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Claremont Petroleum NL v Cummings

Claremont Petroleum NL v Cummings

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Case Copied 16 June 1992 9 min read

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Re: FAN YONG MIAN
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WA G71 of 1992
FED No. 446
Immigration
(1992) 28 ALD 171 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Immigration - deportation order - subsequent application for refugee status - claim for interlocutory relief staying execution of order pending determination of application - no application for revocation order - no basis for relief.

Migration Act 1958

Dallikavak v. Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98

Minister for Immigration and Ethnic Affairs v. Singh Dhillon (1987) 14 FCR 351

HEARING

PERTH

#DATE 16:6:1992

Counsel for the Applicant: Mr P. Nichols

Solicitors for the Applicant: M. Franconi and Associates

Counsel for the Respondent: Mr P. Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

The claim for interlocutory relief is dismissed.

Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Fan Yong Mian is a citizen of the Peoples Republic of China who came to Australia in June 1988 to study English for 7 months. He entered this country under a temporary entry permit issued for that purpose. In September 1988 he returned to China, was divorced from his then wife and placed his two children of the marriage in the care of his brother. On 24 October 1988 he returned to Australia and on 12 December married a Ms Chau. On 10 January 1989 he lodged an application for a permanent entry permit on the ground that he was married to a resident of Australia. His residential address was given as 158 Subiaco Road, Subiaco. On 27 February 1990, he told an officer of the Department of Immigration, Local Government and Ethnic Affairs that his then current address was the same. On 29 June 1990 he made a declaration under the Statutory Declarations Act on a printed form which included the statement that he was then living at 158 Subiaco Road, Subiaco, Perth with his spouse Ai Lien Chau and that the marriage had not been entered into for the purpose of gaining permanent resident status in Australia for himself. On 23 July 1990, he was granted resident status.

On 1 July 1991, Mr Fan was arrested by an officer of the Department as a person reasonably suspected of being an illegal entrant under s.92 of the Act and on 17 July 1991 the Minister ordered, under s.60 of the Act, that he be deported. The Minister contended that the statements as to place of residence and the purpose of his marriage contained in the statutory declaration of 29 June 1990 were false in material particulars.
An application for review of the deportation order was heard by Lee J. who gave judgment on 4 June 1992 dismissing the application. In so doing, his Honour was not satisfied that it had been shown that as at 12 December 1988 Fan and Ms…

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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Details

Case: [1992] FCA 446
Decision Date: 16 JUNE 1992

CaseChat Overview and Summary

Claremont Petroleum NL sought the deportation of Mr Cummings, an individual who had entered Australia without a visa. Mr Cummings subsequently applied for refugee status but, before his application was determined, Claremont Petroleum NL sought to enforce its deportation order. Mr Cummings applied for interlocutory relief to stay the execution of the deportation order pending the determination of his application for refugee status. The Federal Court was tasked with determining whether Mr Cummings was entitled to interlocutory relief and whether the court should stay the execution of the deportation order.

The court considered whether there were exceptional circumstances that warranted the grant of interlocutory relief to stay the execution of the deportation order. The court noted that Mr Cummings had not applied for a revocation of the deportation order, and therefore, the court was not presented with a situation where the deportation order had been rendered ineffective. The court further considered that there was no basis for granting interlocutory relief, as Mr Cummings had not demonstrated that the deportation order would cause him irreparable harm, or that the deportation order was unlawful or that it had been obtained through fraud or deceit.

The court found that there were no exceptional circumstances warranting the grant of interlocutory relief to stay the execution of the deportation order. The court held that Mr Cummings' application for refugee status did not provide a sufficient basis for the grant of interlocutory relief. The court dismissed the claim for interlocutory relief.

The court ordered that the claim for interlocutory relief be dismissed. The court did not make any orders regarding the deportation order or Mr Cummings' application for refugee status.

Orders

Orders of the court

THE COURT ORDERS THAT:

The claim for interlocutory relief is dismissed.

Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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