Zheng v Minister for Immigration
[2005] FMCA 776
•26 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZHENG v MINISTER FOR IMMIGRATION | [2005] FMCA 776 |
| MIGRATION – Visa – Temporary Business Entry (Class UC) visa – Migration Review Tribunal – applicant a citizen of the People's Republic of China – breach of condition 8112 of visa – visa cancelled on day of arrest by Police – where condition of visa that the holder must not engage in work in Australia that might otherwise be carried out by an Australian citizen or an Australian permanent resident – whether applicant engaged in work – no reviewable error. PRACTICE & PROCEDURE – Costs – indemnity costs – circumstances justifying order. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth) |
| Colgate-Palmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225 |
| Applicant: | YU MING ZHENG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 943 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 May 2005 |
| Date of Last Submission: | 26 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 26 May 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant is to pay the Respondent’s costs on an indemnity basis fixed in the sum of $3,580.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 943 of 2005
| YU MING ZHENG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Migration Review Tribunal. The Tribunal handed down its decision on 18 March 2005. The Tribunal affirmed the decision of a delegate of the Minister to cancel the applicant's visa.
The applicant is a citizen of The People's Republic of China.
He arrived in Australia on 26 January this year. He arrived with a Temporary Business Entry (Class UC) subclass 456 visa.
The visa has two conditions attached to it: being conditions 8503;
and 8112. The relevant condition in this case is condition 8112.
That condition says:
The holder must not engage in work in Australia that might otherwise be carried out by an Australian citizen or an Australian permanent resident.
The delegate of the Minister says that the applicant breached that condition because he was engaged in work.
The circumstances are that the applicant came under notice on 11 February 2005. At the time the applicant was found by the New South Wales Police in a van which contained plastering equipment and tools. He was in the company of three other workers from The People's Republic of China. Those people all worked as construction workers. The van contained plastering equipment and plastering tools. The applicant was wearing work boots with traces of plaster on them.
When the police arrived the applicant attempted to abscond from the police. He was unsuccessful. The police arrested him. He was placed in immigration detention and has been an inmate of the immigration detention centre at Villawood since 11 February 2005.
The delegate of the Minister cancelled the applicant's visa on 11 February, the day he was arrested. The delegate cancelled his visa on the ground that he had breached condition 8112 by engaging in work.
The applicant lodged an application for review with the Migration Review Tribunal on 14 February 2005.
The Tribunal held a hearing on 11 March. The applicant gave oral evidence at that hearing.
The Tribunal handed down its decision a week later on 18 March.
The Tribunal affirmed the decision to cancel the applicant's visa.
On 15 April, the applicant applied to this Court for review of the Migration Review Tribunal's decision. That application came before the Court on 3 May 2005 and was listed for hearing today, 26 May.
The solicitors for the respondent were able to prepare a Court book and filed that document on 10 May. They also filed an outline of submissions on 23 May and forwarded a copy to the applicant in detention on the following day.
The applicant seeks an order that the decision of the Tribunal should be set aside. The grounds relied upon in that application are these:
1.The Tribunal relied crucially upon advice received from the case officer from the Department of Immigration;
2.The decision was made to cancel the applicant's visa;
3.The Tribunal ignored relevant material or reached a decision that could not reasonably have been reached or reached a decision without reasonable or rational foundation giving rise to an incorrect finding that the applicant is not entitled to the visa and giving rise to jurisdictional error;
4.There is no basis for the finding on the face of the decision as the Tribunal was in error because there was no evidence to support that finding.
I have heard the applicant's oral submissions. I have read the respondent's written submissions and I have heard oral submissions by Ms Burnett on behalf of the respondent.
The Tribunal made the following findings:
(a)it accepted the department's account of the applicant's location by the police and the statements that the applicant made to the department;
(b)by reason of his inability to provide a telephone number, a business card, or a letter from his business, the Tribunal doubted the applicant's claims that he had been conducting business in Australia;
(c)the evidence was consistent with the applicant working as a construction worker;
(d)the Tribunal did not accept the applicant's explanation as to why he was wearing work boots with plaster on them;
(e)the Tribunal found the applicant's evidence about whether or not he knew the other workers to be inconsistent and that placed significant doubt on his claims;
(f)the applicant's explanation as to why he tried to fly from the police was not accepted and the Tribunal felt that his attempt to escape from the police was consistent with his trying to hide his employment and hide his identity;
(g)the applicant was working as a construction worker which is work that could otherwise have been carried out by an Australian citizen or a permanent resident;
(h)there was no compelling evidence that the applicant was involved in business research in Australia;
(i)the applicant claimed that he would face hardship in that his general manager would be severely disappointed, but the Tribunal did not find that a compelling reason.
The applicant explained that he was involved in the business of looking at used printers with a view to buying them. He told the Court that there were about 2000 used printers that could be purchased.
The applicant explained that: he was only wearing work boots because his own shoes had been stolen. He said that he had washed the shoes the day before and put them out in a friend's garden to dry.
The following day when he went to get the shoes he found that they had mysteriously disappeared; he had become friendly with some other people from China who worked in the construction industry;
he borrowed a pair of work boots from a friend, because he had no shoes of his own. Those boots had plaster on them; it was just a coincidence that the applicant was found in a van containing plastering equipment and tools. He was only in a van because the other people had given him a lift.
He explained his flight from the police as due to the fact that he did not know why the police were after him, and that it was only human nature to run away. He told the Court today that he was well aware that they were police.
The applicant's claim that the Tribunal came to its decision without any evidence cannot be sustained. In my view there was ample evidence upon which the Tribunal could have been satisfied that the applicant was engaged in employment in the construction industry. It is hardly surprising that the Tribunal rejected the credibility of the applicant's evidence. The applicant's explanation was wholly implausible to say the least. The applicant's actions in attempting to flee from the police are consistent with his having something to hide. The fact that he was found in a vehicle with construction workers and plastering equipment, wearing work boots with traces of plaster on them, are strong pieces of evidence which entitled the Tribunal to arrive at the decision which it did.
There was a considerable amount of evidence which allowed the Tribunal to find that the applicant had breached his visa by working as a construction worker. The fact is, to use the vernacular, he was caught, if not red handed, more correctly – “white booted.”
There is no reviewable error. There is no jurisdictional error that I can discern. The application is dismissed.
The respondent has sought an order for costs, and costs usually follow the event. In other words, the party who is unsuccessful is usually required to pay the costs, or to make a substantial contribution to the costs of the party who is successful.
There are circumstances from time to time where costs are awarded on what is known as an indemnity basis. The decision in Colgate-Palmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225 sets out a useful number of guidelines which the Court should follow. There are a number of guidelines. What is relevant in this case is that had the applicant been properly advised he would have realised that his application had no chance of success.
The applicant's explanation as to why he says he was not working and that the evidence is consistent with another explanation is so far fetched as to be absolutely unbelievable. It is probably one of the most ludicrous explanations that I have heard in Court this year. The very application has shown no error whatsoever on the part of the Tribunal, and appears to have been brought purely as an attempt to enable the applicant to be released from immigration detention and not be returned to his native country.
This is one of these rare cases where it is appropriate to award costs on an indemnity basis.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 7 June 2005
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