I am really struggle with study, but I will not let myself to give up, because I need to prove to myself that I can do this. But the Tribunal was arbitrary to verdict that I am not an Eligible Higher Degree student, which is unbearable to jump at this conclusion.
3.I do not think the Tribunal review my case carefully. All the evidence that they provided was not fully convinced me. The detailed information that they stated is not the core reason, such as the NO. 30. It is all the facts that happened. There is no comments on these, which reflects the Tribunal was not trying to make any logical supports to my case.
Ground 1
Ground 1 misunderstands the ground on which the Tribunal decided the applicant did not satisfy the criteria for the grant of the Higher Education visa. The Tribunal so decided because, first, it was of the view that the applicant had to establish there were exceptional reasons for the Higher Education visa to be granted and, second, it was not satisfied the applicant established there were exceptional reasons. It was in the context of considering whether there were exceptional reasons for the granting of the Higher Education visa that the Tribunal referred to the applicant’s parents having applied for protection visas. The Tribunal did so because the applicant’s agent submitted the applicant was a dependent of a departing temporary resident. The Tribunal was of the view that the applicant’s parents’ having applied for protection visas and awaiting the outcome of their applications was a circumstance that was inconsistent with the applicant’s agent’s submission that the applicant’s parents were departing temporary residents. It is beyond argument it was open to the Tribunal to make that finding.
Ground 1, therefore, discloses no reasonably arguable case of jurisdictional error.
Ground 2
Ground 2 is directed to the Tribunal’s conclusion that the applicant is not an “eligible higher degree student”. The ground in effect claims the Tribunal’s conclusion is arbitrary and was arrived at without any reasonable foundation. That is not reasonably arguable. The definition of “eligible higher degree student” in cl 573.111 of Schedule 2 to the Regulations requires that an applicant be “enrolled” in a course provided by an “eligible education provider”. Although the applicant produced the letter of offer from the SAIBT, it is not arguable that the offer could constitute evidence that the applicant had been enrolled.
Ground 2 also does not disclose a reasonably arguable case of jurisdictional error.
Ground 3
Ground 3 may be taken to make a number of claims: the Tribunal did not review the applicant’s claims carefully; there was no apparent justification for the Tribunal’s decision; the Tribunal was incorrect to only rely on the SAIBT letter of offer as evidence that the applicant was an “eligible higher degree student” because there was other evidence which the Tribunal overlooked. None of these claims is arguable. The Tribunal’s reasons manifest an active engagement by the Tribunal with the applicant’s claims; and the applicant has identified no other evidence the Tribunal ought reasonably to have regarded as being relevant to whether the applicant was an “eligible higher degree student”; and, as I have already found, it is not arguable that the letter of offer from the SAIBT could constitute evidence that the applicant had been enrolled.
Ground 3, therefore, also discloses no reasonably arguable case of jurisdictional error.
Submissions at hearing
At the hearing the applicant made two submissions. The first related to paragraph 21 of the Minister’s written submissions which refers to that part of the Tribunal’s reasons that the applicant’s parents could not be classified as “departing temporary residents”. The applicant submitted the Tribunal did not believe the applicant had been granted a 457 visa. That submission misunderstands the Tribunal’s reasons. The Tribunal accepted the applicant held a 457 visa. The Tribunal said that at the time he applied for the Vocational Education visa the applicant “was in Australia as the holder of a dependent 457 visa”.[20] This part of the applicant’s case, therefore, discloses no reasonably arguable case of jurisdictional error.
[20] CB185, [3]
The second of the applicant’s submissions related to paragraph 22 of the Minister’s written submissions. In that paragraph the Minister referred to that part of the Tribunal’s reasons in which the Tribunal found the MRT decisions were not relevant. The applicant asked rhetorically why his case is different from those in the MRT decisions. The applicant, however, has not identified how the MRT decisions are relevant or could reasonably have been considered by the Tribunal to be relevant. The applicant’s agent in his email sent to the Tribunal on 22 March 2017 quoted a passage from one of the MRT decisions,[21] but the passage related to the meaning of “exceptional reasons”. There is nothing in any of the MRT decisions that could raise an arguable case that it was not open to the Tribunal to find the MRT decisions were not relevant. This part of the applicant’s case, therefore, also discloses no reasonably arguable case of jurisdictional error.
[21] CB131, at 132-133
Finally, I should refer to a statement the applicant made in reply to the Minister’s submissions. The applicant said his agent did some “illegal things” and he had prepared “fake documents”. When I asked for details, the applicant referred to the email address the applicant said his agent had set up. The applicant also referred to his agent not informing him of the hearing on 18 November 2020. Even if I were to assume the agent set up the email address the applicant specified in his application filed with the Court on 2 May 2017, and the agent acted improperly in the manner in which he managed that email, and that the agent failed to notify the applicant of the hearing on 18 November 2020, it is not arguable that these matters are or may be relevant to the Tribunal’s decision.
CONCLUSION AND DISPOSITION
Given I am satisfied the applicant has disclosed no reasonably arguable case of jurisdictional error, I am not satisfied it is in the interests of justice that I set aside the orders I made on 18 November 2020. I propose, therefore, to dismiss the applicant’s application in a case.
The Minister applies for costs, and for an order that I set those costs in the amount of $700. The applicant submitted he is unemployed and would be unable to pay the Minister’s costs. That is not a reason for costs not following the event. I propose, therefore, also to order that the applicant pay the Minister’s costs set in the amount of $700.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 10 February 2021
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Costs
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Statutory Construction
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