Zheng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 01 December 2021
• Neutral Citation: [2021] FCA 1509
• Date: 01 December 2021

Federal Court of Australia

Zheng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1509

File number:	NSD 446 of 2021
Judgment of:	CHEESEMAN J
Date of judgment:	1 December 2021
Catchwords:	MIGRATION – application for judicial review under s 476A(1)(c) of the Migration Act 1958 (Cth) of the Minister’s decision not to revoke the mandatory cancellation of applicant’s visa– where the Minister found that the applicant, as a citizen of the People’s Republic of China (PRC), would have the same level of access to welfare and public support as other PRC citizens if returned to the PRC – whether that finding was made in the absence of supporting material or rational basis– whether jurisdictional error – Held: no error – application dismissed.
Legislation:	Migration Act 1958 (Cth), ss 476A(1)(c), 476A(2), 501(3A), 501CA(4)
Cases cited:	Guclukol v Minister for Home Affairs [2020] FCAFC 148 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 Navoto v Minister for Home Affairs [2019] FCAFC 135 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 Renton v Minister for Home Affairs [2021] FCA 931 Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162; (2018) 162 ALD 495 Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 144 Uelese v Minister for Immigration and Border Protection and Another [2016] FCA 348; (2018) 248 FCR 296 XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619 XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	63
Date of hearing:	14 September 2021
Counsel for the Applicant:	Dr J Donnelly
Solicitor for the Applicant:	Du & Associates Lawyers
Counsel for the Respondent:	Mr G Johnson
Solicitor for the Respondent:	Sparke Helmore

ORDERS

		NSD 446 of 2021
BETWEEN:	JIAXING ZHENG Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

order made by:	CHEESEMAN J
DATE OF ORDER:	1 December 2021

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the costs of the respondent.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1. The applicant, Jiaxing Zheng, seeks judicial review pursuant to s 476A(1)(c) of the Migration Act 1958 (Cth) of a decision under s 501CA(4) of the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, not to revoke the mandatory cancellation of Mr Zheng’s Class CA Subclass 143 Contributory Parent visa.

2. The relief sought by Mr Zheng in his originating application is an order quashing the decision of the Minister and a writ of mandamus remitting the matter to the Minister for determination according to law. The Court’s jurisdiction to review the decision of the Minister is the same as the jurisdiction of the High Court pursuant to s 75(v) of the Constitution: s 476A(2).

3. Mr Zheng is a citizen of the People’s Republic of China (PRC). He moves on an originating application of 19 May 2021. The Minister’s decision is challenged solely on the basis that the Minister made a finding for which it is contended there was no evidence, or more accurately, no material. The impugned finding is that Mr Zheng, as a citizen of the PRC, “would have the same access to welfare … and public support as other nationals.”

4. For the reasons that follow, the application is dismissed.

Background

5. Mr Zheng came to Australia on 18 January 2014, and on 4 December 2015 was granted a visa.

6. On 29 July 2020, Mr Zheng was convicted in the District Court of New South Wales of a number of offences including having sexual intercourse with a person between the age of 14 and 16 years and producing and disseminating child abuse material. The disseminated material was a video of sex acts between Mr Zheng, then aged 19 years, and the victim, then aged 15 years. At the time the video was made, they were in a sexual relationship notwithstanding that the victim was below the age of consent. The victim agreed to being videoed and, initially, to Mr Zheng retaining the video for private viewing. The circumstances relating to the dissemination of the video were described by the Minister as follows:

39. In March 2018 the relationship between Mr ZHENG and the victim ended. At that time the victim asked for the video recording to be deleted and Mr ZHENG gave her his mobile phone so she could do so. Unbeknown to the victim, Mr ZHENG either retained or later recovered a copy of the video.

40. At the time of the breakup, the victim also removed Mr ZHENG from her social media messaging apps. Later, in October 2018, Mr ZHENG sent fresh friend requests to the victim via QQ and Wechat apps, asking to speak to her. The messages stated that there would be ‘consequences’ if the victim did not accept this friend request. In subsequent messages Mr ZHENG asked about a vehicle he had seen in the victim’s driveway and enquired whether it belonged to her new boyfriend. When the victim replied ‘I am not your girlfriend, we are nothing to each other’, Mr ZHENG replied ‘If we are nothing to each other then I can post those things’.

41. The victim was afraid that Mr ZHENG was referring to the video of her engaging in sexual acts with him, so she deleted him from her QQ contacts. After consulting with her mother, the victim also sent Mr ZHENG a message which states ‘If you post anything of me we will be going to the police’, and she later rejected further friend requests from him.

42. On or about 12 May 2019, Mr ZHENG uploaded to a Chinese language pornography website the video which had been created from the footage that he had taken of himself with the victim … The video was publicly accessible, did not require registration or payment to view, her face was clearly depicted in the video, and her QQ social media address details were embedded. The victim received multiple unsolicited friend requests on her QQ account from strangers which referred to the pornographic video posting. She later found the video described in those messages, which contained her QQ username and reported the matter to police.

7. Mr Zheng was sentenced to...