Chen v Minister for Immigration & Multicultural Affairs [2001] FCA 285
MIGRATION – judicial review – whether the Migration Review Tribunal was satisfied that the applicant “is making”, or is the subject of, acceptable arrangements to depart Australia – whether Tribunal erred in considering the stage at which any such arrangements had reached – whether Tribunal had erred by requiring the applicant to have a passport or identity document and an airline ticket – whether the Tribunal erred in taking into account the genuineness of the applicant’s expressed intention to depart Australia – whether the Tribunal relied on Regulations that had been repealed and a policy which had been replaced – Tribunal did not rely on repealed Regulations – substituted policy was in identical terms – application dismissed.
CHEN XUE XU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 218 of 2000
CARR J 20 MARCH 2001 PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 218 OF 2000
BETWEEN:
CHEN XUE XU Applicant
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:
CARR J
DATE OF ORDER:
20 MARCH 2001
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 218 OF 2000
BETWEEN:
CHEN XUE XU Applicant
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:
CARR J
DATE:
20 MARCH 2001
PLACE:
PERTH
REASONS FOR JUDGMENT
INTRODUCTION
This is an application for an order of review of a decision of the Migration Review Tribunal made on 27 November 2000 by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a Bridging E Class WE (Subclass 050) visa (which I shall refer to in these reasons as a bridging visa) to the applicant.
This application was heard at the same time as three other applications (Nos W215, W216, and W217 of 2000) in which the factual circumstances were very similar to those in this case. In each case the applicant relied on identical grounds of review and made identical submissions. The respondent made one set of submissions for all four applications, with some minor variations to reflect slight differences in the Tribunal’s reasons. The reasoning in these reasons for judgment is substantially similar to the reasons for judgment in the three other matters.
FACTUAL BACKGROUND
The applicant entered Australia on 4 May 1997 on a false passport and holding a…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Chen v MIMIA [2001] FCA 285
Case
[2001] FCA 285
Decision Date
CaseChat Overview and Summary
In the case of Chen v Minister for Immigration and Multicultural Affairs, the Federal Court was tasked with reviewing the decision of the Refugee Review Tribunal, which had affirmed the Minister's refusal to grant the applicant a bridging visa. The applicant, who had entered Australia on a false passport and subsequently applied for a Protection Visa, was detained under the Migration Act 1958 after his visa application was refused. The primary issue before the court was whether the Tribunal correctly applied the relevant statutory criteria, specifically the requirement that the applicant be making, or be the subject of, acceptable arrangements to depart Australia, as stipulated in Subclause 050.212(2) of the Migration Regulations.
The court examined whether the Tribunal adequately considered the applicant's claim to acceptable arrangements for departure. The applicant argued that he was prepared to return to China and sought the bridging visa solely to settle his affairs. However, the Tribunal had affirmed the delegate's decision, citing that the applicant was not making acceptable arrangements to depart. The court found that the Tribunal's reasoning was sound and consistent with the statutory criteria. The Tribunal's decision was aligned with the Minister's Instructions (MSI 294), which mirrored the statutory language, ensuring that the same factors were considered. Therefore, the court concluded that the Tribunal did not err in its assessment of the applicant's departure arrangements.
The Federal Court dismissed the applicant's appeal, affirming the Tribunal's decision. The court ordered that the applicant pay the respondent's costs, reflecting the meritless nature of the appeal. This outcome underscored the importance of adhering to the statutory criteria in visa applications and the role of the Tribunal in reviewing such decisions.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
Background
Background to the litigation
This application was heard at the same time as three other applications (Nos W215, W216, and W217 of 2000) in which the factual circumstances were very similar to those in this case. In each case the applicant relied on identical grounds of review and made identical submissions. The respondent made one set of submissions for all four applications, with some minor variations to reflect slight differences in the Tribunal’s reasons. The reasoning in these reasons for judgment is substantially similar to the reasons for judgment in the three other matters. FACTUAL BACKGROUND The applicant entered Australia on 4 May 1997 on a false passport and holding a Subclass 676 Short Stay Visitor visa valid until 4 August 1997. On 14 May 1997 he lodged an application for a Protection Visa. On 12 March 1998 the applicant’s application for a Protection Visa was refused. The applicant applied to the Refugee Review Tribunal for review of that decision. On 14 October 1998 the Refugee Review Tribunal affirmed the decision. The applicant applied, under s 417 of the Migration Act 1958 (Cth) (“the Act”), to the respondent to exercise his power personally to substitute a more favourable decision for that of the Refugee Review Tribunal. The respondent decided not to do so. In November 1998 the applicant became an unlawful non-citizen. On 31 January 2000 the applicant was located by officers of the respondent’s department and taken into detention by them pursuant to s 189 of the Act. The applicant’s position is that he is prepared to return to China, but seeks a bridging visa so that he can be released from immigration detention to settle his affairs. Since being in immigration detention the applicant has made three previous applications for a bridging visa. Each of those applications was refused. In two of those cases the applicant sought review before the Tribunal and in both of those cases the Tribunal affirmed the primary decision. The fourth application, which is the subject of this matter, was lodged on behalf of the applicant on 17 November 2000. On 20 November 2000 the respondent’s delegate refused the application. One of the grounds for such refusal was that the applicant was not making, and nor was he the subject of, acceptable arrangements to depart Australia. On 21 November 2000 the applicant applied to the Tribunal for review of that decision. THE STATUTORY AND REGULATORY REGIME It is not necessary, in these reasons, to describe in full the statutory and regulatory regime pursuant to which an applicant may obtain a bridging visa of the class sought by the applicant. A useful description of that regime can be found in the judgment of Lee J in Tutugri v Minister for Immigration and Multicultural Affairs [1999] FCA 1785. It is sufficient to refer to one of the criteria which an applicant for such a visa must satisfy both at the time of application and at the time of decision [see Clause 050.21 and 050.22 of Schedule 2 to the Migration Regulations (1994)]. That criterion is contained in Subclause 050.212(2) (“the Subclause”) and reads as follows:“An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.”
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
CARR J
The short answer to this point is that MSI 294 reproduces the above paragraph in identical terms. Thus, to the extent that the Tribunal may have taken into account the factors referred to in the above paragraph, it was taking into account the identical factors referred to in the same paragraph reproduced in MSI 294. There was no difference, not even a material difference, between the two paragraphs, as to which see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583.CONCLUSION For the above reasons the application will be dismissed.