Zhang v Minister for Immigration & Anor [2014] FCCA 2642 (14 November 2014)

Last Updated: 25 November 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHANG v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2642

Catchwords: MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation: Federal Circuit Court Rules 2001 (Cth)

Applicant:

YANZHI ZHANG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1568 of 2014

Judgment of:

Judge Driver

Hearing date:

14 November 2014

Delivered at:

Sydney

Delivered on:

14 November 2014

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents:

Ms A Wong of DLA Piper

INTERLOCUTORY ORDERS

(1) The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,200.
(3) The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY

SYG 1568 of 2014

YANZHI ZHANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 10 June 2014. The applicant, Mr Zhang, seeks judicial review of a decision of the Migration Review Tribunal (Tribunal). The decision was made on 7 May 2014. The Tribunal affirmed a decision of a delegate of the Minister to cancel Mr Zhang’s student visa.
2. The application was accompanied by a short affidavit which Mr Zhang no longer relies upon. He relies upon a second affidavit made on 18 August 2014 and filed on 20 August. I received that affidavit as a submission.
3. I have before me as evidence the court book filed on 4 July 2014.
4. This matter came before me for first court date directions on 2 July 2014. At that time, Mr Zhang sought the opportunity to attend the next hearing by telephone given that he lives in Griffith. I gave him that opportunity. Mr Zhang attended today’s hearing by telephone. That presented some difficulties as Mr Zhang was apparently about 30 minutes outside of Griffith, travelling in a car. There were several times when the line became indistinct and dropped out. On each occasion, however, the Court was successful in reconnecting Mr Zhang. The call was finally disconnected at Mr Zhang’s end at 3.49pm as I was completing my oral judgment. The orders that I made were made in his absence.
5. Although Mr Zhang lives in Griffith, he nominated as his address for service a post office box in Campsie, New South Wales. That post office box is controlled by a friend of Mr Zhang’s. Mr Zhang told me that his affidavit of 18 August 2014 was prepared with the assistance of his friend. I see that the affidavit was witnessed by Jie Yu, who was a registered migration agent who assisted Mr Zhang before the Tribunal. Mr Zhang also told me that although he had received the court book filed on 4 July 2014, he had left it with his friend in Sydney. I overcame that difficulty by having the interpreter read relevant parts of the Tribunal decision to Mr Zhang.
6. In his application, Mr Zhang asserts that the Tribunal discriminated against him and failed to take his real situation into consideration. He apparently considers that the Tribunal decision is unfair. Mr Zhang was invited to attend a hearing before the Tribunal, however he did not do so. The Tribunal records at [3] of its decision^[1] that his registered migration agent confirmed that the hearing invitation had been received. The Tribunal exercised its discretion to proceed to finalise the review without providing a further hearing opportunity.
7. The Tribunal noted at [7]^[2] of its reasons that Mr Zhang’s visa was cancelled on the basis that he was not enrolled in a registered course. It appears from page 1 of the court book that someone in the Minister’s Department derived that information from a database known as PRISMS. In his oral submissions before me, Mr Zhang complained that he was not properly notified of the cancellation decision. At [8] of its reasons, the Tribunal records that Mr Zhang was informed of the intention to cancel his visa and made no response. He must have been aware of the cancellation decision because he applied to the Tribunal to review it. The Tribunal records at [8] of its reasons that Mr Zhang made no submissions by way of challenging the findings of the Minister’s delegate. The Tribunal also records that Mr Zhang made no submissions directed to the Tribunal’s exercise of its discretion in relation to cancellation. At [9] of its reasons, the Tribunal records that it had no evidence that Mr Zhang had been enrolled in a registered course after 19 June 2013. The Tribunal found on that basis that Mr Zhang was not enrolled in a registered course and did not comply with condition 8202(2) on his visa.
8. The Tribunal had nothing before it to support the exercise of its discretion in Mr Zhang’s favour. For those reasons, the Tribunal affirmed the delegate’s decision. I see no arguable case of jurisdictional error by the Tribunal.
9. In his affidavit, Mr Zhang asserts, contrary to the Tribunal’s reasons at [9], that he had been enrolled in two courses in the period after 19 June 2013. That is a bald assertion. Although Mr Zhang told me in his oral submissions that he had evidence to support it, Mr Zhang was not able to explain to me why he had put nothing before the Tribunal in support of those assertions. Somewhat contradictorily, he told me that he had difficulties in his courses because of poor English. At one point, he appeared to be saying that he ceased being enrolled but I was not able to obtain any confirmation of that from him. Whatever may be the true position, Mr Zhang did not put anything before the Tribunal to support a favourable decision on the review. In the circumstances, the Tribunal effectively had no option but to affirm the decision under review.
10. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
11. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,200.
12. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 21 November 2014

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^[1] Court Book (CB), page 63
^[2] CB 63