Zhang & Anor v Minister for Immigration & Anor [2010] FMCA 109 (10 February 2010)

Federal Magistrates Court of Australia

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Zhang & Anor v Minister for Immigration & Anor [2010] FMCA 109 (10 February 2010)

Last Updated: 22 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZHANG & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 109

MIGRATION – Skilled Independent Student Visa – IELTS test – whether Tribunal exercised its discretion appropriately when it refused to adjourn hearing for 3 months.

Migration Regulations 1994

First Applicant:

SHEN ZHANG

Second Applicant:

LEI CAO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2465 of 2009

Judgment of:

Raphael FM

Hearing date:

10 February 2010

Date of Last Submission:

10 February 2010

Delivered at:

Sydney

Delivered on:

10 February 2010

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $3,000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2465 of 2009

SHEN ZHANG

First Applicant

LEI CAO

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Zhang seeking review of a decision by the Migration Review Tribunal which itself affirmed a decision of a delegate of the Minister made on 27 October 2008 not to grant him a DD subclass 880 Skilled Independent Overseas Student Visa. The delegate had declined to grant the visa because the applicant had not complied with clause 880.223 of Schedule 2 of the Migration Regulations 1994 (the “Regulations”) which required him to have vocational English as defined in that sub clause. The relevant definition was that he was a person who satisfied the Minister that:
   • “He had achieved an IELTS test score of at leave for each of the four test components of speaking, reading, writing and listening in a test conducted:
     • (a) not more than 12 months before the day upon which the application was lodged or;
     • (b) during the processing of the application.”
2. The applicant had not provided the delegate with any results that would satisfy this criteria. What he did do was supply the delegate with a booking receipt for a test scheduled on 14 June 2008 and another one for a test scheduled on 11 October 2008. The delegate concluded that the applicant had not demonstrated that he had vocational English as specified in Regulation 1.15B and consequently did not satisfy the requirements of Regulation 880.223. Mr Zhang applied for review of that decision. The Tribunal offered Mr Zhang an opportunity to come and give evidence and present arguments and he completed a form [CB 115] indicating that he would attend such a hearing.
3. It is common ground that for the purposes of the Tribunal hearing no further evidence of a successful IELTS was provided at that stage. On 14 September 2009 the agent, Ms Mo, wrote to the Tribunal informing it that the applicant had decided not to attend the hearing which was due to take place on 17 September [CB 117]. There was then a further letter asking the Tribunal to delay a decision so that “the applicant could prepare evidence and documents” [CB 118]. As a result of that fax someone from the Tribunal rang the agent and had a conversation from which that person learned that the relevant document was the IELTS test result, or later a booking for an IELTS test. The Tribunal officer asked the agent to call back the next day and provide some further information [CB 119].
4. On 16 September the agent wrote again to the Tribunal:
   • “Thank you very much for your kind consideration after receiving my fax today. Further to our conversation on the phone, please kindly find the attached IELTS booking receipt for applicant Zhang Shen. The date of the test is on 12 December 2009, which is the earliest date he could book at the moment. Please be noted that he is still looking for other available bookings earlier than the one already booked.
   • If the applicant is given an opportunity to submit this new IELTS which is in more than two months’ time, the applicant’s fate could be totally different...” [CB 120].
5. On 17 September 2009 the Tribunal wrote to Mr Zhang setting out the history of the correspondence between the agent and the Tribunal and saying:
   • “The Tribunal has considered your request to be granted ‘more time to prepare the evidence and documents’ and your request to be given an opportunity to submit the IELTS test results for the IELTS test which has been booked for 12 December 2009. In the circumstances, the Tribunal will not delay its decision so as to enable Mr Zhang to submit the results of an IELTS test he will sit on 12 December 2009. The Tribunal will not make its decision for one week to enable you to provide any further evidence or documents.” [CB 124]
6. On 28 September 2009 the Tribunal handed down its decision which affirmed the decision of the delegate. There was nothing else the Tribunal could have done because, at the time it came to its decision, there was no evidence of the applicant having passed the IELTS test that was a requirement for the visa to be granted.
7. On 13 October 2009 Mr Zhang filed an application with this court, seeking a review of the decision. His ground of application was:
   • “The applicant’s low IELTS result was due to some compelling reasons which were not taken into consideration by DIACM Tribunal.”
8. I do not know who prepared this application for Mr Zhang but it clearly does not respond to his situation because there was no IELTS result for the Tribunal to consider. When he appeared before me today he told me that he had not attended the hearing and he did not know that his migration agent had said that he would not come. I find that statement rather difficult to comprehend because, as I said, the response to hearing invitation [CB 115] was completed not by the agent but by Mr Zhang himself. So if he had wanted to go to the hearing he could have done so.
9. The hearing was on 17 September and the Tribunal decision was not made for a further week thereafter. I have not called Mr Zhang to give any evidence because I do not think that this is relevant in any event, but the indications from the documentation in the court book would appear to be that the migration agent was acting on instructions. There is no evidence that an unknowing Mr Zhang appeared at the Tribunal offices expecting a hearing.
10. In these circumstances, the only question that could possibly be raised is whether the Tribunal failed in the exercise of its discretion not to allow its decision to be put off until Mr Zhang could have provided it with an IELTS test result for a test that was to take place some three months in advance. Given that the reason for the delegate’s decision, almost a year earlier, had been the failure to provide a satisfactory test result, the responsibility was on Mr Zhang to improve his English before the Tribunal heard his application. If he had done that and passed the test he would be given a visa, but he did not. I cannot see that the Tribunal acted in any perverse manner when it exercised its discretion not to adjourn or further delay the hearing of the application until after December.
11. In those circumstances there was no action the Tribunal could have taken other than to affirm the decision of the delegate. No jurisdictional error has been found. The application is dismissed. The applicant shall pay the first respondent’s costs which I assess in the sum of $3,000.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 18 February 2010