FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 411
File number(s): BRG 193 of 2022 Judgment of: JUDGE EGAN Date of judgment: 3 May 2024 Catchwords: MIGRATION LAW – whether PIC 4003(b) precluded the exercise of a discretion by the Minister – whether PIC 4003(b) was repugnant to the provisions of s. 501 of the Migration Act – whether a determination by the Foreign Minister concerning a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction was contrary to the scheme of the Migration Act – no jurisdictional error established on the part of the Administrative Appeals Tribunal – Application for Review dismissed. Legislation: Autonomous Sanctions Act 2011 (Cth), ss 3, 10
Autonomous Sanctions Regulations 2011 (Cth) r. 6A
Migration Act 1958 (Cth), ss 5H, 501Migration Regulations 1994 (Cth), Sch 1, r. 1.03, Sch 2, cl. 500.217, 866.222A, Sch 4 PIC 4003(b)
Cases cited: ENT19 v Minister for Home Affairs (2023) 97 ALJR 509
Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1VWOK v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2005) 147 FCR 135
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of last submission/s: 2 April 2024 Date of hearing: 21 August 2023 and 2 February 2024 Place: Brisbane Counsel for the Applicant: Mr M. Black Solicitor for the Applicant: DJ Law Group Counsel for the First and Third Respondents: Mr B. Kaplan Solicitor for the First and Third Respondents: Australian Government Solicitor Second Respondent Submitting appearance, save as to costs. ORDERS
BRG 193 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: XIAOLONG ZHU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
MINISTER FOR FOREIGN AFFAIRS AND TRADE
Third Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
3 MAY 2024
IT IS ORDERED THAT:
1.The Amended Application for Review filed on 7 August 2023 be dismissed.
2.The First and Third Respondents shall file and serve written submissions on costs on or before 4pm on 10 May 2024.
3.The Applicant shall file and serve written submissions in reply on or before 4pm on 17 May 2024.
4.The Court’s decision of costs will be made on the papers by consent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
INTRODUCTION
The Applicant is a 35 year old male citizen of the Peoples’ Republic of China who was granted a Subclass 600 Visitor Visa on 26 March 2018, which visa was valid until 1 November 2018.
On 9 August 2018, the applicant applied for a Class TU (Subclass 500) (Student) Visa, and subsequently, for a Student (Post Graduate Research Sector) Visa.
The applicant had been awarded the degree of Master of Engineering on 1 July 2015 from the Beihang University in the Peoples’ Republic of China, his having successfully defended his Master’s Thesis in the specialty of aeronautical engineering in the School of Aeronautical Science and Engineering. [1]
[1] See Certificate at Annexure C to the affidavit of the applicant filed on 7 August 2023 at p. 61.
The post graduate course intended to be undertaken by the applicant was a Doctor of Philosophy (a Doctoral Degree) at the Brisbane Gardens Point campus of the Queensland University of Technology. The course start date as recorded on the applicant’s “Overseas Student Confirmation of Enrolment Form” (COE) was 3 September 2018, with a course end date of 2 September 2022. Total tuition fees payable in respect of such course were recorded on the COE as being in the amount of $AU136,000.00. [2]
[2] See p. 41 of Annexure C to the applicant’s affidavit.
A “Confirmation of Current Enrolment” form on QUT letterhead recorded that the applicant was undertaking research for a thesis as at 6 March 2019. [3] Specifically, the applicant’s area of research, as set out in his Research Proposal provided to QUT, was as follows:
[3] See p. 42 of Annexure C to the applicant’s affidavit.
Doctor of Philosophy
Area of research, including faculty/centre/school in which course of study lies
The area of research is on Multi-UAV navigation in GPS denied environments.
Science and Engineering Faculty
Robotics and Autonomous Systems
Objectives of the program of research and investigation
The objective of this research is to design and optimize an approach, based on onboard cameras and POMDP algorithm, for multi-UAV navigation in GPS denied environments (e.g. forest, mine cave, natural and urban canyons)
Research methods and plan including reference to key literature sources and ethics
The research focus is in the following areas:
(1)Surveying and studying current algorithms and models about the area of multi-UAV navigation in GPS denied environments.
(2)Suggesting new mode/approach that can be utilized IN 3-4 UAVs navigation.
(3)Implementation and testing of such model/approach.
At the first stage, the main focus is on surveying and studying different methods and models which have been researched in multi UAVs cooperation in navigation and UAV navigation in GPS denied environments. Various researches in POMDP of multi-robot cooperation, path planning, monocular-based SLAM, visual odemetry, cooperative multi-robot navigation and mapping, autonomous navigation in GPS-denied environments etc. have approached by various models and methods [1-20].
In the second stage, this research designs and optimizes a new model and approach of navigation in GPS denied environments by multi UAVs cooperating. After deeply studied those mention methods, a system will be build to combine the POMDP model and a camera/sensor based detection and navigation approach.
In the third stage, the implementation of proposed model/approach and system testing will be performed. The system will be tested under several proper scenarios. The reliability of the proposed model/approach will be verified.
Proposed QUT principal supervisor/QUT associate supervisor(s)/non-QUT associate supervisors
Associate Professor Felipe Gonzalex
Science and Engineering Faculty,
Robotics and Autonomous Systems,
Australian Research Centre for Aerospace Automation (ARCAA)
Queensland University of Technology
The acronym “UAV” was a reference to an Unmanned Aerial Vehicle.
It was not in dispute that the applicant had co-authored a number of academic papers before he had commenced his research at QUT. One such paper was titled “Deep Space Exploration Satellite Formation Kinetic Control Algorithm Research”, the translation of which, in part, read as follows: [4]
[4] See p. 59 of Annexure C to the applicant’s affidavit.
Deep Space Exploration Satellite Formation Kinetic Control Algorithm Research
First Author: Jing Lv Second Author: Xiaolong Zhu
(I, Beihang University, School of Aeronautic Science and Engineering, Beijing 100191)
Email: [email protected] [email protected]
Compared with big satellites, small satellites possess the characteristics of light weight, small volume and low cost, which could further constitute virtual big satellite in the form of distributed constellation and thus realize much advantages in the aspect of function. The flight of satellite constellation formation differed from single satellite, the characteristics of which mainly focus on the relationship of stars. Therefore, the theoretical research on satellite constellation formation flight and practical flight should rise to a new level. The control algorithm based on multi-agent could be utilized for formation control design. In the present literature, the multi-agent control algorithm relevant with the linear dynamic model has been very mature while the non-linear dynamic control mainly based on the conformity of the undirected graph and formation problem. The digraph conformity and formation problem is waiting for solution while the dynamic model of satellite belongs to second order high-dimensional non-linear system, which in turn enhanced the difficulties foir solution. In addition, the man-made interference and communication failure existing in space required the control design based on local message transmission, which could reduce the computational expense within the satellite formation network. Therefore, the formation control algorithm has significant meaning for real engineering project. The non-linear dynamic model based on local message transmission and mode, with the multi-agent control technology, developed into deep space exploration satellite formation kinetic control algorithm strategy. The kinetic equation differentiates at each node. Under the condition of dynamic equation with bound, the parameter of control strategy should be determined by boundary. When the dynamic equations of the nodes are same and meet the conditions of Lipschitz condition, the control parameter should be determined by both Lipschitz constant and starting conditions.
By a letter on QUT letterhead dated 23 October 2019, which letter was signed by one Professor Helen Klaebe (Pro Vice-Chancellor - Graduate Research and Development and Chair, Research Degrees Committee), the applicant was advised of the offer to him of substantial CSIRO monetary scholarships (over at least a 2 year period in the annual amount of $37,596), together with tuition fee sponsorship from QUT, in respect of his post graduate research. The letter provided as follows: [5]
[5] See p. 45 of Annexure C to the applicant’s affidavit.
Dear Xiaolong,
Congratulations! Queensland University of Technology (QUT) is pleased to offer you a CSIRO Data61 Scholarship and a CSIRO Data61 Top Up Scholarship to assist you with your Doctor of Philosophy (IF49) candidature.
CSIRO Data61 Scholarship
•Value: This scholarship provides you with an annual stipend of AU$27,596 pa (full time rate, indexed annually in line with that applied by the Australian Government to Research Training Program (RTP) Stipends) to assist with your general living costs.
•Duration: The duration of a full time CSIRO Data61 Scholarship for a student undertaking research doctorate studies is from 01/07/2019 to 02/09/2021 with a possible extension of up to 6 months. The scholarship is governed by the terms and conditions in your Data61 Student Scholarship Agreement.
CSIRO Data61 Top Up Scholarship
•Value: This scholarship provides you with an annual stipend of AU$10,000 pa (full time rate) to assist with your general living costs.
•Duration: The duration of a full time CSIRO Data61 Top Up Scholarship for a student undertaking research doctorate studies is from 01/07/2019 to 02/09/2021 with a possible extension of up to 6 months. The scholarship is governed by the terms and conditions in your Data61 Student Scholarship Agreement.
QUT International HDR Tuition Fee Sponsorship
•Value: The sponsorship covers tuition fees only. It does not provide for travel, living allowance, compulsory Overseas Student Health Cover, initial or ongoing visa and medical examination costs, thesis expenses, the cost of English language testing or tuition fees for English Language courses.
•Duration: The standard full time duration of a QUT HDR Tuition Fee Sponsorship is from 01/07/2019 to 02/09/2021 with a possible extension of up to 6 months.
…
The applicant provided to QUT his written acceptance of the offer of the scholarships, and of the tuition fee sponsorship, on the same date, namely 23 October 2019. [6]
[6] See p. 47 of Annexure C to the applicant’s affidavit.
On 8 June 2020, a letter of that date was sent by a person in the Department of Home Affairs to the applicant, care of his migration agent, which invited the applicant to comment on adverse information received by the Department of Home Affairs, namely information that the Australian Foreign Minister, or a person authorised by the Foreign Minister, had determined that the applicant was a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction. Relevantly, that letter was as follows: [7]
[7] See Exhibit 1 – Court Book (CB) p. 160-163.
8 June 2020
Xiaolong ZHU
Room XX Apartment
XX Road, XX Zone
XX City XXXXX XXXXX XXXXX X
CHINA
In reply quote:
Client name: Xiaolong ZHU
Date of birth: 10 April 1989
Date of visa application: 09 August 2018
Application ID: 1090615926
Transaction reference number: EGOJ4E4G4V
File number: BCC2018/2992302
Transmission method Email sent to [email protected]
Dear Xiaolong ZHU
Invitation to comment on information for a Student (Temporary) (class TU) Student (subclass 500) visa
Adverse information received
We are currently processing your application. During this process we received unfavourable information that may lead to a decision to refuse your application.
Follow the instructions in this letter on how to reply and the timeframe for you to respond.
The department has conducted checks to confirm the information that you provided in your application. During this process we have received information which does not support your application.
It is a requirement for the grant of a Student (Temporary) (class TU) Student (subclass 500) visa that the applicant satisfies Public Interest Criterion (PIC) 4003 contained in Schedule 4 to the Migration Regulations 1994. PIC 4003(b) requires that the applicant:
“is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction”.
The Department has received information that the following applicant for a Student (Temporary) (class TU) Student (subclass 500) visa has been determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction:
•ZHU, XIAOLONG (xx/xx/xxxx,X)
The Department believes this applicant to be you. As you are determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction, this means that you have failed to meet Public Interest Criterion 4003(b). The Migration Act 1958 requires that your application be refused if the Minister (or a delegate) is not satisfied that you meet all of the criteria for the visa.
The Department of Home Affairs is unable to provide any further information in relation to, the above determination, including the reasons for it.
You are invited to comment on the above information.
…
The determination referred to in the 8 June 2020 letter to the applicant from the Department of Home Affairs was made on 3 June 2020 by a person duly authorised by the Foreign Minister to do so. [8] That was not in dispute. The person made the determination under Public Interest Criterion (PIC) 4003(b) of Schedule 4 to the Migration Regulations 1994 (Cth) (the Regulations). PIC 4003 provided as follows:
[8] See p. 115 of Annexure C to the applicant’s affidavit.
4003 The applicant:
(a)is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia is, or would be, contrary to Australia's foreign policy interests; and
(b)is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction; and
(c) either:
(i)is not declared under paragraph 6(b) or 6A(1)(b), (2)(b), (4)(b), (5)(b), (8)(b) or (9)(b) of the Autonomous Sanctions Regulations 2011 for the purpose of preventing the person from travelling to, entering or remaining in Australia; or
(ii)if the applicant is declared--is a person for whom the Foreign Minister has waived the operation of the declaration in accordance with regulation 19 of the Autonomous Sanctions Regulations 2011.
PIC 4003 was one criterion which was required to be met by an applicant for the making of a valid visa application under cl. 500.217(1) of Schedule 2 to the Regulations.
The phrase “proliferation of weapons of mass destruction” was defined in r. 1.03 of Schedule 1 to the Regulations as follows:
“proliferation of weapons of mass destruction includes directly or indirectly assisting in the development, production, trafficking, acquisition or stockpiling of:
(a) weapons that may be capable of causing mass destruction; or
(b)missiles or other devices that may be capable of delivering such weapons
Subsequent to the applicant’s receipt of the 8 June 2020 letter from the Department of Home Affairs, the applicant’s migration agent provided to that Department, by way of a response, a letter from Professor Klaebe dated 15 June 2020 which provided as follows: [9]
[9] See p. 25 of Annexure C to the applicant’s affidavit.
15 June 2020
To Whom It May Concern,
Mr Xiaolong Zhu (DOB: 10 April 1989) commenced his Doctor of Philosophy (PhD) at Queensland University of Technology (QUT) on 3 September 2018 under the supervision of Associate Professor Felipe Gonzalez.
I would like to confirm that the specific research topic of Ziaolong Zhu’s PhD thesis is not directly or indirectly associated with a proliferation of weapons of mass destruction. The topic of his research is on ‘An Approach for Multi-UAV Navigation in GPS-Denied Environments Using Sequential Decision Making under Uncertainty’.
His research concentrates on decision-making theory and aims to develop an efficient system that uses three or four UAVs also commonly known as drones, for civilian application scenarios in search for injured person in an indoor clutter environment during search and rescue mission. With the help of this system, a rescue team in Australia can precisely and quickly locate a person needing help inside a building in critical situations such as earthquakes and fires, without risking the life of a rescue team and reducing the time needed to find an injured person.
Larger UAVs and advanced electro-optical systems can have a dual purpose; civil and defence, however in this research we are using small drone platforms, with a maximum take-off weight under 2 kgs and RGB camera (in accordance with the Civil Aviation Safety Rules < 2Kgs drones) for navigation and finding the injured person. The UAVs are not different from commercially available drones (e.g. Phantom 2, or Phantom 4) and the cameras used are not different to for example a GoPro camera.
Kind Regards
Professor Helen Klaebe
Pro-Vice-Chancellor
Graduate Research & Development
Division of Research and Innovation
Queensland University of Technology
On 21 October 2020, the applicant received a letter from a delegate of the Minister for Home Affairs which advised the applicant that notwithstanding the contents of the letter from Professor Klaebe, the delegate was not satisfied that the applicant had met the PIC 4003 criteria, and that therefore, the application for the visa was refused. [10]
[10] CB pp. 175-178.
The applicant asked for the decision of the delegate to be reviewed by the Administrative Appeals Tribunal (the Tribunal). On 5 April 2022, the Tribunal affirmed the decision of the delegate.
For the purpose of recording how the matter progressed before the Tribunal, it is convenient to set out [14]-[33] inclusive of the reasons of the Tribunal, which relevantly were as follows:
14. On 13 May 2021, the Tribunal wrote to the applicant inviting him to attend a hearing on 8 June 2021. On 14 May 2021 the applicant requested a hearing postponement for the purpose of collecting his evidence. The Tribunal consented to a postponement and on 24 May 2021 the Tribunal wrote to the applicant inviting him to attend a rescheduled hearing on 8 July 2021. On 29 June 2021 the Tribunal was notified that the applicant had engaged a new representative and received a request that the hearing be postponed in order that they have adequate time to take instructions and assist the applicant to prepare submissions. The Tribunal consented to this request.
15. On 23 July 2021 the Tribunal received an email from the applicant’s representative advising that the applicant was applying to the Acting Assistant Secretary of the Department of Foreign Affairs and Trade (DFAT) for the revocation of the determination and asked that a hearing be delayed in order to provide time for the applicant to receive a response from DFAT. The Tribunal considered this request reasonable and requested that it be provided by 22 September 2021 with an update as to the progress of the request to DFAT.
16. On 23 September 2021 the Tribunal wrote to the applicant, pursuant to s 359(2) of the Act, noting that the Tribunal had not received any further comment or response from him and invited him to provide any further arguments or evidence that he wished to be taken into account before a decision is made in relation to his review application.
17. The Tribunal received a response on 7 October 2021, which included:
•Representative’s written submissions, dated 7 October 2021
•Copy of an email, Representative to DFAT, 24 September Copy of AAT 1915247 Decision Record, Huang (Migration) [2021] AATA 1628 (9 June Copy of Order, High Court of Australia [2013] HCA 18 (8 May 2013, B68/2012)
•Commonwealth Consolidated Acts – Migration Act 1958 (Cth) – s 363
•Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, File number: NSD 1448 of 2013, Order 4 February 2014
•Scholarship Offer, Professor Klaebe to Xiaolong Zhu, 23 October 2019
•Response to Scholarship Offer, Xiaolong Zhu, 23 October 2019
•Letter, dated 15 June 2020, from Professor Klaebe
•Evidence of the applicant’s prior studies and published articles.
•PhD–Research Proposal, Multi-UAV navigation in GPS denied environments
•Applicant’s Personal Statement, received 7 October 2021
•Confirmation of Enrolment (COE) 9DBABC67 PhD [006367J], 03/09/2018-02/09/2022
•QUT, Confirmation of Current Enrolment, PhD, as at 03/03/2019
18. On 25 October 2021 the Tribunal wrote inviting the applicant to a hearing on 8 December 2021. On 28 October 2021 the Tribunal received a request for hearing postponement on the basis that circumstances impacting the applicant’s representative precluded their participation in the hearing set down for 8 December 2021. The Tribunal consented to this request and on 28 October 2021 an invitation was sent for the applicant to appear on 11 January 2022.
19. The applicant was provided time following the hearing on 11 January 2022 to clarify the outcome of the application to DFAT to have the determination revoked. The tribunal, by way of a written letter, gave the applicant until 8 February 2022 to provide further evidence as to whether DFAT had revoked the determination. No such update was provided to the Tribunal by 8 February 2022, or by the time of this decision. The Tribunal was notified of a change in contact details for the applicant’s representative but has received no request that a decision be further delayed, nor any further submissions in support of the applicant’s claims.
Certificates issued by the Department
The s 376 Certificate
20. The Department issued a Certificate under s 376 of the Act on 24 June 2021, which certified that disclosure of material in specified documents on the Departmental file would be contrary to the public interest because this information would disclose lawful methods for preventing, detecting, and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. The action of the s 376 Certificate, if the Tribunal is satisfied as to its validity, places discretion with the Tribunal in relation to the disclosure of material in the specified documents. The Tribunal, by way of an email and letter dated 29 June 2021, invited submissions from the applicant and their representative as to the validity of the s 376 Certificate.
21. No written response was received to this invitation. At hearing neither the applicant nor their representative raised any concern as to the validity of the certificate. The Tribunal, after careful consideration of the Certificate is satisfied that it is appropriately dated and signed by an officer of the Department with the delegated authority of the Minister. The Tribunal is also satisfied that the Certificate identifies a valid reason as to why it would be contrary to the public interest for the information in the specified documents to be released, as the Tribunal is satisfied this could prejudice the effectiveness of lawful methods utilised by the Department for preventing, detecting, and investigating breaches or evasions of the law. The Tribunal therefore found the s 376 Certificate is valid and has exercised its authority to not release the certificated documents.
22. The Tribunal did, however, at hearing inform the applicant of the gist of the nature of the restricted documents, explaining to him that they consisted of emails between sections within the Department discussing the processing of his Student visa application once the Department had received the determination pertaining to PIC 4003(b) from DFAT. The Tribunal explained that it did not consider the information in the restricted documents to be relevant to determinative issues before the Tribunal, such as whether the Foreign Minister, or a person authorised by the Foreign Minister had issued the determination.
The s 375A Certificate
23. The Department issued a Certificate under s 375A of the Act on 12 July 2021, which certified that disclosure otherwise, then to the Tribunal, of the information described, would be contrary to the public interest because it would disclose, or enable a person to ascertain the existence or identity of, a confidential source of information. The Certificate stated that this applies to the determination made by an Officer of DFAT, dated 3 June 2020, regarding PIC 4003(b) in Schedule 4 to the Migration Regulations 1994 (Cth) (the Regulations) that is applied to the applicant, Xiaolong Zhu (DOB: 10 April 1989).
24. The Tribunal, by way of an email and letter dated 16 July 2021, invited submissions from the applicant and their representative as to the validity of the s 375A Certificate. No written response was received to this invitation. At hearing neither the applicant nor their representative raised any concern as to the validity of the Certificate. The Tribunal, after careful consideration of the Certificate is satisfied that it is appropriately dated and signed by an officer of the Department with the delegated authority of the Minister. The Tribunal is also satisfied that the Certificate identifies a valid reason as to why it would be contrary to the public interest for the information in the specified documents to be released, as the Tribunal is satisfied this could disclose, or enable a person to ascertain the existence or identity of, a confidential source of information. The Tribunal therefore found the s 375A Certificate is valid.
25. Notwithstanding this, the Tribunal provided the applicant with the gist of the information in the certificated document, namely that a determination was made, in accordance with PIC 4003(b) in Schedule 4 to the Regulations that Xiaolong Zhu is a person whose presence in Australia may be directly, or indirectly associated with the proliferation of weapons of mass destruction.
26. Further to this the Tribunal explained to the applicant that information in the certificated documents shed no light on why DFAT had assessed the applicant to be a person whose presence in Australia may be directly, or indirectly associated with the proliferation of weapons of mass destruction, merely that the determination had been made that he was such a person.
The hearing
27. The applicant’s evidence at hearing and oral submission from his representative is summarised as follows.
28. The applicant confirmed that his name is Xiaolong Zhu and that his date of birth is 10 April 1989. He indicated that he is not known by any other name. He conceded that the determination was made in relation to him and that he has no reason to believe that there could be a case of mistaken identity.
29. The applicant gave evidence that he wishes to rely on the written submission provided to the Tribunal in association with his review application. In response to questions put to him at hearing he indicated that he does not agree with the determination that he is a person who should be associated with weapons of mass destruction. His PhD research is not applicable to military purposes, rather it is for use in disasters, such as bushfires or earthquakes, where buildings may have collapsed, or it is otherwise dangerous for people to search for victims or evaluate damage. He gave evidence that whilst he is researching the use of linked drones, it involves only groups of two to four small drones, weighing less than two kilograms each, with cameras mounted on them. The small drones have very limited lifting capacity and both they and the small cameras mounted on them are the sort of technology that is in the public domain. He said the focus of his research includes how the drones can fly through GPS denied environments. The applicant gave evidence that the research is supported by both the Australian disaster organisation and QUT and has occurred in collaboration with the CSIRO.
30. The applicant gave evidence at hearing that he has sought a review from DFAT with respect to the determination. The applicant’s representative told the Tribunal that DFAT have not as yet notified the applicant as to the outcome from his request that the determination be revoked and that her plan is to contact DFAT and seek an update with respect to this issue.
31. The Tribunal invited submissions from the applicant with regard to what constitutes a reasonable opportunity for him to progress his request to DFAT that it reviews and revokes the determination. The applicant told the Tribunal that he is not worried how long it may take DFAT to respond to his request as, even though he is aware that his situation is serious, he does not think that he is a person to whom the determination should have been made. The applicant said he is aware that the time issue has relevance to the Tribunal but that he has no control over how long DFAT takes and that what he wants is for the process to be fair. With respect to this issue the applicant’s representative referred the Tribunal to cases referred to in her written submissions where the Tribunal had provided an applicant with a reasonable period of time before making a decision in relation to PIC 4003(b).
32. The applicant’s representative submitted that it is in the public interest to allow the applicant to complete his PhD studies, as the outcome of this research will be of benefit to Australia if it was completed here in Australia. She submitted that the support letter from Professor Klaebe clearly shows that the applicant’s research does not have bearing on weapons of mass destruction and that the refusal of a visa due to PIC 4003(b) would have serious adverse consequences for the applicant, given the impact it could have on his future career opportunities and upon these applications he may wish to make to return to Australia or travel to other countries.
33. The written submissions from the applicant’s representative are discussed below.
By a letter from AusLaw Partners to the Assistant First Secretary of the Department of Foreign Affairs dated 23 September 2021, written on behalf of the applicant, an application for revocation of the 3 June 2020 determination adverse to the applicant was duly made. [11]
[11] See pp. 17-21 of Annexure C to the applicant’s affidavit and pp. 117-118 of Annexure D to the applicant’s
In response to the 23 September 2021 letter from AusLaw Partners, the Assistant Director of the Public Interest Criteria Section of the Department of Foreign Affairs wrote to the applicant c/o AusLaw Partners (the letter was undated but sent on 27 October 2022) to advise him that a decision-maker authorised by the Foreign Minister would review the determination made on 3 June 2020 under PIC 4003(b). [12]
[12] See pp. 37-38 of Annexure C to the applicant’s affidavit and [4] of the Harvey affidavit filed on 17
A further determination was made on 11 November 2022 by one Mr Biggs, in his capacity as Ambassador for Arms Control and Counter-Proliferation in the Department of Foreign Affairs and Trade. That determination was that the applicant was a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction. [13]
[13] See Annexure RPH-2 to the Harvey affidavit.
As set out in the affidavit of Mr Harvey filed on 17 August 2023 at [3]-[7] thereof, there was no indication that email correspondence sent by DFAT to the lawyers for the applicant, concerning either the emailed letter of 27 October 2022, or an emailed letter of 14 November 2022, had not been received by them.
Application for Review
Having set out in its reasons that it was unaware as to the reason, or reasons, why the PIC 4003(b) determinations were made, and when addressing the possible bases for overturning a decision of a delegate of the Minister to refuse to grant a visa on PIC 4003(b) grounds, the Tribunal, at [38] of its reasons, found as follows:
38. The Tribunal is of the view that there are only two circumstances where, after a PIC 4003(b) determination has been made, the Tribunal can set aside a delegate’s decision made on that basis:
•Firstly, if the applicant can positively establish that the determination was not made in respect of them i.e. a case of mistaken identity; or,
•If the determination is rescinded or revoked and evidence of this is provided to the Tribunal; or,
•Secondly, if the determination is rescinded or revoked and evidence of this is provided to the Tribunal.
In the absence any of the matters as set out in [38] of its reasons being satisfied, the Tribunal held that it would have been inappropriate for it to have gone behind the DFAT determination/assessment for the purpose of its review of the decision of the delegate. [14] For that reason, the Tribunal considered it of no utility to grant any further application for an adjournment or stay of the decision of the Tribunal. It then ruled against the applicant in the review application to the Tribunal, and affirmed the decision of the delegate.
[14] [51] of the reasons of the Tribunal at CB p. 404.
Grounds of Review
At the time of the hearing of the application for review before the Court, the applicant only relied upon ground 4 of the Amended Application filed on 7 August 2023. Ground 4 was as follows:
GROUND FOUR
5.Relevantly, under s 500.217(1) of Schedule 2 of the Migration Regulations 1994, an applicant for a student visa must satisfy "public interest criteria .. . 4003". Schedule 4 of the Regulations sets out the public interest criteria (PIC), including PIC 4003 as follows:
4003 The applicant:
(a)is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia is, or would be, contrary to Australia's foreign policy interests; and
(b)is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction; and
(c) either:
(i)is not declared under paragraph 6(b) or 6A(1)(b), (2)(b), (4)(b), (5)(b), (8)(b) or (9)(b) of the Autonomous Sanctions Regulations 2011 for the purpose of preventing the person from travelling to, entering or remaining in Australia; or
(ii)if the applicant is declared--is a person for whom the Foreign Minister has waived the operation of the declaration in accordance with regulation 19 of the Autonomous Sanctions Regulations 2011.
6.The Tribunal (and the Minister's delegate at first instance) rejected the applicant's application for a student visa solely on the basis that he did not satisfy PIC 4003(b).
7.Clause 500.217(2) and PIC 4003 are invalid and ultra vires on the same or similar grounds as identified by the High Court in Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1; including as follows:
a. The Migration Act 1958 creates a statutory scheme for, relevantly, the grant of the classes of visa prescribed by the Regulations: Act, s 31.
b. One prescribed class of visa is the student visa: Regulations, Sch 1, clause 1222 (and Sch 2, clause 500 re subclasses).
c. A decision-maker has a discretionary power to refuse or cancel a visa, including on "national interest" grounds or "character" grounds: Act, s 501.
d. Where a visa is refused or cancelled, the decision may be subject to merits review by the AA T: Act, s 500 / Parts 5 and 7.
e. Regulations made for the purposes of the Act must not be inconsistent with the Act: s 504(1).
f. PIC 4003 is not authorised by s 31 or s 504 or s 505 of the Act.
g.PIC 4003 is inconsistent with the powers and discretions entrusted to decisionmakers to grant, refuse or cancel visas under the Act, because the conditions dealt with by PIC 4003 are the same subject matter as may fall within s 501 of the Act but PIC 4003 precludes the exercise of discretion that would otherwise be available under s 501.
h. PIC 4003 is inconsistent with the scheme for merits review provided by the Act, because if the conditions described in PIC 4003 were relied on to refuse or cancel a visa under s 501 of the Act full merits review of the decision would be available, whereas refusal or cancellation based on PIC 4003 renders the scheme of merits review futile or nugatory because the AA T is confined to considering whether the Foreign Minister has made a determination described in PIC 4003.
i. PIC 4003 is inconsistent with the Act, because it shifts decision-making about elements of "national interest" out of the discretionary power provided in s 501 of the Act that is subject to merits review, and instead makes those elements mandatory grounds for visa refusal in a way that is not subject to merits review.
8.In Plaintiff M47/2012, Kiefel J said that the Act empowered the Minister to consider and refuse a visa (a protection visa in that case) having regard to various grounds and explained (at [458]): PIC 4002, if applied, would deny the Minister that consideration and it would deny the review process specified ins 500(1). It has the effect of bringing the consideration by the Minister, or the Minister's delegate, to a premature end and rendering the decision to that effect non-reviewable. The process created by PIC 4002 requires a refusal of a protection visa based entirely upon an opinion formed by officers of ASIO. But it is nowhere contemplated by the Migration Act that officers of ASIO are to have a determinative role regarding applications for visas.
9. Similarly, here, PIC 4003 would deny the Minister (or delegate) the capacity to make a discretionary decision about "national interest" or "character" grounds under s 501. PIC 4003 requires a refusal of a visa based entirely upon an opinion formed by the Foreign Minister (or delegate), but nowhere in the Act is contemplated that officers of the Department of Foreign Affairs are to have a determinative role regarding visas. PIC 4003 is fundamentally inconsistent with the Act.
10. As clause 500.217(2) and PIC 4003 are invalid, the Tribunal's decision to refuse the visa on the basis of PIC 4003 is vitiated by jurisdictional error.
At [33]-[43] of the applicant’s written submissions filed on 23 February 2024, Counsel for the applicant submitted that there were four respects in which PIC 4003(b) departed from what were submitted to be essential features of the scheme of the Act. Each of the four respects relied upon by the applicant related to a consideration of whether PIC 4003(b) prevented the Minister from properly exercising a discretion, vested in the Minister, pursuant to the provisions of s. 501(1) of the Act. Rather, it was submitted that under the Act, as properly construed, the exercise of discretion to refuse to grant a visa ought to vest solely in the Minister, rather than the Minister, in effect, being precluded from exercising the relevant discretion, because a conclusive determination under PIC 4003(b) had been made by either the Foreign Minister, or a person authorised by the Foreign Minister, to make such determination.
At [44]-[46] of the applicant’s written submissions, it was submitted as follows:
44.In summary, the Applicant submits that when PIC 4003(b) is considered in light of those four features of the Act, it can be seen that:
(a)The Act establishes a detailed scheme in s 501 for assessing character matters, with primary responsibility given to the Immigration Minister. That scheme gives broad scope to the Immigration Minister to make an assessment of a person’s risk or conduct (such as via s 501(6)(d)(v)). And, where Parliament has deemed it appropriate, s 501(6) gives effect to character assessments made by, relevantly, via an ASIO security through s 501(6)(g))—but Parliament made no such allowance for the Foreign Minister.
(b)The Act bestows upon the Immigration Minister an unfettered discretion in s 501(1) to grant a visa, even if the Immigration Minister has made an adverse character assessment and even if, relevantly, ASIO has made an adverse security assessment.
(c)The Act entitles a visa applicant to written reasons for any character test assessment made by the Immigration Minister under s 501.
(d)The Act sets up a special avenue for independent merits review of s 501 character test decisions that are made by delegates of the Immigration Minister (as occurred here).
45. However, PIC 4003(b) cuts across the Act by empowering the Foreign Minister to make an assessment that would otherwise fall for consideration by the Immigration Minister under s 501(6). In so doing, PIC 4003(b) impermissibly shifts responsibility to the Foreign Minister; removes the Immigration Minister’s discretion; denies a visa applicant the right to written reasons; and forecloses any entitlement to independent merits review of the assessment.
46. As such, it is submitted that PIC 4003(b) alters or departs from the scheme set up by the Act in an important or material way. That alteration or departure shows an inconsistency between the Act and PIC 4003(b) sufficient to conclude that PIC 4003(b) is beyond power and invalid.
The Court does not accept the submissions made by Counsel for the applicant. When considering the validity or otherwise of Regulations, a Court is required to look at the statutory purpose sought to be fulfilled, and in doing so, the Court must look to the context in which that statutory purpose might be fulfilled. That question was considered in ENT19 v Minister for Home Affairs (2023) 97 ALJR 509 at [86]-[87], per Gordon, Edelman, Steward and Gleeson JJ, where it was held:
“86.Regulations are to be construed according to the ordinary principles of statutory construction. The starting point for the ascertainment of the meaning of a provision is its text, while at the same time regard is to be had to its context and purpose. Of course, the statutory context of regulations includes the Act under which the regulations were made and are sustained. Context should be regarded at the first stage and not at some later stage and it should be regarded in its widest sense, including by reference to legislative history and extrinsic material. As Kiefel CJ, Nettle and Gordon JJ explained in SZTAL v Minister for Immigration and Border Protection:
"This is not to deny the importance of the natural and ordinary meaning of a word ... Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected."
87.The context of the words, consideration of the consequences of adopting a provision's literal meaning, the purpose of the statute and principles of construction may lead a court to adopt a construction that departs from the literal meaning of the words of a provision. One such principle is that legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. As expressed by Gageler J in SAS Trustee Corporation v Miles, "statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means". Where conflict appears to arise in construing an Act, "the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions", and this "will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'". Ultimately, the task in applying the accepted principles of statutory construction is to discern what Parliament is to be taken to have intended.”
When construing the validity or otherwise of PIC 4003(b), regard must be had, contextually, to any legislation which the Parliament had enacted concerning the proliferation of weapons of mass destruction. In that regard, s. 3 of the Autonomous Sanctions Act 2011 (Cth) clearly addressed the proliferation of weapons of mass destruction, and relevantly provided as follows:
Section 3
Objects of this Act
(1) The main objects of this Act are to:
(a) provide for autonomous sanctions; and
(b) provide for enforcement of autonomous sanctions (whether applied under this Act or another law of the Commonwealth); and
(c)facilitate the collection, flow and use of information relevant to the administration of autonomous sanctions (whether applied under this Act or another law of the Commonwealth).
Country - specific sanctions
(2) Without limiting subsection (1), the autonomous sanctions may address matters that are of international concern in relation to one or more particular foreign countries.
Thematic sanctions
(3)Without limiting subsection (1), the autonomous sanctions may address one or more of the following:
(a) the proliferation of weapons of mass destruction;
(b) threats to international peace and security;
(c) malicious cyber activity;
(d) serious violations or serious abuses of human rights;
(e)activities undermining good governance or the rule of law, including serious corruption;
(f) serious violations of international humanitarian law.
Section 10 of the Autonomous Sanctions Act 2011 provided that Regulations made under the Act could impose sanctions in relation to certain conduct. Section 10 was as follows:
Section 10
Regulations may apply sanctions
(1) The regulations may make provision relating to any or all of the following:
(a) proscription of persons or entities (for specified purposes or more generally);
(b) restriction or prevention of uses of, dealings with, and making available of, assets;
(c) restriction or prevention of the supply, sale or transfer of goods or services;
(d) restriction or prevention of the procurement of goods or services;
(e) provision for indemnities for acting in compliance or purported compliance with the regulations;
(f) provision for compensation for owners of assets that are affected by regulations relating to a restriction or prevention described in paragraph (b).
(2) Before the Governor - General makes regulations for the purposes of subsection (1), the Minister must be satisfied that the proposed regulations:
(a) will facilitate the conduct of Australia's relations with other countries or with entities or persons outside Australia; or
(b) will otherwise deal with matters, things or relationships outside Australia.
(3) Despite subsection 14(2) of the Legislation Act 2003 , regulations made for the purposes of subsection (1) may make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.
(4) If:
(a) under a provision of the regulations, the Minister has a power to make a legislative instrument relating to the proscription of persons or entities other than by reference to one or more particular countries; and
(b) under that provision, the Minister proposes to make a legislative instrument proscribing one or more persons or entities; then before making the instrument:
(c) the Minister must consult the Attorney - General and obtain the Attorney - General's agreement in writing to the making of the instrument; and
(d) the Minister must consult such other Ministers as the Minister considers appropriate.
(5) If:
(a) under the regulations, the Minister has made a legislative instrument proscribing one or more persons or entities other than by reference to one or more particular countries; and
(b) under the regulations, the Minister proposes to make another legislative instrument continuing the effect of the proscription, or revoking the proscription, of one or more of those persons or entities; then before making the other instrument:
(c) the Minister must consult the Attorney - General and obtain the Attorney - General's agreement in writing to the making of the other instrument; and
(d) the Minister must consult such other Ministers as the Minister considers appropriate.
(6)If, under a provision of the regulations, the Minister has a power to make a legislative instrument, the Minister must not, under the regulations, delegate that power to another person.
Regulation 6A of the Autonomous Sanctions Regulations 2011 (Cth) empowered the Australian Foreign Minister to impose sanctions, upon designation, in respect of the proliferation of weapons of mass destruction, and was as follows:
Thematic designation of persons or entities or declaration of persons
Proliferation of weapons of mass destruction
6A (1) For the purposes of paragraph 10(1)(a) of the Act, the Minister may, by legislative instrument, do either or both of the following:
(a) designate a person or entity as a designated person or entity if the Minister is satisfied that the person or entity is contributing to the proliferation of weapons of mass destruction;
(b)declare a person for the purpose of preventing the person from travelling to, entering or remaining in Australia if the Minister is satisfied that the person is contributing to the proliferation of weapons of mass destruction.
To the extent that PIC 4003(b) imposed criteria which had to be satisfied prior to the grant to an applicant of a visa, the criteria were separate from, and unrelated to, those matters which possibly precluded the grant of a visa under s. 501 of the Act. [15] The Court accepts the submissions of Counsel for the first and third respondents that PIC 4003(b) did not cut across, diminish, or subjugate the relevant provisions of s. 501 of the Act. Section 501(1), 6(c)(ii) and (6)(d)(v) provided as follows:
[15] See s. 501(6), especially 501(6)(c)(ii) and 501(6)(d)(v).
Section 501
Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
(6) For the purposes of this section, a person does not pass the character test if: (a) …
…
(c) having regard to either or both of the following:
(i) …
(ii) the person’s past and present general conduct;
the person is not of good character; or
…
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
…
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or
…
In VWOK v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2005) 147 FCR 135, the Full Court of the Federal Court was there considering the validity or invalidity of cl. 866.222A of Schedule 2 to the Migration Regulations 1994. The question on appeal in that matter was whether cl. 866.222A was invalid due to its claimed repugnance to s.501 of the Migration Act. The Full Court (Heerey, Finkelstein and Allsop JJ), agreed with the analysis of Crennan J at first instance on that issue. At [17]-[20] of the judgment of the Full Court, it was held as follows:
“17.Thus, it was said that, in practical terms, para 866.222A and s 501 both seek to operate on the same subject matter (a conviction) and in the same context (whether or not to refuse a visa). They cannot, it was said, do so consistently, because para 866.222A detracts from the operation of s 501 by precluding the exercise of a discretion not to refuse a visa notwithstanding the existence of a conviction. This was said to be a direct inconsistency and an encroachment on the area carved out by the legislature in s 501.
18.The learned primary judge dealt with this argument in [30] to [34] of her Honour’s reasons, as follows:
On this aspect, I accept the submissions on behalf of the respondent that cl 866.222A is not additional to or inconsistent with s 501 of the Act.
In providing for the respondent to exercise a special power to refuse or cancel a visa under s 501, where the respondent is not satisfied that an applicant passes the character test, the respondent can take into account `past and present general conduct´ as well as `past and present criminal conduct.´
There are other powers to cancel a visa (see s 118). The terms of s 501 do not evince any intention to exhaustively cover the circumstances in which a criminal record may be taken into account. Other sections of the Act, such as 91T and 91U also deal with criminal conduct. Section 501 does not contain criteria for the grant of a visa as does cl 866.222A. There is nothing repugnant to the Act in regulations containing certain specified criteria for certain specified visas as contemplated by s 31. Section 501 contains a power to refuse or cancel a visa; the power to grant a visa is provided in s 65 of the Act. Finally, cl 866.222A cannot be described accurately as a ` mandatory exclusion´ as it was in written submissions on behalf of the applicant. In its terms, the clause operates to preclude an applicant from obtaining a Permanent Protection visa in the circumstances covered. As there are no equivalent criteria in respect of a Temporary Protection visa, an applicant is not excluded from protection; rather an applicant does not obtain all the benefits of a Permanent Protection visa until the effluxion of four years in respect of convictions covered by the clause. It can be noted in this regard that cl 866.228(b) allows the Minister to specify in writing the requisite period for which the applicant needs to hold his Temporary Protection visa in the context of qualifying for a Permanent Protection visa. In the normal course the applicant will not be impeded by cl 866.222A after 21 June 2005. I accept that should the applicant seek to renew or expedite an application for a Permanent Protection visa after 21 June 2005, the nature of a spent conviction order and s 25(1) of the Spent Convictions Act and s 45(1) of the Sentencing Act are matters worthy of consideration having regard to the different provisions in respect of family sponsorship for Temporary and Permanent Protection visa holders. However, I express no views beyond that as the fate of any application made by the applicant under cl 866.228(b) is entirely a matter for the Minister.
There is nothing clearly inconsistent or clearly lacking in harmony in the coexistence of a power to refuse a particular class of visa for failure to satisfy certain criteria set out in subordinate legislation and a power to refuse to grant a visa on character grounds under the Act. The fact that each of s 501 of the Act and the Regulation in question refers to convictions, but deals with them differently, one from the other, reflects no more than their different purposes. Section 501 may be exercised independently of the satisfaction of criteria for a visa of a specified class. Clause 866.222A does not diminish, add to or derogate from the regime in s 501.
Thus, it seems to me that cl 866.222A does not impose distinct ` additional´ criteria to any requirements of s 501, and does not fall outside the regulation making powers under the Act; further it is neither an inconsistent piece of subordinate legislation nor does it create a regime for dealing with character, different from that provided in the Act. Accordingly, the authorities relied on for the applicant are all distinguishable: see Morton v Union Steamship Company of New Zealand [1951] HCA 42; (1951) 83 CLR 402; Ira, L & LC Berk Ltd v The Commonwealth (1930) 30 SR (NSW) 119 and Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245. In my view cl 866.222A is valid subordinate legislation.
19.We agree with her Honour’s analysis. Further, from the terms of s 501, the terms of s 501H and the Explanatory Memorandum for the Bill, the passing of which introduced ss 501 and 501H into the Migration Act, s 501 can be seen as a power available to the Minister additional to all other powers of refusal and not intended to carve out a particular field of criminal conviction or character generally as relevant matters in the grant or refusal of a visa.
20.The structure of the Migration Act is such as to give a central role to the prescription by the Executive of criteria necessary to be satisfied for the grant of a visa. Sections 31 and 65 reflect that.”
The provisions of s. 501 of the Act did not specifically deal with issues concerning the proliferation of weapons of mass destruction. To the extent that PIC 4003(b) dealt with a specific factual scenario not addressed in s. 501, it was not repugnant to that section. The Court accepts the submission made by Counsel on behalf of the first and third respondents that having received notice of the making of a determination under PIC 4003(b) by the Minister for Foreign Affairs, or a person duly authorised by that Minister, the relevant Minister under the Migration Act would nevertheless not be precluded from exercising their discretion under s. 501 of the Act, based upon the making of the determination.
Further support for the proposition that PIC 4003(b) is a separate and different source of power for the refusal of a visa application from that in s. 501, is s. 5H(1) of the Act which, on its face, provided that a power under s. 501 to refuse to grant a visa or cancel a visa was
“ … in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.”
PIC 4003(b) was directed to a different factual scenario to either of the scenarios contemplated by s. 501(6)(c)(ii) or s. 501(6)(d)(v) of the Act. For that reason, and as a matter of construction, the decision of the High Court in Plaintiff M47 (2012) 251 CLR 1 was distinguishable from the facts of the present matter. In Plaintiff M47, the majority found that an assessment under PIC 4002 was essentially the same as that to be made in respect of s. 501(6)(d)(v). The question of overlapping was discussed and confirmed by French CJ in Plaintiff M47 at [71], where His Honour said:
71. Despite the support for the validity of public interest criterion 4002 which might be derived from the decisions of the Federal Court in Sultan and Kaddari, and analogical argument which might be derived from VWOK, the relationship between public interest criterion 4002 and the provisions of ss 500-503 of the Migration Act spells invalidating inconsistency. That is primarily because the condition sufficient to support the assessment referred to in public interest criterion 4002 subsumes the disentitling national security criteria in Arts 32 and 33(2). It is wider in scope than those criteria and sets no threshold level of threat necessary to enliven its application. The public interest criterion requires the Minister to act upon an assessment which leaves no scope for the Minister to apply the power conferred by the Act to refuse the grant of a visa relying upon those Articles. It has the result that the effective decision-making power with respect to the disentitling condition which reposes in the Minister under the Act is shifted by cl 866.225 of the Regulations into the hands of ASIO. Further, and inconsistently with the scheme for merits review provided in s 500, no merits review is available in respect of an adverse security assessment under the ASIO Act made for the purposes of public interest criterion 4002. Public interest criterion 4002 therefore negates important elements of the statutory scheme relating to decisions concerning protection visas and the application of criteria derived from Arts 32 and 33(2). It is inconsistent with that scheme. In my opinion cl 866.225 of the Regulations is invalid to the extent that it prescribes public interest criterion 4002.
The Court further finds that there was no practical inconsistency between PIC 4003(b) and s.501(6)(c)(ii), or s. 501(6)(d)(v), in the circumstances of the present matter, because the delegate was not required to consider either of those two sections when making his refusal decision.
The Court finds that cl. 500.217(1) was not invalid, insofar as it required a visa applicant to satisfy PIC 4003(b) prior to having a valid visa granted to them.
The applicant has not demonstrated any jurisdictional error on the part of the Tribunal.
The Grounds of Review are without merit and are dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 3 May 2024
affidavit.
August 2023.
- AGLC
- Zhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 411
- Case
- [2024] FedCFamC2G 411
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the Minister's decision to revoke Zhu's visa was precluded by paragraph 4003(b) of the Migration Regulations and whether such a decision was repugnant to the provisions of section 501 of the Migration Act. Additionally, the court had to determine if the Minister's determination concerning Zhu's potential involvement in the proliferation of weapons of mass destruction was contrary to the overall scheme of the Migration Act. The court also assessed whether the Administrative Appeals Tribunal had made any jurisdictional errors in its review of the Minister's decision.
The Federal Court found that there was no jurisdictional error on the part of the Administrative Appeals Tribunal. The court held that the Minister's decision to revoke Zhu's visa was not precluded by paragraph 4003(b) of the Migration Regulations. The court further ruled that the Minister's decision was not repugnant to section 501 of the Migration Act and was consistent with the overall scheme of the Act. The court dismissed Zhu's application for review, affirming the Minister's decision.
In conclusion, the court ordered that Zhu's application for judicial review be dismissed, and the Minister's decision to revoke Zhu's student visa was upheld. The court found no merit in Zhu's arguments challenging the legality of the Minister's decision.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
It was not in dispute that the applicant had co-authored a number of academic papers before he had commenced his research at QUT. One such paper was titled “Deep Space Exploration Satellite Formation Kinetic Control Algorithm Research”, the translation of which, in part, read as follows: [4][4] See p. 59 of Annexure C to the applicant’s affidavit.Deep Space Exploration Satellite Formation Kinetic Control Algorithm ResearchFirst Author: Jing Lv Second Author: Xiaolong Zhu(I, Beihang University, School of Aeronautic Science and Engineering, Beijing 100191)Email: [email protected] [email protected] Compared with big satellites, small satellites possess the characteristics of light weight, small volume and low cost, which could further constitute virtual big satellite in the form of distributed constellation and thus realize much advantages in the aspect of function. The flight of satellite constellation formation differed from single satellite, the characteristics of which mainly focus on the relationship of stars. Therefore, the theoretical research on satellite constellation formation flight and practical flight should rise to a new level. The control algorithm based on multi-agent could be utilized for formation control design. In the present literature, the multi-agent control algorithm relevant with the linear dynamic model has been very mature while the non-linear dynamic control mainly based on the conformity of the undirected graph and formation problem. The digraph conformity and formation problem is waiting for solution while the dynamic model of satellite belongs to second order high-dimensional non-linear system, which in turn enhanced the difficulties foir solution. In addition, the man-made interference and communication failure existing in space required the control design based on local message transmission, which could reduce the computational expense within the satellite formation network. Therefore, the formation control algorithm has significant meaning for real engineering project. The non-linear dynamic model based on local message transmission and mode, with the multi-agent control technology, developed into deep space exploration satellite formation kinetic control algorithm strategy. The kinetic equation differentiates at each node. Under the condition of dynamic equation with bound, the parameter of control strategy should be determined by boundary. When the dynamic equations of the nodes are same and meet the conditions of Lipschitz condition, the control parameter should be determined by both Lipschitz constant and starting conditions. By a letter on QUT letterhead dated 23 October 2019, which letter was signed by one Professor Helen Klaebe (Pro Vice-Chancellor - Graduate Research and Development and Chair, Research Degrees Committee), the applicant was advised of the offer to him of substantial CSIRO monetary scholarships (over at least a 2 year period in the annual amount of $37,596), together with tuition fee sponsorship from QUT, in respect of his post graduate research. The letter provided as follows: [5][5] See p. 45 of Annexure C to the applicant’s affidavit. Dear Xiaolong,Congratulations! Queensland University of Technology (QUT) is pleased to offer you a CSIRO Data61 Scholarship and a CSIRO Data61 Top Up Scholarship to assist you with your Doctor of Philosophy (IF49) candidature.CSIRO Data61 Scholarship•Value: This scholarship provides you with an annual stipend of AU$27,596 pa (full time rate, indexed annually in line with that applied by the Australian Government to Research Training Program (RTP) Stipends) to assist with your general living costs.•Duration: The duration of a full time CSIRO Data61 Scholarship for a student undertaking research doctorate studies is from 01/07/2019 to 02/09/2021 with a possible extension of up to 6 months. The scholarship is governed by the terms and conditions in your Data61 Student Scholarship Agreement. CSIRO Data61 Top Up Scholarship•Value: This scholarship provides you with an annual stipend of AU$10,000 pa (full time rate) to assist with your general living costs.•Duration: The duration of a full time CSIRO Data61 Top Up Scholarship for a student undertaking research doctorate studies is from 01/07/2019 to 02/09/2021 with a possible extension of up to 6 months. The scholarship is governed by the terms and conditions in your Data61 Student Scholarship Agreement. QUT International HDR Tuition Fee Sponsorship•Value: The sponsorship covers tuition fees only. It does not provide for travel, living allowance, compulsory Overseas Student Health Cover, initial or ongoing visa and medical examination costs, thesis expenses, the cost of English language testing or tuition fees for English Language courses. •Duration: The standard full time duration of a QUT HDR Tuition Fee Sponsorship is from 01/07/2019 to 02/09/2021 with a possible extension of up to 6 months. …